text:
    STATE OF CONNECTICUT v. DARRYL LEE HARRELL
    (15328)
    Peters, C. X, and Borden, Norcott, Katz and Palmer, Js.

      Argued April 25
    officially released August 13, 1996

      Harry Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan Alexander, assistant state’s attorney, for the appellant (state).

      Kent Drager, assistant public defender, for the appellee (defendant).
   NORCOTT, J.

The sole issue in this appeal is whether the term “murder” as used in the capital felony statute, General Statutes § 53a-54b, includes unintentional murder in addition to intentional murder. The state charged the defendant, Darryl Lee Harrell, with one count of arson in the first degree in violation of General Statutes § 53a-lll, two counts of arson murder in violation of General Statutes § 53a-54d, and one count of capital felony in violation of General Statutes § 53a-54b (8). The trial court dismissed the count of capital felony after determining that only an intentional murder can be a predicate murder under § 53a-54b (8), and that the state had failed to establish probable cause that the defendant had violated § 53a-54b (8). Pursuant to General Statutes § 54-96, the state appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The charges against the defendant stemmed from his alleged role in the arson of an apartment building that resulted in the deaths of two people. After a hearing in probable cause, the trial court, Corrigan, J., found that probable cause existed to support the arson murder counts. With respect to the capital felony count, however, the trial court concluded that, as a matter of law, only an intentional murder can be a predicate murder to a capital felony charge under § 53a-54b (8). The trial court then determined that, in light of the facts adduced at the hearing in probable cause, the counts of arson murder did not constitute “murder” under § 53a-54b (8) because there was no evidence to indicate the defendant’s intent to cause the two deaths. Accordingly, the trial court concluded that “the [s]tate has failed to prove probable cause to hold the defendant on the charge of [c]apital [fjelony under ... § 53a-54b (8).” Thereafter, the trial court, Miaño, J., dismissed the capital felony count and granted the state permission to appeal that ruling. This appeal followed.

On appeal, the state contends that the term “murder” in the capital felony statute is a generic term that broadly and unambiguously refers to alternate methods for committing the crime of murder, and thus encompasses unintentional as well as intentional conduct. The defendant contends, to the contrary, that the term “murder” unambiguously is limited to homicide in its most aggravated form, namely, intentional murder. The defendant contends, in the alternative, that the term “murder” is ambiguous and that this ambiguity must be resolved in his favor. We agree with the defendant’s alternative argument, namely, that the term “murder” is sufficiently ambiguous that we must interpret it against the imposition of harsher punishment. Accordingly, we conclude that the term “murder” in the capital felony statute may be properly applied only to intentional murder and does not encompass unintentional murder.

Our analysis of the issue of whether the reference to “murder” in the capital felony statute includes unintentional murder as well as intentional murder “is guided by well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996); State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995).

We are also mindful of well established principles that govern the construction of penal statutes. “Courts must avoid imposing criminal liability where the legislature has not expressly so intended.” (Emphasis added.) State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Accordingly, “[cjriminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995); State v. Brown, 235 Conn. 502, 517, 668 A.2d 1288 (1995); State v. Hinton, 227 Conn. 301, 317, 630 A.2d 593 (1993).

Finally, in this case we are construing the capital felony statute. The resolution of this issue could result in the imposition of the death penalty on this defendant and on other defendants charged with similar offenses. It is axiomatic that any statutory construction implicating the death penalty must be based on a conclusion that the legislature has clearly and unambiguously made its intention known. See State v. Jones, supra, 234 Conn. 340; State v. Ross, 230 Conn. 183, 200, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Breton, supra, 212 Conn. 268-69. The rules of strict construction and lenity applicable to penal statutes generally are “especially pertinent to a death penalty statute such as § 53a-54b.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); State v. Jones, supra, 340. Keeping in mind these governing principles, we turn to the task of interpreting the term “murder” in the capital felony statute.

The capital felony statute sets forth with specificity the offenses that may form the basis of a charge of capital felony. See footnote 1. Under the express terms of all but one of the subdivisions of the capital felony statute, a defendant must commit a “murder” in order to violate the statute. Absent from the text of the statute, however, is any clear indication whether a predicate murder under the statute may be unintentional as well as intentional.

The state invokes the felony murder and arson murder statutes; General Statutes §§ 53a-54c and 53a-54d; as the basis for its claim that the term “murder” in the capital felony statute unambiguously encompasses unintentional murder. Specifically, the state contends that all three statutes apply similarly in the context of “murder” without limiting the term to intentional murder. The state then contends that because a specific intent is not required to violate the felony murder and arson murder statutes; see State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985) (arson murder); State v. Young, 191 Conn. 636, 639-44, 469 A.2d 1189 (1983) (felony murder); a specific intent is likewise not required for “murder” under the capital felony statute. We disagree.

Although the state’s argument has certain linguistic appeal, we find the defendant’s response to have equal force. The defendant argues that the use of the term “murder” in the capital felony statute, when read in conjunction with the use of the same term in other penal code provisions, does not evince an unambiguous intent on the part of the legislature to encompass unintentional murder within the meaning of the term “murder.” The defendant contends that whenever the legislature has intended to include unintentional murder as a predicate murder under the capital felony statute, it has so provided unambiguously. Section 53a-54b (6) provides that a person is guilty of capital felony if that person is convicted of “the illegal sale, for economic gain, of cocaine, heroin or methadone to a person who dies as a direct result of the use by him of such cocaine, heroin or methadone . . . .’’In subdivision (6) of § 53a-54b, the legislature omitted the term “murder” in defining an unintentional murder that is a predicate murder for a violation of the capital felony statute. The defendant argues that the linguistic difference between subdivision (6), the only subdivision of the capital felony statute that clearly refers to unintentional murder, and the other subdivisions of the capital felony statute, which expressly refer to “murder,” reflects ambiguity as to the proper scope of the term “murder.”

