text:
    Federal Deposit Insurance Corporation v. Hillcrest Associates et al.
    (15084)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.

      Argued March 14
    decision released May 16, 1995

      Robert E. Pace, with whom was Cynthia A. Jawor-ski, for the appellant (substitute plaintiff Federal Deposit Insurance Corporation).

      Michael J. Mannion, for the appellees (defendants).
   Borden, J.

The dispositive question in this case is whether the thirty day time limitation contained in General Statutes § 49-14 (a) is subject matter jurisdictional. This and another question come to us upon certification by the United States Court of Appeals for the Second Circuit (Court of Appeals) pursuant to General Statutes § 51-199a and Practice Book § 4168. Federal Deposit Ins. Corp. v. Hillcrest Associ ates, United States Court of Appeals, Second Circuit, Docket No. 93-6372 (August 29, 1994). We conclude that the thirty day time limitation contained in § 49-14 (a) is not subject matter jurisdictional.

The record certified by the Court of Appeals provides the following facts and procedural history. The named defendant, Hillcrest Associates (Hillcrest), is a Connecticut general partnership involved in real estate ventures. The individual defendants were general partners of Hillcrest, and the other defendant is People’s Bank (People’s), a lienholder on the property involved in this case. On October 1, 1987, Hillcrest, in order to secure a promissory note in the principal amount of $1,600,000, granted a mortgage on property located in New Britain to CityTrust, a Connecticut bank. The individual defendants personally guaranteed the note. In January, 1991, CityTrust brought this action in the Superior Court against the defendants, seeking a strict foreclosure and a deficiency judgment. In addition, CityTrust brought a separate action against the individual defendants in their capacity as guarantors of the note, in connection with which CityTrust secured prejudgment remedies against the individual defendants.

Subsequently, CityTrust became insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed as the receiver of CityTrust under the Federal Deposit Insurance Act and state law. In September, 1991, pursuant to federal law, the FDIC removed the foreclosure action and the action on the note to the United States District Court for the District of Connecticut. At that time, the FDIC was substituted for CityTrust as the plaintiff and the actions were consolidated. Magistrate Judge F. Owen Eagan granted the motion of the FDIC for default against the defendants for failure to plead, and District Judge Ellen B. Burns endorsed Magistrate Judge Eagan’s order.

Thereafter, the FDIC moved for a judgment of strict foreclosure, and Magistrate Judge Eagan held a hearing on the motion on August 26, 1992. At that hearing, the defendants consented to a judgment of strict foreclosure, but asked to reserve the issues of the amount of the debt, the attorney’s fees and the value of the property for a hearing on a motion for a deficiency judgment. The defendants also requested an early law day in order to stop the accrual of interest on the debt. The FDIC agreed to an early law day, but requested more time before title vested in it because it wanted to complete an environmental assessment of the property before making the final decision regarding whether to complete the foreclosure by taking title to the property.

Magistrate Judge Eagan set law days of September 28,1992, for the defendants, and September 29,1992, for People’s. Pursuant to the agreement of the parties, the magistrate judge further ordered that, for purposes of a deficiency judgment, the value of the property would be set as of September 30,1992. He also ordered, however, that title would vest in the FDIC on November 1,1992, and that any motion for a deficiency judgment would have to be filed within thirty days of November 1, 1992.

From the viewpoint of the FDIC, the period between September 29, 1992, the last law day, and November 1,1992, the date Magistrate Judge Eagan ordered the vesting of title, was to afford the FDIC an opportunity to complete an environmental assessment of the property. The FDIC stated to Magistrate Judge Eagan that if the FDIC decided that “the property is so polluted that we’re not going to take it back,” it would request permission of the court to open the judgment of strict foreclosure, presumably withdraw the foreclosure action and pursue the individual defendants solely on the note. The magistrate judge indicated, and the FDIC agreed, that any request by the FDIC to open the judgment of strict foreclosure between the last law day and November 1,1992, would be subject to the discretion of the court and that “I don’t want you to think you've got a guarantee from the court” that such a motion would be granted. The defendants, however, questioned whether “once title is vested . . . the court can unvest” it, and stated that “[under] state procedure title vests . . . after the law date is gone. Whether that can be changed by order, I don’t know.”

Upon the request of the magistrate judge, the FDIC drafted a judgment incorporating his rulings. The defendants’ counsel reviewed a draft of the order and, in addition to other suggestions, commented that the reference in the draft to the filing of a motion for a deficiency judgment might not belong in a judgment of strict foreclosure. Thereafter, the magistrate judge approved, retroactive to August 26,1992, a final draft of the judgment that incorporated some of the defendants’ other suggestions. The judgment specified the dates for the law days, for the setting of the value of the property, for the vesting of title in the FDIC and for the filing of a motion for a deficiency judgment as specified above. The parties had no objections, and on October 5, 1992, the District Court endorsed the judgment.

More specifically, the judgment ordered a strict foreclosure of the mortgage in favor of the FDIC. The judgment also recited the amount of the debt, real estate taxes, and attorney’s fees, but “for the purpose of entering this judgment of strict foreclosure and the establishment of law days only. The defendants have reserved the right to question the calculation of the debt, the rate or rates of interest applied and the propriety of the item included in the debt, including attorney’s fees. In addition, the defendants have reserved the right to require the [FDIC] to account for the collection of rents by the court-appointed receiver of rents and, if such rents are disbursed to the [FDIC] by this District Court, to claim a credit against the debt for all or a portion of the rents collected. These issues may be raised by the defendants at the hearing on any . . . motion for a deficiency judgment which the [FDIC] may file.” In addition, the judgment recited a finding of the value of the property of $1,050,000 “for the purposes of entering this judgment of strict foreclosure and the establishment of law days only. The defendants have reserved the right to introduce evidence at the hearing on any motion for a deficiency judgment which the [FDIC] may file.” Finally, the judgment stated: “Provided, however, that: (i) the day on which the value of the Premises is determined for purposes of any deficiency judgment in this case shall be deemed to be September 30, 1992; and (ii) a motion for deficiency judgment must be filed by the [FDIC] within thirty (30) days of November 1, 1992.”

On November 4, 1992, the FDIC recorded a certificate of foreclosure on the land records, and on November 5, 1992, moved for a deficiency judgment. The defendants moved to dismiss the motion for deficiency judgment under rule 12 (b) (6) of the Federal Rules of Civil Procedure. The defendants argued that the court had no subject matter jurisdiction to render a deficiency judgment because the FDIC had filed its motion more than thirty days after the expiration of the “time limited for redemption,” as required by § 49-14 (a), namely, September 30,1992, which was, in the defendants’ view, the date on which title to the mortgaged property had become absolute in the FDIC.

Magistrate Judge Eagan made a recommended ruling to the District Court that: (1) the defendants’ failure to object to the judgment of strict foreclosure of August 26, 1992, estopped them from arguing a lack of subject matter jurisdiction; (2) under equitable principles, the court had the power to extend the deadline for filing a motion for a deficiency judgment; and (3) the defendants had waived their right to object to such an extension. The defendants objected to the recommended ruling.

The District Court held that under Connecticut law: (1) the motion for a deficiency judgment was untimely under § 49-14 (a) because the thirty day time limit began to run on September 29,1992; and (2) the time limit was subject matter jurisdictional and, therefore, could not be waived. Accordingly, the court denied the FDIC’s motion for a deficiency judgment, and granted the defendants’ objection to the recommended ruling and motion to dismiss. The FDIC appealed to the Court of Appeals, which certified the two questions of law to this court. See footnote 2.

The FDIC claims that the District Court improperly dismissed the motion for a deficiency judgment because: (1) the magistrate judge had the equitable power and discretion to establish November 1, 1992, as the date of vesting of title in the FDIC, and that, under Connecticut law, the owner’s equity of redemption expires on the date set for vesting of title in the mortgagee, which is not necessarily the date of expiration of the law days; and (2) in the alternative, the thirty day time limitation contained in § 49-14 (a) is not subject matter jurisdictional and, therefore, the defendants were properly held to have waived that time limit. The defendants respond that the District Court was correct because: (1) as a matter of Connecticut mortgage law, the thirty day time limitation began to run upon the passing of the final law day, and not on November 1, 1992; and (2) the thirty day time limitation in § 49-14 (a) is a limitation on the right created by the statute, and therefore a failure to file a motion for a deficiency judgment within that time period deprives the court of subject matter jurisdiction to grant such a motion.

We conclude that it is not necessary to decide the first certified question because, even if we were to assume that the thirty day time limitation in § 49-14 (a) expired before the filing of the motion for a deficiency judgment, the time limitation is not subject matter jurisdictional. Therefore, even if we were to assume that the motion was untimely, the court retained subject matter jurisdiction to rule on it and, under the facts as certified to us, the defendants waived any objection to it on the basis of untimeliness.

The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). Thus, “we look to whether the legislature intended the time limitation to be jurisdictional. The legislative intent is to be discerned by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was designed to implement, and the statute’s relationship to the existing legislation and common law principles governing the same subject matter. [Id.] In light of the strong presumption in favor of jurisdiction, we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar. Id., 765.” (Internal quotation marks omitted.) Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993).

We conclude that no such showing has been made in this case. The legislature did not intend that the thirty day time limitation for filing a motion for deficiency judgment, contained in § 49-14 (a), could not be waived by the parties in a particular case. This conclusion is supported by the language of the statute, read in the light of its history and its jurisprudential background.

We begin with the language of § 49-14 (a): “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. . . .” (Emphasis added.) The language is less emphatic than other statutory time limitations that we have held to be subject matter jurisdictional. See, e.g., Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 227 Conn. 849 n.2 (“General Statutes § 4-183 (c) provides: ‘Within forty-five days after mailing of the final decision [of an administrative agency] under section 4-180 . . . a person appealing under this section shall . . . file the appeal with the clerk of the superior court . . . .’ ” [Emphasis added.]); Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 759 n.l (“General Statutes § 52-2781 provides ... (b) No such appeal [from certain prejudgment remedy orders] shall be taken except within seven days of the rendering of the order from which the appeal is taken. . . ” [Emphasis added]). Nonetheless, although the language of § 49-14 (a) is less emphatic than other statutory language that we have determined to be jurisdictional, and although that lack of linguistic emphasis is suggestive of a nonjurisdictional purpose, the statutory language is not, by itself, determinative of such a purpose.

The legislative genealogy of § 49-14 (a), however, strongly supports our conclusion that its time limitation is not subject matter jurisdictional. Prior to 1833, our law did not provide for obtaining a deficiency judgment or its functional equivalent, because a judgment of strict foreclosure barred further action on the note. Equitable Life Assurance Society of the United States v. Slade, 122 Conn. 451, 454, 190 A. 616 (1937). Thus, if the mortgagee extinguished the mortgagor’s equity of redemption through a strict foreclosure and took possession of the property, the mortgagee was limited to the value of the property and any further remedy on the note was extinguished. Id.; Derby Bank v. Landon, 3 Conn. 62, 63 (1819).

In 1833, the legislature removed strict foreclosure as a bar to further action on the note, but provided that the court in the foreclosure action would ascertain the value of the property “at the expiration of the time limited for redemption,” and that in the subsequent action on the note the mortgagee “shall recover only so much as his said claim or demand exceeds in amount the said value of said mortgaged property.” Public Acts 1833, c. XVIII, as codified at General Statutes (1835 Rev.) tit. 30, c. 4; Equitable Life Assurance Society of the United States v. Slade, supra, 122 Conn. 454. In 1878, the legislature further amended the statute to shift the function of valuing the property from the court to three appraisers, and provided that the appraisers’ value “shall be final and conclusive . . . .’’Public Acts 1878, c. 129, § 2; Equitable Life Assurance Society of the United States v. Slade, supra, 455.

General Statutes (1902 Rev.) § 4124 eliminated the requirement of bringing a second action in order to obtain a deficiency judgment, but retained the finality of the appraisers’ valuation of the property. Equitable Life Assurance Society of the United States v. Slade, supra, 122 Conn. 455. Section 4124 also provided, however, that the court could enter a deficiency judgment “at any time within ninety days after the time limited for redemption has expired. . . .” See General Statutes (1930 Rev.) § 5083; Equitable Life Assurance Society of the United States v. Slade, supra, 462.

In Equitable Life Assurance Society of the United States, the date for redemption had been October 8, 1935. The appraisers’ report had been filed on October 16, 1935, but because the mortgagor objected to the report, the hearing on that objection was not concluded until February 14,1936. Nonetheless, on March 24,1936, more than ninety days after the date limited for redemption, the trial court rendered a supplemental judgment denying the mortgagee’s request for a deficiency judgment because of the expiration of the ninety day time period. On appeal, this court reversed and remanded the case with direction to render a deficiency judgment for the mortgagee. Id., 465. We held that the ninety day time limitation for rendering a deficiency judgment was not subject matter jurisdictional. The court’s “power to enter a deficiency judgment after the expiration of ninety days does not involve a question of jurisdiction, since a judgment entered after the expiration of the time limited by the statute though erroneous, is not void.” Id., 462. This court declined, on appellate procedural grounds, to entertain the mortgagor’s further, nonjurisdictional claim that the trial court had nevertheless properly declined to render the deficiency judgment. Id., 465.

The next year, however, this court revisited the statute under a similar set of facts but in a different procedural posture. In Dime Savings Bank v. Pomeranz, 123 Conn. 581, 196 A. 634 (1938), the date set for redemption was February 3,1936, and on February 5, 1936, the mortgagee moved for a deficiency judgment. Because of hearings on the mortgagor’s objections to the appraisers’ report, however, it was not until May 12, 1936, ninety-eight days after the date limited for redemption, that the trial court rendered a supplemental judgment for a deficiency judgment. The mortgagor appealed. Id., 581-82. This court reaffirmed the principle that “a deficiency judgment rendered after the expiration of the ninety days allowed by the statute is not void for want of jurisdiction of the court to render it.” Id., 583. We also stated, however, “that unless the party against whom [the deficiency judgment] is rendered consents to its being entered or waives the objection it is erroneous.” Id. Specifically analogizing the issue to the situation in which the trial court, after hearing a case, renders a judgment in a case beyond the time period limited by statute to do so, we held: “The Legislature having made a specific requirement as to the time within which a deficiency judgment under the procedure we have outlined shall be entered, in the absence of a waiver by the defendant of the right to object to the rendition of a judgment thereafter, we are not at liberty to set aside that requirement.” Id.

Applying these principles to the facts of that case, we held that, although the trial court had had subject matter jurisdiction to render a deficiency judgment after the statutory ninety day period; id.; we could not “hold as a matter of law that the defendant had waived his right to object to the late entry of judgment.” Id., 584. We pointed out that “[h]ad the plaintiff called the [ninety day] requirement of the statute to the attention of the trial court within that time, no doubt a decision would have been rendered, particularly as it was entered only eight days after the expiration of the period. Id. Accordingly, we reversed the judgment and remanded the case with direction to vacate the deficiency judgment. Id., 585. Thus, under Dime Savings Bank, the mortgagor could, by engendering hearings on the acceptance of the appraisers’ report, delay the rendering of a deficiency judgment, and cast the burden on the mortgagee to ensure that, despite those proceedings, the court met the ninety day limitation.

The next year, in response to our decision in Dime Savings Bank, the legislature amended the statute to shift the time limitation from the court to the mortgagee. Public Acts 1939, c. 97. Under General Statutes (1939 Sup.) § 1313e, the court was permitted to render a deficiency judgment “provided application for such deficiency judgment shall have been made by the plaintiff within ninety days after the time limited for redemption has expired.”

The statute remained essentially unchanged for the next forty years. In 1979, this court held that General Statutes (Rev. to 1977) § 49-14 was unconstitutional because it failed to “comply with the procedural due process of law requirements of the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution.” Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 564-65, 409 A.2d 1020 (1979). The constitutional defect had nothing to do, however, with the time limitation at issue in this case. The constitutional defect was that, by lodging the valuation process for purposes of a deficiency judgment solely with the court-appointed appraisers, the statute deprived the defendant of proper notice and of a meaningful opportunity to be heard on the vital issue of the value of the property. Id., 572-77.