In addition, the defendant asserts that the ambiguity in the term “murder” is further reflected in the evolution of the present capital felony statute. When the legislature enacted the capital felony statute in 1973; Public Acts 1973, No. 73-137, § 3; the legislature contemporaneously eliminated felony murder from the penal code; Public Acts 1973, No. 73-137, § 15; and redefined “murder” so as to encompass only intentional murder. Public Acts 1973, No. 73-137, § 2. Thus, at the time when the legislature enacted the capital felony statute, intentional murder was the only form of murder expressly recognized in the penal code. The defendant argues that although the legislature subsequently enacted the felony murder statute in 1974 in order to restore the crime of felony murder to the penal code; Public Acts 1974, No. 74-186; see State v. Chicano, 216 Conn. 699, 718-19, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); the express limitation of “murder” to intentional murder when the legislature enacted the capital felony statute is a strong indication that the term “murder” in the capital felony statute is limited to intentional murder.

To counter the restrictive definition of “murder” contained in the penal code when the legislature enacted the capital felony statute, the state points to provisions of the capital felony scheme enacted in 1973 that it contends evince the legislature’s intent that “murder” in the capital felony statute encompasses both unintentional and intentional murder. The state first points to § 53a-54b (6), which encompasses unintentional murder as a predicate murder for a violation of the capital felony statute. Subdivision (6) of § 53a-54b, however, unlike the other subdivisions of the capital felony statute, makes no reference to “murder.” The defendant argues that the inclusion of § 53a-54b (6) in the capital felony statute in 1973, therefore, provides little support for the state’s claim that, when the legislature enacted the capital felony statute, the term “murder” included unintentional murder, in contravention of the explicit definition of “murder” contained in the penal code at that time.

The state also notes that one of the statutory mitigating factors enacted contemporaneously with the capital felony statute contemplated the inclusion of unintentional murder in addition to intentional murder under the statute. See Public Acts 1973, No. 73-137, § 4 (f). The state presents a forceful argument that this statutory mitigant, which applies if a defendant “could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person”; General Statutes § 53a-46a (g) (5); contemplates a charge of capital felony predicated upon unintentional murder rather than murder involving a specific intent. While we are persuaded that the state’s argument raises ambiguity as to whether the legislature intended to limit “murder” in the capital felony statute to intentional murder, the state’s argument, however, does not definitively resolve this issue in its favor. Although the state’s argument based on the language of the mitigating factor provision merits strong consideration, we find that the defendant’s argument based on the fact that intentional murder was the only form of “murder” expressly recognized under the penal code at the time of the enactment of the capital felony-statute merits equal consideration. As a result, we cannot conclude, from the language of the foreseeability-based mitigating factor, that the legislature unequivocally intended the term “murder” in the capital felony statute to include unintentional murder as well as intentional murder.

Finally, in support of its claim that the term “murder” in the capital felony statute encompasses both unintentional and intentional murder, the state points to the legislative history behind the creation of the capital felony, felony murder and arson murder statutes. Our review of the relevant legislative history, however, fails to resolve in an unequivocal manner the ambiguity as to the proper scope of the meaning of the term “murder” in the capital felony statute.

After a careful consideration of the parties’ arguments concerning the language of the capital felony statute and the statute’s relationship to other provisions of the penal code, and a review of the relevant legislative history, we are persuaded that it is not apparent that the legislature unambiguously intended both intentional and unintentional murder to fall within the meaning of the term “murder” in the capital felony statute. In light of the ambiguity surrounding the proper scope of the definition of “murder,” we must construe that term in favor of the defendant. See, e.g., State v. Jones, supra, 234 Conn. 340; State v. Hinton, supra, 227 Conn. 317. When, as in this case, the imposition of the death penalty is the possible consequence of our decision, we must not toy with competing, plausible interpretations of a statutory penal scheme. In the present case, the state has failed to establish the unambiguous indication of legislative intent necessary to overcome the principles of strict construction and lenity that guide any interpretation of the death penalty statute.

We therefore hold that the term “murder” in the capital felony statute may be applied only to intentional murder. Accordingly, the trial court properly concluded that, under the circumstances of this case, the two counts of arson murder could not serve as predicate murders for a charge of capital felony under § 53a-54b (8).

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54b provides: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following: (1) Murder of a member of the division of state police within the department of public safety or of any local police department, a chief inspector or inspector in the division of criminal justice, a sheriff or deputy sheriff, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, an official of the department of correction authorized by the commissioner of correction to make arrests in a correctional institution or facility, or any fireman, while such victim was acting within the scope of his duties; (2) murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain; (3) murder committed by one who has previously been convicted of intentional murder or of murder committed in the course of commission of a felony; (4) murder committed by one who was, at the time of commission of the murder, under sentence of life imprisonment; (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safely; (6) the illegal sale, for economic gain, of cocaine, heroin or methadone to a person who dies as a direct result of the use by him of such cocaine, heroin or methadone; (7) murder committed in the course of the commission of sexual assault in the first degree; (8) murder of two or more persons at the same time or in the course of a single transaction.”