Society for Savings was decided on February 6,1979. In fewer than six weeks, the legislature had before it proposed legislation to cure the defects identified by the court in that case. On March 15, 1979, the Joint Standing Committee on the Judiciary considered Raised Committee Bills Nos. 7644 and 499, and a revised version to be substituted for both of those bills. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2,1979 Sess., pp. 539-52. The testimony before the committee was to the general effect that the purpose and effect of the bill were to provide a hearing for the establishment by the trial court of the value of mortgaged property, for purposes of a deficiency judgment proceeding, in order to bring the deficiency judgment statute into conformity with the constitution. Id. The testimony also indicated that the bill had the support of the Connecticut Bar Association, the Connecticut Bankers Association and the Mutual Savings Banks of Connecticut. Id., p. 542. The only mention in the bill, and the testimony, regarding the time limitation was to reduce the time for filing a motion for a deficiency judgment from ninety to thirty days after the date limited for redemption. Id.

On April 4, 1979, Substitute House Bill No. 7644, entitled “An Act Concerning Valuation of Mortgaged Property After Foreclosure,” passed the House of Representatives after the following brief explanation: “What this bill does is set forth a procedure for determining deficiency judgments. In February of 1979, the Supreme Court declared the current procedure under our Foreclosure Statutes unconstitutional. This present piece of legislation would ensure a hearing before any deficiency is entered.” 22 H.R. Proc., Pt. 7,1979 Sess., p. 2294, remarks of Representative Alfred J. Onorato. Similarly, on April 24, 1979, the bill passed the Senate, after the following explanation: “This bill basically provides that there will be a hearing in regards to a deficiency judgment so that we can meet the conformity of the recent case involving this particular statute in which a part of the statute was ruled unconstitutional on the basis that there wasn’t a proper hearing for anyone who is suffering a deficiency.” 22 S. Proc., Pt. 5, 1979 Sess., p. 1557, remarks of Senator Salvatore C. DePiano. Substitute House Bill No. 7644 became No. 79-110 of the 1979 Public Acts. It is now codified at General Statutes § 49-14 (a), which contains the time limitation on the filing of a motion for a deficiency judgment that is at issue in this case.

We conclude from this legislative history that the thirty day time limitation in § 49-14 (a) was not intended by the legislature to be subject matter jurisdictional. The original ninety day statutory time limitation on the rendering of a deficiency judgment, enacted in 1902, was not subject matter jurisdictional. That principle was affirmed by case law in 1937 and reaffirmed in 1938. Although in 1939, in response to the decision in Dime Savings Bank, the time limitation was shifted from the court’s rendering of the deficiency judgment to the plaintiff’s filing of the motion seeking such a judgment, there is no reason to believe that this shift in locus of the time limitation was intended to contravene case law interpreting a statutory time limitation that had been in existence for thirty-seven years. Similarly, when, forty years later, in 1979, the legislature responded to Society for Savings, there was no indication that, in shortening the time limitation from ninety to thirty days, the legislature intended also to render subject matter jurisdictional a time limitation that had not been considered to be such for seventy-seven years. See, e.g., Union Trust v. Heggelund, 219 Conn. 620, 624-25, 594 A.2d 464 (1991) (when legislature amended prejudgment remedy statute to meet due process standards, no evidence of intent to change longstanding rule concerning priority of claims).

In light of the strong presumption in favor of jurisdiction, we require a strong showing of legislative intent that a time limitation acts as a subject matter jurisdictional bar. Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 227 Conn. 854. Such a strong showing is lacking here.

Our conclusion is further buttressed by the well settled doctrine that “ [foreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done.” Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). We read statutes so that, together with the common law, they form a rational and coherent whole. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 586, 657 A.2d 212 (1995); Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993). It would be inconsistent with these principles to hold the time limitation in § 49-14 (a) to be subject matter jurisdictional and thus nonwaivable by consent.

We recognize that, as the defendants argue, in other contexts we have held that where “a specific time limitation is contained within a statute that creates a right of action that did not exist at common law . . . the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived.” (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987) (time limitation on bringing wrongful death action held jurisdictional); see also Diamond National Corp. v. Dwelle, 164 Conn. 540, 325 A.2d 259 (1973) (time limitation for bringing action for foreclosure of mechanic’s lien held jurisdictional); Simmons v. Holcomb, 98 Conn. 770, 120 A. 510 (1923) (time limitation for bringing workers’ compensation claim held jurisdictional); but see L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 356 A.2d 144 (1975) (time limitation on action for wrongful tax assessment held nonjurisdictional); Karp v. Urban Redevelopment Commission, 162 Conn. 525, 294 A.2d 633 (1972) (time limitation on right to challenge compensation for taking held nonjurisdictional).

That line of cases, however, is distinguishable. These cases, for the most part, involve time limitations, not only on the durational life of the particular cause of action, but on the time within which the party must institute an action in court, or, as in Simmons v. Hol comb, supra, 98 Conn. 770, before the proper quasi-judicial agency. Thus, they involve statutes that set time limitations for instituting the process of adjudication. Because “[s]ubject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong”; Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 764-65; viewing a time limitation on the right to bring a case to court that did not exist at common law may, under appropriate circumstances, be considered a subject matter jurisdictional bar.

The time limitation contained in § 49-14 (a), however, is not within that category, even though the right to secure a deficiency judgment after a strict foreclosure was not recognized in our common law, and even though the deficiency judgment procedure is separate from but dependent on the common law, nonstatutory process of strict foreclosure. Society for Savings v. Chestnut Estates, Inc., supra, 176 Conn. 568. Unlike the cases in which we held the statutory time limitation to be jurisdictional, the § 49-14 (a) time limitation does not limit bringing the action to court in the first instance. The foreclosure action, of which the deficiency judgment procedure is simply a part, resulting in a supplemental judgment in the same case, is already before the court. Thus, the court already has subject matter jurisdiction over the action before it. In the absence of clear legislative indication, it would be cutting the notion of subject matter jurisdiction too finely to apply it, not to a separate statutory cause of action, but to a statutory procedure that is part of, and complementary to, the traditional and equitable common law action of strict foreclosure. Cf. LeConche v. Elligers, 215 Conn. 701, 709-15, 579 A.2d 1 (1990) (good faith certificate as prerequisite to medical malpractice action not subject matter jurisdictional).

This conclusion, that the thirty day time limitation in § 49-14 (a) is not subject matter jurisdictional, does not mean, however, that it can be ignored with impunity. The same legislative genealogy that teaches that it is not subject matter jurisdictional also teaches that it is analogous to General Statutes § 51-183b, establishing a time limit within which a trial court must render a decision. Under § 49-14 (a), as under § 51-183b, if the mortgagee files an untimely motion for a deficiency judgment, it would be improper for the court to render such a judgment unless the mortgagor had, either expressly or by its conduct, consented thereto. Dime Savings Bank v. Pomeranz, supra, 123 Conn. 583; see Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990) (“[i]f a late judgment has been rendered and the parties fail to object seasonably, consent may be implied”); Gordon v. Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973); Borden v. Westport, 112 Conn. 152, 154, 151 A. 512 (1930); Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 59, 654 A.2d 1238 (1995) (“[u]nless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open [a judgment] filed more than four months after a decision is rendered”). Thus, the time limitation in § 49-14 (a) is more properly considered to be mandatory, which means that it must be complied with absent waiver or consent by the parties, rather than subject matter jurisdictional, which would preclude any extension of time even by express waiver or consent.

In this case, the Court of Appeals certified to us that the strict foreclosure judgment of August 26,1992, which specifically included the November 1,1992 date for the beginning of the thirty day period under § 49-14 (a), had been approved by Magistrate Judge Eagan, and endorsed by the District Court on October 5,1992, without objection from either party. On this record, therefore, the defendants must be considered as having consented to the filing of the motion for a deficiency judgment within thirty days of November 1, 1992.

The second certified question is answered: No. We need not answer the first certified question.

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       General Statutes § 49-14 provides: “deficiency judgment, (a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.
      “(b) Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee, who shall have and exercise the powers of the court with respect to trial, judgment and appeal in such case.
      “(c) Any party to a mortgage foreclosure who has moved for an appraisal of property for the purpose of obtaining a deficiency judgment, but has not been granted a deficiency judgment, or has not received full satisfaction of any deficiency judgment obtained subsequent to the filing of such motion, may make a motion to the court for a deficiency judgment as set forth in subsection (a) of this section. If such motion is made on or before November 1, 1979, such moving party shall be deemed to have complied with all of the requirements of subsection (a) of this section and shall be entitled to the benefit of any deficiency judgment rendered pursuant to said subsection (a).
      “(d) Any appeal pending in the supreme court with regard to any deficiency judgment or proceedings relating thereto shall be stayed until a hearing is held pursuant to subsection (a) of this section. Any appellant in such an appeal shall have the right for a period of thirty days after the rendering of judgment pursuant to subsection (a) of this section to amend his appeal. There shall be no stay of such an appeal if no motion has been filed pursuant to this section on or before November 1, 1979.”

       Upon certification by the United States Court of Appeals for the Second Circuit, we accepted the following questions: (1) “In the circumstances of this case, when did the thirty day time limitation contained in General Statutes § 49-14 (a) begin to run?” and (2) “Is the thirty day time limitation contained in General Statutes § 49-14 (a) jurisdictional?” Federal Deposit Ins. Corp. v. Hillcrest Associates, United States Court of Appeals, Second Circuit, Docket No. 93-6372 (August 29, 1994).

       General Statutes § 51-199a provides: “uniform certification of questions of law act. (a) This section may be cited as the Uniform Certification of Questions of Law Act.
      “(b) The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
      “(c) This section may be invoked by an order of any of the courts referred to in subsection (b) of this section upon the court’s own motion or upon the motion of any party to the cause.
      “(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.
      “(e) The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the supreme court by the clerk of the certifying court under its official seal. The supreme court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the supreme court, the record or portion thereof may be necessary in answering the questions.
      “(f) Fees and costs shall be the same as in civil appeals docketed before the supreme court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.
      “(g) Proceedings in the supreme court shall be those provided in the rules of said court.

        “(h) The written opinion of the supreme court stating the law governing the questions certified shall be sent by the clerk under the seal of the supreme court to the certifying court and to the parties.
      “(i) This section shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.”
      Practice Book § 4168 provides in pertinent part: “The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”

       The individual defendants are: Charles F. Stelljas; Jackie Chan; Thomas J. Scozzafava, Jr.; Donald A. Mitchell; Henry H. Moy; Paul F. Valluzzo; William Behari, Jr.; Robert F. Morlock; Hans C. Otto; Robin E. Otto; and Adele Stelljas. We refer herein to Hillcrest and the individual defendants collectively as the defendants.

       Rule 12 of the Federal Rules of Civil Procedure provides in pertinent part: “(b) how presented. Every defense, in law or fact to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

       We note the Appellate Court’s recent holding that the thirty day time period provided in § 49-14 (a) is calculated from the last law day and not from the day that title becomes absolute in the mortgagee. First Federal Savings & Loan Assn. of Rochester v. Pellechia, 37 Conn. App. 423, 656 A.2d 688 (1995). That case, however, addressed only the calculation of the time period under the usual factual setting of a strict foreclosure, where neither the parties nor the court contemplate a disconnection between the last law day and title becoming absolute in the mortgagee. Thus, it does not address the first question certified in this case, namely: (1) “In the circumstances of this case, when did the thirty day time limitation contained in General Statutes § 49-14 (a) begin to run?” (Emphasis added.)

       Although there is no printed legislative history available for this statutory amendment, its passage so promptly after the decision in Dime Sav

        ings Bank v. Pomeranz, supra, 123 Conn. 581, compels the inference that it was enacted in response to that decision.

       General Statutes § 51-183b provides: “judgments in civil actions, time limit. Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Nicholas J. Wassil
    (15142)
    Peters, C. J., and Callahan, Borden, Berdon and Norcott, Js.

      (Two justices concurring separately)

    Argued February 6
    decision released May 16, 1995

      John L. Stawicki, special public defender, for thé appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, and Paul E. Murray, senior assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this criminal appeal is whether the defendant could be convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) for his role in delivering narcotics to a victim who subsequently injected the narcotics into his own body. In a two count information, the state alleged that the defendant, Nicholas J. Was-sil, had committed the crime of sale of narcotics in violation of General Statutes § 21a-277 by providing “to another, to wit: David Groleau, a narcotic substance, to wit: HEROIN ...” and had committed the crime of manslaughter in the first degree in violation of § 53a-55 in that he had, “under circumstances evincing an extreme indifference to human life, recklessly engagefd] in conduct [that] created a grave risk of death to David Groleau, to wit: the delivery of a narcotic substance to said David Groleau and assisting said David Groleau in administering that narcotic substance to himself, thereby causing the death of said David Groleau . . . .” A jury returned verdicts of guilty on both counts, and the trial court rendered judgment thereon. The defendant 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 jury reasonably could have found the following facts. On the evening of December 3,1991, the defendant and his friend David Groleau were at Groleau’s home in New Britain. The defendant knew that Groleau, who was an alcoholic and who previously had used depressants such as Valium and Percocet, “had been drinking and doing pills” during the course of the day. The defendant also knew or should have known that, by early evening, Groleau was very intoxicated. Witnesses who saw Groleau at the time testified that he was visibly inebriated.

Between 6 and 6:30 p.m., the defendant telephoned Danny Kiley, a friend of both the defendant and Groleau. The defendant asked Kiley to give him and Groleau a ride to Main and Glen Streets in New Britain so that they could purchase some heroin. Kiley agreed. Kiley then drove the defendant and Groleau to the requested address, where Kiley and Groleau both gave the defendant money for the purpose of purchasing heroin. The defendant exited the car alone, entered a building on the corner and returned to the car with heroin. Kiley then drove the defendant and Groleau back to Groleau’s home.

At Groleau’s home, the defendant prepared one “bag” of the heroin and injected the heroin into his own arm. The defendant exclaimed that the heroin was “very, very good,” which Kiley took to mean that it was particularly potent. The defendant then gave another bag of heroin to Groleau, who injected the heroin into his own arm. Groleau, who was approximately thirty to forty pounds heavier than the defendant, injected the same amount of heroin as had the defendant.

Approximately fifteen seconds after Groleau had injected the heroin into his arm, Groleau lost consciousness and collapsed onto the floor. After determining that Groleau was still breathing, Kiley and the defendant attempted to awaken him by walking him around and placing him in a cold shower. Although Kiley warned the defendant that Groleau needed medical assistance and twice attempted to call 911, the defendant prevented Kiley from completing the calls by hanging up the telephone. The defendant then told Kiley to leave Groleau’s house, and Kiley complied. When Kiley left Groleau’s house, Groleau was still breathing, although he had not regained consciousness.

At some point thereafter, Groleau stopped breathing. The defendant then attempted, unsuccessfully, to contact Groleau’s parents. Thereafter, at approximately 8 p.m., or approximately one hour after Groleau initially had lost consciousness, the defendant called 911 and requested an ambulance..

Paramedics arrived at Groleau’s home at approximately 8:08 p.m. and determined that Groleau was unconscious, unresponsive, asystolic, cyanotic and in cardiac arrest. One paramedic asked those present whether Groleau had consumed any drugs. The defendant volunteered no information in response to the paramedic’s questions.

Although the paramedics immediately began cardiopulmonary resuscitation of Groleau and established an intravenous line in order to administer various medications to him, including the narcotic antagonist Nar-can, they were unable to revive Groleau. At trial, a paramedic testified that the drug Narcan can reverse the effects of heroin and return a patient’s breathing and heart rate to normal, but that it is effective only if administered before the patient has suffered a cardiac arrest.

The paramedics thereafter transported Groleau to New Britain General Hospital, where he was pronounced dead at 8:47 p.m. After performing an autopsy, the medical examiner determined that Groleau had consumed alcohol, Valium and heroin prior to his death. The medical examiner described the cause of death as “combined acute drug toxicity.” At trial, the medical examiner further testified that the levels of alcohol and Valium alone in Groleau’s blood were not lethal, that the level of heroin alone was “potentially life-threatening,” and that Groleau would not have died but for the administration of the heroin. The defendant offered no evidence to rebut the medical examiner’s testimony.