       General Statutes § 53a-54d provides: “Arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”

       General Statutes § 54-96 provides: “Appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The defendant also contends that the state’s interpretation of the capital felony statute would render that statute unconstitutional because “it reaches felony murders and arson murders [for] which the death penalty may not be imposed and it does not contain any mechanism for the jury to find the additional elements required before the death penalty may be constitutionally imposed on a person convicted of a capital offense through the mechanism of felony murder.” Because we affirm the judgment of the trial court as a matter of statutory construction, we need not reach the constitutional issue raised by the defendant. See State v. Metz, 230 Conn. 400, 419-20, 645 A.2d 965 (1994); Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 572, 620 A.2d 118 (1993).

       Subdivision (6) of § 53a-54b is the only subdivision of the capital felony statute that does not use the term “murder.” Under that subdivision, a defendant may violate the capital felony statute by selling cocaine, heroin or methadone to someone who subsequently dies from ingesting the narcotic.

       General Statutes § 53a-54c provides: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical ir\jury.”

       See footnote 2.

       The state contends that if the term “murder” in the capital felony statute refers only to intentional murder, then the express reference to “intentional murder” in § 53a-54b (3) would render the term “intentional” superfluous. The defendant responds that the reference to “intentional murder” in § 53a-54b (3) serves to emphasize that a prior conviction of either intentional murder or felony murder may serve as a component part of the predicate murder under this subdivision.

       Public Acts 1973, No. 73-137, § 15, provides: “Sections 53a-46, 53a-54 and 53a-93 of the general statutes are repealed.”
      General Statutes (Rev. to 1972) § 53a-54 provided in relevant part: “Murder defined. Affirmative defenses. Evidence of mental condition. Classification, (a) A person is guilty of murder when . . . acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, deviate sexual intercourse in the first degree, sexual contact in the first degree, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”
      The legislature did not enact the arson murder statute until 1979. See Public Acts 1979, No. 79-570. Until the enactment of the arson murder statute, arson murder had been one method of committing felony murder. See General Statutes (Rev. to 1972) § 53a-54 (a) (2).

       Public Acts 1973, No. 73-137, § 2, provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes suicide by force, duress or deception . . . .”

       Public Acts 1973, No. 73-137, § 4 (f), provides in relevant pari,: “The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict . . . that at the time of the offense ... he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.” See General Statutes § 53a-46a (g) (5).

       We note that the state concedes that, even if the mitigating factor currently codified at § 53a-46a (g) (5) applied only to unintentional conduct, the mitigating factor would not be a nullity because it could apply to a charge of capital felony predicated on a violation of § 53a-54b (6). We express no opinion as to whether the application of the mitigating factor contained in § 53a-46a (g) (5) is limited to a charge of capital felony predicated on § 53a-54b (6). Even if we were to conclude that the statutory mitigant is limited to a violation of § 53a-54b (6), that conclusion nevertheless does not definitively resolve the ambiguity in the term “murder” contained in the capital felony statute.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    PAMELA F. ELGAR v. ERIC M. ELGAR, ADMINISTRATOR (ESTATE OF GEORGE P. ELGAR)
    (15272)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued March 27
    officially released August 13, 1996

      Miles F. McDonald, Jr., with whom was Donat C. Marchand, for the appellant (plaintiff).

      A. Reynolds Gordon, with whom was Amy J. Greenberg, for the appellee (defendant).
   NORCOTT, J.

The principal issue in this appeal is whether an antenuptial agreement between the plaintiff, Pamela F. Elgar, and her husband, George P. Elgar (decedent), which contains a New York choice of law provision, is valid and enforceable. The plaintiff appeals from a judgment of the trial court wherein the court concluded that the antenuptial agreement: (1) contained a valid choice of law provision specifying that the agreement was to be interpreted according to New York law; and (2) is valid and enforceable under New York law. We affirm the judgment of the trial court.

The relevant factual and procedural history is as follows. The plaintiff and the decedent were married in 1988. Prior to their marriage, they had executed an antenuptial agreement wherein each party had waived his or her rights to the other’s property in the event of death or divorce. In 1990, the decedent died intestate. There were no children of the marriage. The decedent was survived by two adult children from a prior marriage, Marie Elgar Hopper and Eric Elgar, the defendant in the present action. The Westport Probate Court appointed the defendant as the administrator of his father’s estate. Subsequently the antenuptial agreement was admitted to and approved by the Probate Court, and the plaintiff, pursuant to the agreement, was divested of her statutory share of the decedent’s estate. Thereafter, the plaintiff appealed the decree of the Probate Court to the Superior Court pursuant to General Statutes § 45a-186.

The case was referred to an attorney trial referee who conducted a trial de novo. The referee made the following findings of fact and recommended judgment for the defendant. The plaintiff and the decedent were married in Westport on September 25,1988, after having lived together for the previous four years. Both were experienced business people. During the month of July prior to their marriage, the decedent had told the plaintiff that he would require her to sign an antenuptial agreement before they could be married, to which she had responded “[f]orget about it.”

On the morning of September 22,1988, after the wedding date had been set for September 25, the invitations had been sent, and the acceptances had been received, the decedent informed the plaintiff that she was to sign an antenuptial agreement on the following day at the New York office of his lawyer, Stephen J. Corriss.