At the close of the evidence, the court instructed the jury that, with respect to the charge of manslaughter in the first degree, the jury should return special verdicts on two separate theories of criminal liability. First, the jury was to decide whether the defendant was guilty of manslaughter “by delivery of narcotics.” Second, the jury was to decide whether the defendant was guilty of manslaughter by “assisting in administering the narcotics.” The jury also was instructed that there was “no requirement that [the two verdicts] be the same verdict.”

With respect to the charge of sale of narcotics, the court instructed the jury that “[s]ale is any form of delivery. You were all questioned about your use of common terms and ability, willingness to consider that the law has sometimes different definitions. The definition of sale is delivery. Delivery meaning the actual transfer from one person to another.” The court refused the defendant’s request that the jury also be instructed that it had to find that the defendant “delivered] the drugs or some portion of them to another ... for a valuable consideration.” The defendant then excepted to the charge as given on the grounds that “at the very least the jury instructions should have included the entire statutory definition of sale, which is that [sale is] any form of delivery which includes barter, exchange or gift or offer [therefor] .... Not ending the definition of sale with any form of delivery.” The court gave the jury no supplemental instructions relating to the definition of “sale.”

The jury found the defendant guilty of both counts of the information. As to the charge of manslaughter in the first degree, the jury found him guilty by delivery of a narcotic substance, but not guilty by assisting in the administration of the narcotic substance.

Thereafter, the defendant moved for a judgment of acquittal on the charge of manslaughter in the first degree. He argued that, in acquitting him of manslaughter by assisting in the administration of narcotics, the jury necessarily had found that Groleau had administered the narcotics to himself. In light of this factual finding, the defendant contended that he could not, as a matter of law, be held responsible for Groleau’s death, because the death was caused not by his delivery of the narcotics but by Groleau’s self-injection of the narcotics, which was, therefore, an efficient intervening cause of the death. The trial court denied the defendant’s motion.

On appeal to this court, the defendant claims that the trial court improperly refused: (1) to acquit the defendant of manslaughter in the first degree; and (2) to instruct the jury that the crime of sale of narcotics required proof that the drugs had been delivered for consideration. We reject both claims and affirm the judgment of the trial court.

I

We first discuss whether the trial court improperly refused to acquit the defendant of manslaughter in the first degree. The defendant argues that the jury’s implicit finding that Groleau administered the heroin to himself requires an acquittal on the charge of manslaughter by delivery of the drug to Groleau. Specifically, the defendant argues that Groleau’s self-injection, as a matter of law, was an efficient intervening cause of Groleau’s death, so that the defendant’s delivery of the drug, as a matter of law, did not cause Groleau’s death. We disagree.

To prove causation, the state is required to demonstrate that the defendant’s conduct was a “proximate cause” of the victim's death—i.e., that the defendant’s conduct contributed substantially and materially, in a direct manner, to the victim’s injuries and that the defendant’s conduct was not superseded by an efficient intervening cause that produced the injuries. State v. Leroy, 232 Conn. 1, 13, 653 A.2d 161 (1995); State v. Spates, 176 Conn. 227, 233-34, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979). “ ‘Proximate cause’ in the criminal law does not necessarily mean the last act of cause, or the act in point of time nearest to death. The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of death. An act or omission to act is the proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the resulting death. It is the cause without which the death would not have occurred and the predominating cause, the substantial factor, from which death follows as a natural, direct and immediate consequence. . . . It is unnecessary for ‘proximate cause’ purposes that the particular kind of harm that results from the defendant’s act be intended by him. In many situations giving rise to criminal liability, the harm that results is unintended, yet is directly or indirectly caused by an act of the defendant. In such cases, where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.” (Citations omitted.) State v. Spates, supra, 233-35. The defendant’s conduct need not be the predominating cause or the substantial factor in bringing about the victim’s injuries, so long as his conduct was “a cause that necessarily set in operation the factors that accomplish the injury.” State v. Leroy, supra, 13.

Applying the law of causation in the context of our manslaughter statute, we previously have considered and rejected a claim similar to that of the defendant here. In State v. Pellegrino, 194 Conn. 279, 480 A.2d 537 (1984), the evidence showed that a fire recklessly set by the defendant and his accomplice had resulted in the accomplice’s death. The defendant contended that, as a matter of law, the accomplice’s conduct should relieve the defendant of criminal responsibility for the accomplice’s death. We rejected the claim, holding that “the fact that [the accomplice also] may have been negligent with respect to his own safety can no more relieve the defendant of criminal liability than if [the accomplice] had been an innocent victim who was contributorily negligent.” Id., 296. We further explained that the question of whether the defendant’s conduct caused the victim’s death in the circumstances of that case was not a question of law but a question of fact for the jury. Id., 294-96 and 296 n.22; see also State v. Alterio, 154 Conn. 23, 30, 220 A.2d 451 (1966).

Notwithstanding these precedents, the defendant argues in this case that a victim’s self-administration of drugs, as a matter of law, is an efficient intervening cause of his own death, thus barring any manslaughter prosecution of the person delivering the drugs. According to the defendant, the legislature simply did not intend the manslaughter statute to apply to individuals who deliver, but do not administer, narcotics whose consumption results in death. The defendant bases his argument on two cases from the New York courts, the first of which dismissed a manslaughter indictment where the defendant had delivered but had not injected the heroin that resulted in the victim’s death; People v. Pinckney, 38 App. Div. 2d 217, 328 N.Y.S.2d 550 (1972), aff’d without opinion, 32 N.Y.2d 749, 297 N.E.2d 523, 344 N.Y.S.2d 643 (1973); and the second of which affirmed a manslaughter conviction where the defendant had both delivered and injected the heroin that resulted in the victim’s death; People v. Cruciani, 36 N.Y.2d 304, 327 N.E.2d 803, 367 N.Y.S.2d 758 (1975). According to the defendant, the New York courts distinguished between delivery of narcotics and administration of narcotics for purposes of the manslaughter statute on the basis of the New York legislature’s intent, and, because of our frequent reliance on New York’s interpretations of its penal code, we should recognize the same distinction on the basis of the Connecticut legislature’s intent.

The defendant’s argument is unpersuasive for two reasons. Careful examination of the New York cases discloses that New York has not created an absolute distinction between the delivery of narcotics and the administration of narcotics for purposes of its manslaughter statute. Furthermore, even if the New York law were as the defendant represents it to be, the New York precedents would be inapposite in Connecticut because of the differences between the Connecticut and New York statutory schemes.

A

The defendant is correct that, in Pinckney, the Appellate Division of the New York Supreme Court barred a drug related manslaughter prosecution on the basis of its conclusion that such a prosecution did not comport with the intent of the New York legislature. The Pinckney decision itself, however, did not suggest that the New York legislature had intended to distinguish, for the purposes of its manslaughter statute, between deaths resulting from the delivery of drugs and deaths resulting from the administration of drugs. Rather than focusing on such a distinction as a ground for dismissal of the indictment, the court in Pinckney stated: “As long ago as 1897, the State of New York has had legislation dealing with narcotics. . . . Since 1938 the State has attempted to control the sale, use and distribution of narcotic drugs with further legislation . . . . In 1969 the punishment to be imposed upon persons convicted of drug crimes was increased .... However, the legislation did not include in an amendment or addition to the homicide provisions of the Penal Law any reference to death caused by the use of dangerous drugs. In our . opinion, if the Legislature had intended to include homicide by the selling of dangerous drugs, it would have amended the sections in the Penal Law relating to homicide.” (Citations omitted; emphasis added.) People v. Pinckney, supra, 38 App. Div. 2d 220-21.

The defendant also is correct that in Cruciani, in which the defendant actually had injected the narcotics into the victim, the New York Court of Appeals affirmed a manslaughter conviction. Like the Pinckney opinion, however, the Cruciani opinion did not suggest that its holding depended upon a finding that the New York legislature had intended to allow manslaughter prosecutions based on the administration of drugs, but not based on the mere delivery of drugs. In the intervening years, the New York statutes had remained unchanged, so that, at the time Cruciani was decided, there still was no evidence of any express legislative intent to treat as homicides “any . . . deathfs] caused by the use of dangerous drugs.” People v. Pinckney, supra, 38 App. Div. 2d 221. The court in Cruciani therefore recast the Pinckney holding, concluding that the earlier decision had been based not on legislative intent, but rather on the insufficiency of the evidence of causation in the earlier case. The conviction could be upheld in Cruciani, on the other hand, because, on the facts of that case, there was sufficient evidence of causation. The court noted that, unlike the defendant in Pinckney, the defendant in Cruciani had injected the drugs into the victim at a time when he knew that the victim already was “ ‘completely bombed out on downs.’ ” People v. Cruciani, supra, 36 N.Y.2d 305. The court then explained the result in Pinckney as follows: “[In Pinckney,] the defendant had sold the drug to the deceased, but did not inject the heroin. Nor was there any proof, as here, of awareness of the ongoing effect of drugs in the victim’s body at the time any self-inflicted injection might have been made, or, beyond the general knowledge of the injuriousness of drug-taking, of a real threat to life. The remoteness of that fatal injection from the fact of sale diffused intent and scienter by possibly unknown or intervening events beyond Pinckney’s control.” (Emphasis added.) Id., 305-306.

Subsequent to Cruciani, and on the basis of its holding in that case, the New York Court of Appeals further explained that a defendant’s acts may “cause” the victim’s death even if the victim administers the fatal dose of drugs to himself or herself. People v. Galle, 77 N.Y.2d 953, 955-56, 573 N.E.2d 569, 570 N.Y.S.2d 481 (1991), citing People v. Cruciani, supra, 36 N.Y.2d 304. In Galle, the evidence showed that the “defendant [had] injected the decedent with her first two doses of cocaine, knowing full well that she planned to continue taking injections that evening until their relatively substantial supply of the drug had been exhausted,” but “the decedent subsequently [had] administered her own injections, including the one which immediately preceded her death . . . People v. Galle, supra, 955. Without discussing legislative intent or attempting to distinguish between prosecutions based on delivery of drugs and those based on administration of drugs, the court affirmed the defendant’s conviction. It concluded that the jury’s finding of causation had been appropriate in light of the record evidence that, at the time of the defendant’s acts, the decedent’s subsequent actions in administering her own injections had been foreseeable and that the defendant’s actions were a substantial factor in the decedent’s death. Id.

There is no suggestion in the decision in Galle that the Court of Appeals would have reached a different result if all of the drugs had been administered by the victim, and the defendant had merely delivered the drugs. To the contrary, as other New York cases demonstrate, the result would have been the same. Earlier, in People v. Garbarino, 152 App. Div. 2d 254, 257, 549 N.Y.S.2d 527 (1989), the Appellate Division of the New York Supreme Court had affirmed a conviction for criminally negligent homicide on evidence that the defendants had provided twenty-seven ounces of hard liquor to their fifteen year old son and encouraged him to drink it, even though the defendants did not physically introduce the alcohol into the victim. Subsequently, and therefore even more importantly, in People v. Duffy, 79 N.Y.2d 611, 595 N.E.2d 814, 584 N.Y.S.2d 739 (1992), the New York Court of Appeals upheld the defendant’s conviction for manslaughter on the basis of his role in enabling and encouraging the seventeen year old victim to commit suicide by providing him with a rifle and ammunition and challenging him to kill himself when the defendant knew that the victim was already suicidal. Because “[t]he jury could rationally have concluded that the risk of [the victim’s] taking these actions was something which [the] defendant should have, under the circumstances, plainly foreseen,” the Court of Appeals rejected out-of-hand the defendant’s argument that the victim’s “act of loading the rifle and using it to kill himself constituted an intervening cause which—as a matter of law—relieved [the] defendant of criminal responsibility.” Id., 616.

Although neither Garbarino nor Duffy involved the provision of narcotics, neither provides any support for the proposition that, under New York law, the rules of causation that apply to cases involving the provision of alcohol or firearms do not apply to the provision of narcotics. To the contrary, both cases suggest that there is a single, uniform rule of causation, as both cases rely on Cruciani, and both cases, like Cruciani, distinguish the result in Pinckney only on the ground that there was insufficient evidence of foreseeability and criminal responsibility in that particular case. See People v. Duffy, supra, 79 N.Y.2d 616; People v. Garbarino, supra, 152 App. Div. 2d 258. Since Pinckney, none of the New York cases—whether involving the provision of drugs or other reckless conduct—has been justified by reference to legislative intent. There is, therefore, no basis for the defendant’s argument that the New York courts have recognized a legislative intent to classify as manslaughters only deaths resulting from the administration, and not the delivery, of drugs.

B

Moreover, even if we were to accept the defendant’s argument that the New York courts have recognized a legislative intent to create an absolute distinction between the administration and the delivery of drugs, we would conclude that such an intent by the legislature in New York has not been replicated by the legislature in Connecticut. Unlike the New York legislative history discussed in Pinckney, Connecticut’s legislative history does reflect an intention to prosecute as homicides certain deaths resulting from the provision of drugs. Our General Assembly has enacted legislation pursuant to which a person who sells narcotics for economic gain to an individual who subsequently dies as a result of using the drugs can be convicted of capital felony. See General Statutes § 53a-54b (6).

We recognize that the capital felony legislation does not expressly state that a person can be convicted of manslaughter for recklessly delivering narcotics, without economic gain, to an individual who subsequently dies as a result of using the drugs. In our assessment of the legislature’s intent, however, we are mindful of the breadth of the first degree manslaughter statute as we have construed it in other circumstances. Without express legislative instructions, we have applied the statute to the conduct of a person who recklessly throws an infant into a bathtub; cf. State v. Carpenter, 214 Conn. 77, 80-81, 83, 85, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992); recklessly sets a fire; cf. State v. Pellegrino, supra, 194 Conn. 282-83; or recklessly ties up an individual who suffers from a coronary condition during the commission of a robbery. Cf. State v. Spates, supra, 176 Conn. 229-30. In this case, as well, express legislative provisions are not necessary, because the manslaughter statute broadly applies to all reckless conduct that occurs under circumstances evincing extreme indifference to human life, creates a risk of death to another person, and thereby causes that person’s death. See General Statutes § 53a-55 (a) (3). Nothing in either the language or legislative history of our capital felony statute suggests that, in defining as a capital crime the sale of drugs for economic gain that results in death, the legislature intended completely to exempt from criminal liability the reckless delivery of drugs without economic gain that results in death. See People v. Duffy, supra, 79 N.Y.2d 615 (statute that expressly imposed criminal penalty on intentionally causing another to commit suicide did not preclude prosecution under manslaughter statute for recklessly causing another to commit suicide, as long as elements of manslaughter were proven).

In sum, we reject the defendant’s claim that Groleau’s conduct in administering the drugs to himself, as a matter of law, was an efficient intervening cause of Groleau’s death. In so holding, we adopt the position not only of the New York courts, but of courts in the majority, if not the entirety, of the jurisdictions that have considered the question. See People v. Taylor, 11 Cal. App. 3d 57, 59, 89 Cal. Rptr. 697 (1970); Ureta v. Superior Court, 199 Cal. App. 2d 672, 676, 18 Cal. Rptr. 873 (1962); Commonwealth v. Catalina, 407 Mass. 779, 790-91, 556 N.E.2d 973 (1990); State v. Thomas, 118 N. J. Super. 377, 380, 288 A.2d 32, cert. denied, 60 N.J. 513, 291 A.2d 374 (1972); State v. Randolph, 676 S.W.2d 943, 948 (Tenn. 1984); see generally annot., 32 A.L.R.3d 589; cf. United States v. Sargent, 18 M. J. 331, 333, 339 and n.6 (Court of Military Appeals 1984) (where statute treats as manslaughter both death occurring “while [defendant is] perpetrating or attempting to perpetrate an offense . . . directly affecting the person” and death “by culpable negligence,” mere distribution of narcotics to victim does not “directly affect the person” but may constitute manslaughter “by culpable negligence” [internal quotation marks omitted]).