On September 23,1988, the plaintiff saw the antenuptial agreement for the first time. Due to her immediate impending marriage and other events in her life, it was a busy day for the plaintiff and she had a lot on her mind. When she arrived at Corriss’ office, however, she had already determined that she was going to sign the agreement and that she did not intend to read it. She testified that she understood the agreement to apply only in the event of divorce and had not considered that it would apply in the event of the decedent’s death. Moreover, she believed that her refusal to sign the agreement would put her impending marriage in jeopardy. Furthermore, she testified that she would have signed the agreement regardless of its provisions. The night before she signed the agreement, two of the plaintiffs friends had told her that they did not like the fact that she was signing an agreement that she had not read, but she, nonetheless, simply flipped through the agreement quickly, stared at the pages rather than reading them, and signed the agreement.

Corriss hastily reviewed the agreement with the parties before they signed it and pointed out that it referred to events that would occur in the event of divorce, provided for waivers of rights against one another’s estates, and contained a choice of law provision specifying that the agreement was being made pursuant to New York law and would be interpreted accordingly. Immediately before the agreement was signed, the parties wrote out financial disclosures, which were annexed to the agreement.

At the time the agreement was executed, the plaintiff was a lawful resident and domiciliary of New York and remained so following the marriage. Except for holidays, weekends, and summers in Westport, she resided in New York and educated her daughter from a previous marriage at a school in New York. The plaintiff had a New York driver’s license and voted, filed tax returns and patronized a dentist in New York. She also owned a business in New York until 1990. Additionally, the plaintiff had bank accounts, credit cards and store charge cards, which she maintained at her New York address. Despite requests from the decedent, she did not wish to relocate herself and her daughter from New York to Connecticut.

The decedent considered himself to be a lawful resident and domiciliary of Connecticut, although he spent weekdays with the plaintiff in an apartment in New York and purchased an apartment in New York after their marriage in the name of a trust in order not to jeopardize his Connecticut residency for tax purposes. He also owned a business in New York and managed both his business and his personal affairs using a New York law firm.

All discussions between the decedent and his attorneys, and the limited discussions between the decedent and the plaintiff in connection with the antenuptial agreement, took place in New York. The antenuptial agreement was negotiated, discussed and executed in New York.

The trial referee found that in connection with the agreement, the plaintiff had not been represented by an attorney and that the opportunity provided to her to procure an attorney, one day during a busy time in her life, was not reasonable. The plaintiff saw the agreement for the first time in Corriss’ office and, for all practical purposes, she did not read it. Although she had told Corriss that she had read it, despite having not done so, under the circumstances, Corriss knew that she was not represented by counsel and should have known that she had not carefully studied the agreement. Corriss knew that the manner in which the agreement was signed was not in conformity with the normal practices of his own office and, in fact, he had received a note from a colleague in which the colleague had stated that he was “distressed by the combination of no counsel and no financial disclosure.”

The referee, however, further found that no false representations had been made to the plaintiff with regard to the contents of the agreement and that there was no proof of fraud, duress or undue influence in connection with its execution. While the parties were neglectful in their rush to sign the agreement, the plaintiff had nevertheless wished to sign the agreement and to get on with her wedding and life regardless of what the agreement said. The plaintiff had told her friends that she had decided in advance to sign the agreement because it was what the decedent wanted, and she wanted to sign it to please him. In fact, the plaintiff produced no evidence that she would not have signed the agreement if she had realized that it had included disposition of the parties’ estates upon their deaths.

On the basis of his factual findings, the referee concluded that under §§ 187 and 201 of the Restatement (Second) of Conflict of Laws (1971), the parties’ express choice of New York law was valid and, furthermore, that under New York law, the agreement was enforceable because the plaintiff had not met her burden of proving that the agreement had been the product of fraud. See In the Matter of Sunshine, 51 App. Div. 2d 326, 327-28, 381 N.Y.S.2d 260, aff'd, 40 N.Y.2d 875, 357 N.E.2d 999, 389 N.Y.S.2d 344 (1976) (New York rule places no special burden on party seeking to sustain antenuptial agreement). The referee submitted his report to the trial court and the trial court, having determined that the referee’s findings of fact were supported by the evidence and that the conclusions drawn therefrom were legally and logically correct, accepted the recommendation and rendered judgment in favor of the defendant. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The plaintiff makes the following claims on appeal: (1) the New York choice of law provision contained in the antenuptial agreement should not have been given effect because (a) it had been obtained by improper means and, alternatively, (b) to give effect to the provision would contravene a fundamental policy of the state that has a materially greater interest in the determination of the issue, namely, Connecticut; see 1 Restatement (Second), supra, § 187; (2) in the absence of an express choice of law by the parties, an application of the test set forth in the § 188 of the Restatement, and the principles set forth in O'Connor v. O'Connor, 201 Conn. 632, 638, 519 A.2d 13 (1986), compels the conclusion that, because Connecticut has the most significant relationship to the parties and the antenuptial agreement, the agreement must be interpreted in accordance with Connecticut law, under which it is unenforceable; and (3) even if the New York choice of law provision is valid, the antenuptial agreement is unenforceable under New York law. We are not persuaded that the referee’s finding that the parties’ choice of New York law was valid is not supported by the record. Furthermore, we agree with the referee and the trial court that, under New York law, the agreement is enforceable and that, therefore, pursuant to the agreement, the plaintiff was not entitled to her statutory share of her husband’s estate.

I

Before addressing the validity of the antenuptial agreement, we must first determine under the law of which state the agreement should be assessed. The plaintiff makes two arguments in support of her contention that the New York choice of law provision contained in the agreement was improperly determined to be valid. First, she argues that it is invalid because it was obtained by improper means. See 1 Restatement (Second), supra, § 187, comment (b); see footnote 7. Specifically, the plaintiff argues that she could not have knowingly and voluntarily elected the choice of law provision because she did not, pursuant to the standards governing Connecticut antenuptial agreements, knowingly and voluntarily enter into the agreement. Second, the plaintiff argues that even if she knowingly had agreed to the New York choice of law provision, an application of the parties’ choice of New York law in the present case “would be contrary to a fundamental policy of [Connecticut] which has a materially greater interest than [New York] in the determination of the particular issue”; see 1 Restatement (Second), supra, § 187 (2) (b); and, therefore, may not be given effect. We disagree with both of the plaintiffs contentions.

A

The plaintiffs first argument puts the cart before the horse. If the agreement itself must be valid under Connecticut law in order for the choice of New York law to be valid, any choice of law provision specifying that the agreement must be interpreted according to the law of another forum would be rendered meaningless. In evaluating a choice of law provision, we conclude, in accordance with comment (c) to § 201 of the Restatement, that “[t]he fact that a contract was entered into by reason of misrepresentation, undue influence or mistake does not necessarily mean that a choice-of-law provision contained therein will be denied effect. This will only be done if the misrepresentation, undue influence or mistake was responsible for the complainant’s adherence to the provision (see § 187, Comment [b] and Illustrations 1 and 2). Otherwise, the choice-of-law provision will be given effect provided that it meets the requirements of § 187.” See footnote 7. Our conclusion is consistent with our prior case law in which we have given effect to an express choice of law by the parties to a contract provided that it was made in good faith. International Union v. General Electric Co., 148 Conn. 693, 699, 174 A.2d 298 (1961); Pollack v. Danbury Mfg. Co., 103 Conn. 553, 557, 131 A. 426 (1925); see also Economu v. Borg-Warner Corp., 652 F. Sup. 1242, 1248 (D. Conn. 1987).

In the present case, the referee found that there was no evidence of misrepresentation, fraud or undue influence underlying the parties’ choice of New York law. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. See Practice Book § 443; Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 299, 552 A.2d 827 (1989). This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” (Citations omitted; internal quotation marks omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423-24, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. . . . Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Farrell v. Farrell, 36 Conn. App. 305, 309, 650 A.2d 608 (1994).

Our review of the record convinces us that the referee was not clearly erroneous in his finding that the choice of law provision had not been obtained by improper means. See Campisano v. Nardi, 212 Conn. 282, 285, 562 A.2d 1 (1989). The antenuptial agreement contains an explicit “Governing Law” provision that states that “[a] 11 matters affecting the interpretation of this Agreement and the rights of the parties shall be governed by the law of the State of New York.” Both parties were experienced business people. The referee found that Corriss had reviewed the agreement with the plaintiff briefly before she signed it and had explained that the agreement was created pursuant to New York law and would be interpreted accordingly. Finally, the referee found that the plaintiff had been prepared to sign the agreement regardless of what it said. Such findings adequately support the referee’s conclusion that the choice of law provision had not been obtained by fraud or undue influence.

B

The plaintiffs second argument in connection with the choice of law provision is based on § 187 of the Restatement. The plaintiff contends that an application of New York law in the present case would be contrary to a fundamental policy of Connecticut concerning the validity of antenuptial agreements and, therefore, may not be given effect. We are not persuaded.

We conclude, in accordance with § 187 of the Restatement, that parties to a contract generally are allowed to select the law that will govern their contract, unless either: “(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.” Applying this test to the facts of the present case, we conclude that the parties’ choice of New York law was valid and, therefore, was properly given effect.

The first requirement that must be met in order to satisfy § 187 of the Restatement is that the state whose law is selected must have a substantial relationship to the parties or the transaction, or that there be some reasonable basis for the parties’ choice. On the basis of the referee’s factual findings, the trial court concluded that New York has a substantial relationship to the parties. We agree with the trial court. The plaintiff was at all times a New York resident and conducted many of her affairs in New York. The decedent spent weekdays in New York and maintained a business in New York. Furthermore, the agreement was executed at the decedent’s attorney’s office, which is located in New York.

The second requirement is that the application of the law of the chosen state must not violate a fundamental policy of the state that (1) has a greater material interest in the determination of the issue, and (2) is the state whose law would be applied in the absence of a choice by the parties. Thus, we need consider the relative policy interests only if Connecticut has a materially greater interest than New York in deciding the validity of the antenuptial agreement.

In light of the referee’s findings, the trial court determined that Connecticut did not have a materially greater interest than New York, so as to trigger an inquiry into the relative policy interests. We agree. Although there were significant contacts with Connecticut, including the facts that the marriage took place in Connecticut, that the decedent was a Connecticut resident, and that his estate is in probate in Connecticut, these contacts are not “materially greater” than the contacts with New York. In view of the numerous contacts, as set forth earlier in this opinion, between the parties, the agreement and the state of New York, we conclude that Connecticut does not have a materially greater interest in the enforceability of the agreement than New York. Accordingly, we conclude that the trial court properly upheld the parties’ choice of New York law.