We conclude, furthermore, that, on the basis of the evidence presented in this case, the jury reasonably could have found that the defendant’s acts were the proximate cause of Groleau’s death. The record supports the jury’s finding that the defendant’s conduct substantially and materially contributed, in a direct manner, to Groleau’s death. The actions of the defendant in purchasing and delivering the narcotics led directly to Groleau’s injection of those narcotics, and thus, to his death. But for the delivery of the narcotics, moreover, death would not have occurred. The record also supports the jury’s finding that, as a matter of fact, Groleau’s acts were not an efficient intervening cause of his death. The record supports the inference, for example, that because Groleau already was inebriated at the time the defendant delivered the drugs to him, he did not voluntarily, consciously disregard a known risk to himself when he injected the drugs. Because the defendant has not challenged his manslaughter conviction on any ground other than that Groleau’s acts constituted an efficient, intervening cause of his death, his conviction of manslaughter must be affirmed.

II

With respect to the defendant’s conviction of the crime of sale of narcotics, he renews on appeal the claims that he made at trial that the court’s instructions to the jury were improper. The defendant argues that the trial court’s instructions were incomplete, because General Statutes § 21a-277 requires proof not only of the delivery of narcotics, but also of delivery of the narcotics for consideration. In the alternative, even if proof of consideration was not necessary, the defendant argues that the trial court should have read to the jury the entire statutory definition of “sale,” rather than simply defining sale as “any form of delivery.” We reject both of the defendant’s arguments.

The defendant’s first claim is refuted by the express language of General Statutes § 21a-240 (50), which provides that, for purposes of § 21a-277, “ ‘[s]ale’ is any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.” (Emphasis added.) Because even a “gift” of narcotics would be a type of delivery that constituted a “sale” of those narcotics, § 21a-277 cannot be construed to require proof that the narcotics were delivered for consideration. See Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951) (“ ‘[a] gift is the transfer of property without consideration’ ”); see also State v. Mierez, 24 Conn. App. 543, 551, 590 A.2d 469, cert. denied, 219 Conn. 910, 593 A.2d 136 (1991) (“ ‘sale’ of an illegal drug is not limited to an exchange for value”); State v. Jackson, 13 Conn. App. 288, 294, 535 A.2d 1327 (1988) (same); State v. Parent, 8 Conn. App. 469, 474, 513 A.2d 725 (1986) (same).

We also reject the defendant’s alternative argument that the trial court should have read to the jury the entire definition of “sale” from § 21a-240 (50), rather than merely informing the jury that sale was “any form of delivery.” The defendant’s argument is based on the premise that the statute criminalizes not just “any form of delivery,” but rather “any form of delivery [that] includes barter, exchange or gift, or offer therefor.” Thus, the defendant argues, the jury was required to determine whether this delivery was a “barter, exchange or gift, or offer therefor” in order to find the defendant guilty. In light of the legislative history of the statute, we conclude that the defendant’s claim cannot be sustained.

As originally enacted, § 21a-240 (50) provided that “ ‘sale’ includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.” General Statutes (Rev. to 1968) § 19-443 (33). In other words, “sale” was not originally defined narrowly to mean only “barter, exchange or gift . . .” but rather was defined broadly as including “barter, exchange or gift . . .

In 1972, the legislature amended the statute by inserting the words “is any form of delivery which” immediately preceding the word “includes.” Public Acts 1972, No. 278, § 1. This is the language that presently appears in the statute. The express purpose of the amendment was not to limit the types of deliveries that constituted sales, but rather to “conform the language [of the General Statutes] relative to definitions, drugs, etc., to the bill that Congress [had] enacted in 1970 which is called the Comprehensive Drug Abuse Prevention and Control Act of 1970.” 15 H.R. Proc., Pt. 7, 1972 Sess., p. 2591, remarks of Representative John A. Carrozzella; see 15 S. Proc., Pt. 5,1972 Sess., p. 2046, remarks of Senator Edward S. Rimer, Jr. The federal statute, unlike the state statute, had criminalized the “distribution” of narcotics and then had defined “distribute” to mean “to deliver.” Under federal law, moreover, such distribution was illegal whether or not it included a “barter, exchange, gift, or offer therefor.” See 21 U.S.C. § 841 (a) (criminalizing, inter alia, “distribution” of drugs); 21 U.S.C. § 802 (11) (defining “distribute” as “to deliver”); 21 U.S.C. § 802 (8) (defining “deliver” in the same terms now contained in General Statutes § 21a-240 [11]). Apparently, therefore, the legislature added the words “includes any delivery which” to the definition of “sale” only to make it clear that, like the federal statute, the state statute prohibited any “delivery” of drugs. Indeed, in the same 1972 amendments, the legislature copied the definition of “delivery” verbatim from the federal to the state statute. Compare 21 U.S.C. § 802 (8) with General Statutes § 21a-240 (11) (“ ‘[d]eliver or delivery’ means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship”).

We conclude, therefore, that, under § 21a-240 (50), “any form of delivery” of narcotics constitutes a “sale” of narcotics, whether the delivery is also a “barter, exchange or gift, or offer therefor.” We thus read the statute as if it contained a comma after the word delivery: “ ‘[sjale’ is any delivery, which includes barter, exchange or gift or offer therefor . . . .” See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 189-90, 592 A.2d 912 (1991) (statute’s existing punctuation “can be a useful tool for discerning legislative intent” but “is not generally considered an immutable aspect of a legislative enactment”); Grievance Committee v. Dacey, 154 Conn. 129,136-37, 222 A.2d 339, appeal dismissed, 386 U.S. 683, 87, S. Ct. 1325,18 L. Ed. 2d 404, reh. denied, 387 U.S. 938, 87 S. Ct. 2048, 18 L. Ed. 2d 1006 (1966) (ignoring statute’s punctuation where inconsistent with legislative intent); State v. Aspinall, 6 Conn. App. 546, 550, 506 A.2d 1063 (1986) (same). Because the jury’s only duty was to determine whether the defendant’s acts constituted a “delivery,” the trial court properly declined to read to the jury the entire definition of “sale.” See State v. Vessichio, 197 Conn. 644, 650, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986) (trial court need not instruct jury as to statutory definitions that are not at issue in case).

The judgment is affirmed.

In this opinion Callahan and Borden, Js., concurred.

ring. I fully agree with part II of the majority opinion, and I concur in the result of part 1.1 write separately because I am concerned that part I of the majority opinion adopts an overly expansive view of causation that is, in my view, unnecessary to the resolution of this case and incorrect as a matter of policy. I concur in the result because I believe that there is ample evidence in the record in this case for the jury to have found that the defendant engaged in conduct that created a grave risk of death to another person, thereby causing his death.

The defendant claims that “the mere transfer of heroin to another person who then injects it into himself and dies of a combined acute drug toxicity overdose” (emphasis added) does not constitute manslaughter in the first degree pursuant to General Statutes § 53a-55 (a) (3). In my view, the issue, as framed by the defendant, misconstrues the nature of the record in this case. The jury reasonably could have concluded, on the basis of the evidence presented, that the defendant’s acts in causing David Groleau’s death went beyond the “mere transfer of heroin.” Therefore, because there was sufficient evidence on the record to sustain the defendant’s conviction, I would not reach the issue of whether the mere act of delivering drugs constitutes manslaughter.

From the evidence presented at trial, the jury reasonably could have found that the defendant had: (1) delivered heroin to Groleau, whom he knew or should have known to be intoxicated; (2) given one bag of heroin to Groleau stating that the heroin was “very, very good”; (3) interfered twice with Danny Kiley’s effort to contact emergency medical assistance; (4) ordered Kiley to leave Groleau’s home, while Groleau was still breathing; (5) waited nearly one hour after Groleau had lost consciousness before calling emergency medical assistance; and (6) refused to provide vital information to the paramedics who had attempted to render aid to Groleau.

From these facts, and other testimony at trial, the jury reasonably could have inferred that: (1) the defendant had delivered heroin to Groleau, who did not have sufficient capacity to act voluntarily; (2) the defendant encouraged Groleau to use the heroin by describing it as “very, very good”; and (3) the defendant’s affirmative interference with Kiley’s attempts to obtain medical assistance and his failure thereafter to provide needed information to the paramedics contributed significantly to Groleau’s death.