II

Having determined that the agreement must be interpreted in accordance with the law of New York, we now turn to the plaintiffs claim that even if we were to assume that New York law applies, the trial court improperly concluded that the agreement was valid. Specifically, the plaintiff contends that New York recognizes that the parties to an antenuptial agreement stand in a confidential relationship to each other and that, therefore, once some evidence indicating unfairness has been introduced, the burden of proving the validity of the agreement shifts to the party seeking its enforcement, who must show that it was entered into knowingly and in good faith. We disagree.

The law in New York with regard to the enforcement of antenuptial agreements is clear. “Under prevailing law and public policy, a duly executed antenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise. It is presumed to be valid in the absence of fraud .... A party seeking to attack the validity of the agreement has the burden of coming forward with the evidence showing fraud .... Where an antenuptial agreement becomes the subject of litigation the courts will exercise rigid scrutiny in exploring the circumstances within which such agreement was made . . . [b]ut, in the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed. . . . Such a presumption must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some other form of deception.” (Citations omitted; internal quotation marks omitted.) In the Matter of Sunshine, supra, 51 App. Div. 2d 327-28.

The referee found that there was nothing in the record “to supply any evidence of coercion or undue influence by either [the decedent] or his attorney,” and that the plaintiff had not established fraud or overreaching. These findings are supported by the record and are not, therefore, clearly erroneous. The parties were both experienced business people; Corriss informed the plaintiff of the scope of the agreement; the agreement incorporated full financial disclosure by the parties; and the plaintiff had decided prior to the meeting that she would sign the agreement regardless of what it said. Thus, because there was no evidence of fraud or overreaching, we agree with the trial court that the agreement is enforceable as a valid contract under New York law.

The plaintiff relies on two cases, both of which were decided in New York prior to 1900; Graham v. Graham, 143 N.Y. 573, 38 N.E. 722 (1894); Pierce v. Pierce, 71 N.Y. 154 (1877); in support of her argument that a confidential relationship exists between the parties to an antenuptial agreement, which shifts the burden of proving its validity to the party seeking its enforcement. As the referee concluded, however, these cases are no longer the current law of the state of New York.

The Appellate Division of the Supreme Court of New York addressed an argument similar to that raised by the plaintiff in the present case with regard to the burden of proving the validity of an antenuptial agreement. See In the Matter of Liberman, 4 App. Div. 2d 512, 516-17, 167 N.Y.S.2d 158 (1957), aff'd, 5 N.Y.2d 719, 152 N.E.2d 665, 177 N.Y.S.2d 707 (1958). In that case, the court stated: “In the absence of proof by petitioner that she was induced to execute the waiver because of fraud or overreaching on the part of the decedent, the waiver must be held valid (Matter of Phillips, 293 N.Y. 483 [58 N.E.2d 504 (1944)]) .... Petitioner relies on Pierce v. Pierce, [supra, 71 N.Y. 154] but in that case there was conclusive proof of fraud and deception on the part of the decedent which had induced the wife to enter into the prenuptial agreement. It should be noted that at the time the Pierce case was decided (1877), antenuptial agreements were presumed to be invalid unless proven otherwise. Now, however, in view of the expression of public policy by the Legislature in amending section 18 of the Decedent Estate Law . . . that presumption no longer exists and a prenuptial agreement is presumed to be valid in the absence of proof of fraud, concealment or imposition . . . .” (Citations omitted; internal quotation marks omitted.) In the Matter of Liberman, supra, 516-17. It is clear that the present state of the law in New York is reflected in In the Matter of Sunshine, and that, therefore, the trial court’s determination that the antenuptial agreement was valid was proper.

The judgment is affirmed.

In this opinion the other justices concurred.

       The antenuptial agreement was executed in the presence of a witness and acknowledged before a notary public. It provides that each party can own, hold and freely dispose of all real and personal property owned at the time of the agreement or acquired thereafter by gift, free from all rights of the other; that each party can dispose of all real and personal property upon death by will, testamentary substitute, or any other arrangement as if the parties had never been married; that each party waived, released and renounced all interest in the other party’s estate; and that neither party would contest the will of the other. Further, the agreement provides that the plaintiff waived the right to legal counsel and acknowledged that, in light of the voluntary and knowledgeable nature of the waiver, she would not claim that the agreement was void and unenforceable. Finally, the agreement provides that both parties acknowledge that the agreement was fair, equitable, and entered into voluntarily, not as a result of duress or undue influence.

       The Probate Court determined that the agreement was valid and enforceable and that, therefore, in accordance with General Statutes § 45a-436 (f), which provides that the statutory share of a spouse’s estate may be waived by a written agreement, the plaintiff had no right to share in the decedent’s estate.

       See General Statutes § 45a-437, which provides in relevant part: “Intestate succession. Distribution to spouse, (a) If there is no will, or if any part of the property, real or personal, legally or equitably owned by the decedent at the time of his or her death, is not effectively disposed of by the will or codicil of the decedent, the portion of the intestate estate of the decedent . . . which the surviving spouse shall take is . . .
      “(4) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the intestate estate absolutely.”

       General Statutes § 45a-186 provides in relevant part: “Appeals from probate. Any person aggrieved by any order, denial or decree of a court of probate in any matter . . . may appeal therefrom to the superior court for the judicial district in which such court of probate is held . . .

       See General Statutes § 52-434.

       Simultaneously with the signing of the agreement, the plaintiff was presented with a letter that stated that on several occasions she had been told that she should retain independent counsel but had freely elected not to do so. The referee found that the contents of this letter were untrue and rejected the letter as an effective waiver of anything. The referee further concluded, however, that the letter did not rise to the level of fraud because it had induced nothing and had been neither believed nor relied upon by the parties.

       Section 187 of the Restatement (Second) of Conflict of Laws (1971), provides in relevant part: “Law of the State Chosen by the Parties . . .
      “(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
      “(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
      “(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.”
      Comment (b) to § 187 of the Restatement (Second) provides: “Impropriety or mistake. A choice-of-law provision, like any other contractual provision, will not be given effect if the consent of one of the parties to its inclusion in the contract was obtained by improper means, such as by misrepresentation, duress, or undue influence, or by mistake.”
      Section 201 of the Restatement (Second) of Conflict of Laws (1971), provides: “Misrepresentation, Duress, Undue Influence and Mistake
      “The effect of misrepresentation, duress, undue influence and mistake upon a contract is determined by the law selected by application of the rules of §§ 187-188.”

       Section 188 of 1 Restatement (Second) of Conflict of Laws (1971), provides in relevant part: “Law Governing in Absence of Effective Choice by the Parties ....
      “(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
      “(a) the place of contracting,
      “(b) the place of negotiation of the contract,
      “(c) the place of performance,
      “(d) the location of the subject matter of the contract, and
      “(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.
      “These contacts are to be evaluated according to their relative importance with respect to the particular issue.”

       Because we conclude that the New York choice of law provision was valid, we need not reach the plaintiffs claims in connection with the validity of the antenuptial agreement under Connecticut law.

       Many other jurisdictions have adopted § 187 of the Restatement. See, e.g., Moore v. Subaru of America, 891 F.2d 1445, 1449 (10th Cir. 1989); Uniwest Mortgage Co. v. Dadecor Condominiums, Inc., 877 F.2d 431, 435-36 (5th Cir. 1989); Tele-Save Merchandising Co. v. Consumers Distributing Co., Ltd., 814 F.2d 1120, 1122-25 (6th Cir. 1987); Woodling v. Garrett Corp., 813 F.2d 543, 551 (2d Cir. 1987); Shipley Co. v. Clark, 728 F. Sup. 818, 825 (D. Mass. 1990); Economu v. Borg-Warner Corp., supra, 652 F. Sup. 1248; Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 507 (Ala. 1991); In re Estate of Levine, 145 Ariz. 185, 189, 700 P.2d 883 (App. 1985); Sekeres v. Arbaugh, 31 Ohio St. 3d 24, 25, 508 N.E.2d 941 (1987).
      Such a rule is supported by the rationale set forth in comment (e) to § 187 of the Restatement, which provides: “Prime objectives of contract law are to protect the justified expectations of the parties and to make it possible for them to foretell with accuracy what will be their rights and liabilities under the contract. These objectives may best be attained in multistate transactions by letting the parties choose the law to govern the validity of the contract and the rights created thereby. In this way, certainty and predictability of result are most likely to be secured. Giving parties this power of choice is also consistent with the fact that, in contrast to other areas of the law, persons are free within broad limits to determine the nature of their contractual obligations.”


text:
    BLUE CROSS/BLUE SHIELD OF CONNECTICUT, INC. v. WALTER S. GURSKI, JR.

      Richard A. Smith, in support of the petition.

      Julie A. Manning, in opposition.
    Decided July 8, 1996
   The defendant’s petition for certification for appeal from the Appellate Court (AC 15814) is denied.


text:
    STATE OF CONNECTICUT v. ROBERT M. BROWN
    The Supreme Court docket number is SC 15481.

      Rita M. Shair, assistant state’s attorney, in support of the petition.

      G. Douglas Nash, public defender, in opposition.
    Decided July 8, 1996
   The petition by the state of Connecticut for certification for appeal from the Appellate Court, 41 Conn. App. 317 (AC 14983), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that (1) the trial court abused its discretion in denying the defendant’s motion for a continuance for DNA testing, and (2) the error was so prejudicial that it denied the defendant a fair trial?”


text:
    DEBBIE HUNTER, ADMINISTRATRIX (ESTATE OF ALFORDE HUNTER) v. HEALEY CAR AND TRUCK LEASING, INC., ET AL.

       On December 18, 1996, the appeal was dismissed by the Supreme Court, sua sponte, on the ground that certification was improvidently granted.

   The petition by the defendant city of New Haven for certification for appeal from the Appellate Court, 41 Conn. App. 347 (AC 14703), is granted, limited to the following issue:

The Supreme Court docket number is SC 15483.

Patricia A. Cofrancesco, deputy corporation counsel, in support of the petition.

Karen E. Souza, in opposition.

Decided July 8, 1996

“Did the Appellate Court improperly find that under a plain error standard of review the trial court wrongfully granted a directed verdict in favor of the defendants?”


text:
    STATE OF CONNECTICUT v. TERRELL LEDBETTER
    The Supreme Court docket number is SC 15480.

      James M. Ralls, assistant state’s attorney, in support of the petition.

      Dina S. Wenger and Linda S. Morkan, special public defenders, in opposition.
    Decided July 8, 1996
   The petition by the state of Connecticut for certification for appeal from the Appellate Court, 41 Conn. App. 391 (AC 13306/13407), is granted, limited to the following issue:

“Does the persistent felony offender statute, General Statutes § 53a-40 (d), apply when a defendant pleads guilty to two separate charges in the same proceeding?”


text:
    STATE OF CONNECTICUT v. TERRELL LEDBETTER
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 391 (AC 13306/ 13407), is denied.