Thus, the jury reasonably could have determined that, on the basis of the evidence and the reasonable inferences drawn therefrom, that the defendant’s conduct, as a whole, was “a cause that necessarily set in operation the factors that accomplish[ed] the injury”; State v. Leroy, 232 Conn. 1, 13, 653 A.2d 161 (1995); see p. 182 of the majority opinion; and thus recklessly caused the death of Groleau. The trial court’s judgment of conviction of first degree manslaughter should be sustained on this basis and, therefore, I would not engage in further analysis of the defendant’s claim. Accordingly, I respectfully concur in the result.

       General Statutes § 53a-55 provides: “manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       General Statutes § 21a-277 provides in relevant part: “(formerly sec. 19-480). PENALTY FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. . . .”

       At trial, Kiley testified that it was the defendant who had prepared the heroin and who had injected it into Groleau’s arm. As the state concedes, however, the jury necessarily rejected Kiley’s testimony on this point, because it acquitted the defendant of manslaughter in the first degree by administering the narcotic to Groleau.

       At trial, a paramedic explained that the term “unresponsive” signified that Groleau had not responded either to being shaken or to receiving a sternum rub; that the term “cyanotic” meant that Groleau’s skin had had a bluish tint; and that the term “asystolic” meant that Groleau had had no electrical activity in his heart.

       Groleau’s blood level of diazepam, the active ingredient in Valium, was 0.06 milligrams per liter, which the medical examiner characterized as a “therapeutic” level. Groleau’s blood alcohol level was 0.18 percent, which the medical examiner characterized as “significant,” but not “lethal.” Groleau’s blood level of morphine, a heroin derivative, was 0.20 milligrams per liter, which the medical examiner characterized as “significant” and “potentially life-threatening. ”

       In instructing the jury as to the element of causation, the trial court read to the jury, verbatim, the same definition of proximate cause that we quote here. The defendant raises no challenge to the court’s instructions on this issue. The defendant thus does not claim that an additional instruction should have been given relating to the definition of “efficient, intervening cause.” Cf. State v. Munoz, 233 Conn. 106,122, 659 A.2d 683 (1995) (where evidence was sufficient to raise reasonable doubt as to whether victim’s death resulted from intervening cause, trial court improperly failed to instruct jury as to law of intervening cause).

       In our civil cases, likewise, this court and the Appellate Court generally have rejected the defendants’ arguments that, as a matter of law, there had been intervening causes of the plaintiffs’ injuries. See, e.g., Merhi v. Becker, 164 Conn. 516, 522-23, 325 A.2d 270 (1973) (jury could find that defendant sponsor of picnic proximately caused plaintiff invitee’s injuries by serving alcohol to invitees and failing to hire adequate security; intentional act of other invitee in driving his vehicle into plaintiff not intervening cause as matter of law); Somma v. Gracey, 15 Conn. App. 371, 375-77, 544 A.2d 668 (1988) (jury could find that defendant attorneys proximately caused losses incurred by clients in sale of company by failing to perform due diligence investigation of purchasers; criminal acts of company’s purchasers not intervening cause as matter of law); but see Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 486, 523 A.2d 940 (1987) (third party’s acts were intervening cause as matter of law; “[w]hen Coons left the keys in the unlocked car in a high crime area, it may well have been a foreseeable risk that the car would be stolen by a third party and negligently operated so as to cause harm to an innocent party. ... It was not also foreseeable, however, that a third party would steal the car, drive elsewhere, leave the car, enter a store, commit an armed robbery, and assault an innocent person in the course of that robbery.” [Citation omitted.])
      In one line of civil cases, however, we historically have accepted an argument similar to that made by the defendant here. At common law, it was the rule that a provider of alcohol could not be held liable for damage caused by the consumer of the alcohol, because the consumer’s voluntary ingestion of the alcohol, as a matter of law, was said to be an efficient intervening cause of such damage. See Slicer v. Quigley, 180 Conn. 252, 255-56, 429 A.2d 855 (1980), and cases cited therein. We have continued to adhere to this rule despite its logical infirmities; see Quinnett v. Newman, 213 Conn. 343, 351-52, 568 A.2d 786 (1990) (Peters, C. J., dissenting); because of alleged legislative acquiescence in the rule as manifested by the Dram Shop Act. Id., 347 (majority opinion); see General Statutes § 30-102. There has been no similar legislative determination that would persuade us to conclude that every victim’s self-administration of drugs is an efficient intervening cause of his own death, regardless of the factual circumstances in which those drugs may have been delivered to the victim. In any event, the civil law rule discussed in Slicer v. Quigley, supra, 255-56, would not be applicable in light of the specific factual circumstances of this case.

       We infer such a legislative intent only from our capital felony statute. We do not consider whether we also might infer such a legislative intent from the fact that the Connecticut manslaughter statute itself differs from that of New York. Compare General Statutes § 53a-55 with N.Y. Penal Code § 125.20 (McKinney 1987) (containing language equivalent to § 53a-55 [a] [1] through [2] but containing no language equivalent to § 53a-55 [a] [3], the subsection under which this defendant was prosecuted); cf. State v. Walton, 227 Conn. 32,45 n.11, 630 A.2d 990 (1993) (distinguishing New York cases in interpretation of General Statutes § 53a-4); State v. Ortiz, 217 Conn. 648, 654-56 and n.6, 588 A.2d 127 (1991) (relying on New York cases for interpretation of General Statutes § 53a-54a [a]); State v. Asherman, 193 Conn. 695, 732 n.12, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985) (“[b]ecause the Connecticut penal code has been modeled after its New York counterpart we have derived sustenance from the New York decisions interpreting its code”).

       General Statutes § 53a-54b provides in relevant part: “CAPITAL FELONY. A person is guilty of a capital felony who is convicted of any of the following ... (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 . . . .”

       We do not decide whether, without such evidence, Groleau’s acts would have been an efficient intervening cause of his own death as a matter of law. See State v. Pellegrino, supra, 194 Conn. 296 n.22.

       In the absence of such a challenge, we have no occasion to decide whether the evidence was sufficient to demonstrate that, in delivering the narcotics, the defendant had “consciously disregard[ed]” a “grave risk of death” to Groleau or that he had acted “under circumstances evincing an extreme indifference to human life.” See General Statutes § 53a-3 (13) (defining standard of recklessness), and § 53a-55 (manslaughter in the first degree).

       The defendant concedes that, in light of the testimony at trial, the jury reasonably could have concluded that the defendant’s acts constituted a “delivery” of narcotics under § 21a-240 (50). We thus need not discuss the meaning of “delivery” under that statute. See General Statutes § 21a-240 (11) (“ ‘[djeliver or delivery’ means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship”); see also United States v. Swiderski, 548 F.2d 445, 451 (2d Cir. 1977) (defining “delivery” under 21 U.S.C. § 802 [8], on which § 21a-240 [11] is based, and holding that while transfer of drug from agent to his principal constitutes delivery, “the sharing of drugs between two persons who simultaneously acquire joint possession” does not constitute delivery).

       Because the defendant did not argue that there was insufficient evidence of recklessness or that the circumstances failed to demonstrate extreme indifference to human life, I, like the majority, do not consider either of these issues. See footnote 11 of the majority opinion.

       See footnote 1 of the majority opinion.

       The defendant’s conduct after Groleau injected himself is relevant to the overall determination of causation. See State v. Sivri, 231 Conn. 115, 129, 646 A.2d 169 (1994); see also State v. Francis, 228 Conn. 118,128-29, 635 A.2d 762 (1993); State v. Greenfield, 228 Conn. 62, 78, 634 A.2d 879 (1993). It is reasonable to extend the logic of these cases to include an inference that when a defendant fails to summon medical attention and affirmatively interferes with another’s attempt to render aid, he evinces extreme indifference to human life, and thereby recklessly causes the death of another.
      Significantly, it is not disputed that at the time that Kiley first attempted to summon assistance, Groleau was still breathing. Further, the paramedic testifying at trial stated that the effective treatment for heroin overdose is effective only before cardiac arrest occurs. Therefore, there is no danger that the correlation between the defendant’s acts subsequent to Groleau’s injection of heroin and Groleau’s death is merely speculative. See State v. Sivri, supra, 231 Conn. 164 (Peters, C. J., dissenting).