Dina S. Wenger and Linda S. Morkan, special public defenders, in support of the petition.

James M. Ralls, assistant state’s attorney, in opposition.

Decided July 8, 1996


text:
    PHILIP IRELAND v. TOWN OF WETHERSFIELD
    The Supreme Court docket number is SC 15482.

      Kerry R. Callahan and Karen Keej'e Clark, in support of the petition..
    Decided July 8, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 421 (AC 14401), is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court properly conclude that a new trial was required because of the absence of evidence of whether the assessment by the town would result in an unjust tax?”


text:
    STATE OF CONNECTICUT v. EDWARD KRUELSKI, JR.

      PaulD. Eschuk, assistant public defender, in support of the petition.

      Robert L. Marconi, assistant attorney general, in opposition.
    Decided July 8, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 476 (AC 14813), is denied.


text:
    SHARON E. WEBSTER v. DANIEL G. WEBSTER

      Jeffrey Brownstein, in support of the petition.
    Decided July 8, 1996
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 905 (AC 14361), is denied.


text:
    COUNTRYWIDE FUNDING CORPORATION v. ISAAC L. SMITH ET AL.

      Donna L. Wright, pro se, in support of the petition.
    Decided July 8, 1996
   The petition by the defendant Donna L. Wright for certification for appeal from the Appellate Court, 41 Conn. App. 905 (AC 15325), is denied.


text:
    MIRCELA NITA v. RICHARD BLUMENTHAL

      Mircela Nita, pro se, in support of the petition.

      Marjorie Allen Dauster, assistant state’s attorney, in opposition.
    Decided July 8, 1996
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 906 (AC 14045), is denied.


author: BERDON, J.,

text:
    TRAVIS WALLACE v. COMMISSIONER OF MOTOR VEHICLES
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 910 (AC 14875), is denied.

Jeffrey Brownstein, in support of the petition.

Robert T. Morrin, assistant attorney general, in opposition.

Decided July 8, 1996

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification for review.


text:
    WILLLIAM A. ALLEN v. COMMISSIONER OF CORRECTION

      David, B. Rozwaski, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided July 8, 1996
   The petition by the petitioner William A. Allen for certification for appeal from the Appellate Court, 41 Conn. App. 911 (AC 14684), is denied.


text:
    GEORGE ALTIERI, JR., ET AL. v. WESTINGHOUSE ELEVATOR COMPANY

      Michael A. Stratton, in support of the petition.

      Karen Keefe Clark, in opposition.
    Decided July 8, 1996
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 912 (AC 14668), is denied.


text:
    CARL LIANO v. CITY OF BRIDGEPORT

      George C. Springer, Jr., in support of the petition.
    Decided July 18, 1996
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 15082) is denied.


text:
    STATE OF CONNECTICUT v. MICHAEL SEBASTIAN

      Walter H. Scanlon, in support of the petition.

      Timothy J. Sugrue, executive assistant state’s attorney, in opposition.
    Decided July 18, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 41 Conn. App. 530 (AC 14984), is denied.


text:
    KENNA D. BROWN v. WILLIAM B. BROWN

      Kenna I. Daly, pro se, in support of the petition.

      Charles D. Ray and William H. Narwold, in opposition.
    Decided July 18, 1996
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 913 (AC 14653), is denied.


text:
    DONALD GAYLE v. BASIL YOUNG ET AL.
   The defendants’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 913 (AC 14582), is denied.

Basil Young, pro se, and Yvette Young, pro se, in support of the petition.

Eroll V. Skyers, in opposition.

Decided July 18, 1996


text:
    CONNECTICUT CAR RENTAL, INC. v. EMBASSY LIMOUSINES, INC., ET AL.

      Philip M. Block, in support of the petition.
    Decided July 18, 1996
   The plaintiffs petition for certification for appeal from the Appellate Court, 41 Conn. App. 914 (AC 14277), is denied.


text:
    STATE OF CONNECTICUT v. RAYMOND PHIDD

      Mary Miller Haselkamp, assistant public defender, in support of the petition.

      James Ralls, assistant state’s attorney, in opposition.
    Decided July 18, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 42 Conn. App. 17 (AC 13999), is denied.


text:
    SHARPER IMAGE CORPORATION v. DONALD F. MILLER, COMMISSIONER OF REVENUE SERVICES
   The appellate panel’s request for certification for appeal from the Appellate Court, 42 Conn. App. 310 (AC 14499), is granted, limited to the following issue:

The Supreme Court docket number is SC 15486.

Michael J. Mannion and Martin I. Eisenstein, in support of the petition.

Richard K. Greenberg, assistant attorney general, in opposition.

Decided July 18, 1996

“Under the circumstances of this case, was the taxpayer liable for payment of a Connecticut use tax on its catalogs that were mailed to Connecticut residents?”


text:
    FLOYD WILLIAMS v. COMMISSIONER OF CORRECTION
    The Supreme Court docket number is SC 15493.

      James A. Shanley, Jr., special public defender, in support of the petition.
    Decided July 23, 1996
   The petitioner Floyd Williams’ petition for certification for appeal from the Appellate Court, 41 Conn. App. 515 (AC 14076), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that a habeas corpus petitioner alleging his actual innocence must show that his claim of innocence is sustained by newly discovered evidence?”