author: Co vello, J. Shea, J.,

text:
    Connecticut Air Service, Inc. v. Danbury Aviation Commission
    (13563)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 2
    decision released June 27, 1989

      Jonathan B. Orleans, with whom were Julie A. Harrison and, on the brief, L. Douglas Shrader, for the appellant (plaintiff).

      Keith D. Dunnigan, with whom, on the brief, was Philip F. von Kuhn, for the appellee (defendant).
   Co vello, J.

This is an appeal from a decision of the defendant Danbury Aviation Commission (commission). The dispositive issue is whether a right to appeal from a decision of this commission exists under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. We conclude that the record is inadequate to make such a determination and remand the matter for further proceedings.

On November 16, 1987, the commission voted to revoke certain permits that it had issued to the plaintiff Connecticut Air Service, Inc. (ConnAir), which authorized ConnAir to do business as a fixed base operator (FBO) at the Danbury Municipal Airport. ConnAir appealed this decision to the Superior Court. The commission filed a motion to dismiss the action claiming that no statutory basis exists for such an appeal and, therefore, the court was without jurisdiction to entertain the matter. In response to the motion, ConnAir argued that the commission is an “agency” within the meaning of General Statutes § 4-166 (1) and that a right of appeal therefore exists under the provisions of General Statutes § 4-183. On August 4, 1988, the trial court found that the commission is not an agency within the meaning of § 4-166. Finding no other authority for an appeal, the trial court concluded that it was indeed without jurisdiction, granted the motion to dismiss and rendered a judgment of dismissal. ConnAir appealed that decision to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

On appeal, ConnAir first renews its argument that the commission is an “agency” within the meaning of § 4-166 (1) and therefore its decisions are appealable pursuant to § 4-183. Specifically, the plaintiff claims that the commission is a “state . . . commission” within the meaning of § 4-166 (1) and, therefore, all of its decisions are appealable as a matter of right under the UAPA. We do not agree that the commission is such an agency.

The responsibility for insuring the general public interest and safety for those traveling in aircraft Connecticut reposes in the commissioner of transportation (commissioner). General Statutes § 15-41. In furtherance of this mandate, the commissioner is charged with the enforcement of all statutes, regulations and other laws of this state concerning aeronautics. General Statutes § 15-44. The commissioner has statutory powers to conduct investigations, inquiries and hearings concerning aeronautical matters. General Statutes 15-45.

Statutes and regulations that the commissioner is required to enforce include those relating to operations of aircraft while either the pilot or the aircraft is not properly licensed; the revocation or suspension of the right to operate aircraft that are not in an airworthy condition; the revocation or suspension of the licenses of unqualified or chemically dependent pilots; the inspection of airports, restricted landing areas, heliports, air schools, flying clubs and air navigational facilities; the unlawful use of, tampering with, or interference with aircraft; tampering with or interference with any airport, heliport landing field or airway and its associated equipment; investigation of aircraft accidents; the careless, negligent or reckless operation of aircraft; the acquisition of land and airspace for the use of aircraft, airports, heliports, restricted landing areas, as well as areas that may be hazardous to airports; the removal of obstructions to air navigation; the establishment and maintenance of clear zones for all public airport runways; the disposition of abandoned aircraft; the operation of aircraft by those who are under the influence of alcohol or drugs or the carriage of passengers who are under the influence of alcohol or drugs; and finally, the establishment of airport approach plans.

It is evident that the commissioner possesses comprehensive powers with respect to the supervision and enforcement of virtually every aspect of aeronautical activity within the state. These obligations and duties are not limited to those activities carried on by the state or those occurring solely on or over state property, but also include aeronautical activities conducted within the confines of any municipality.

For its part, the Danbury Aviation Commission derives its authority from Connecticut Special Act No. 381 of the January session of the 1947 General Assembly. It is specifically authorized “to make and enforce local rules, regulations and ordinances concerning ground and flying activities on or over town property at airports, and to provide for compliance with the enforcement of federal and state laws, rules and regulations relating to aeronautics. ” (Emphasis added.) 25 Spec. Acts 580, No. 381, § 1 (3). This special act is the only enumeration of the commission’s powers.

General Statutes § 15-80 also authorizes municipalities to establish aviation commissions such as the one here in issue. Such commissions are only empowered, however, to administer local ordinances that concern airports, landing fields and aeronautics. Danbury has never enacted any local ordinances concerning its airport, landing fields or aeronautics. In fact, the sole reference to the commission in the Danbury Code of Ordinances is found in § 2-40 and states: “Said commission shall have all of the powers and duties established by the statutes of the State of Connecticut and special acts of the State of Connecticut and the ordinances of the Town and City of Danbury pertaining to airports and airport commissions.” Neither General Statutes § 15-80, Special Act No. 381, nor the Danbury Code of Ordinances provides for an appeal from the rulings of the commission.

In furtherance of its special act mandate, the Dan-bury Aviation Commission adopted a comprehensive set of “Rules and Regulations for the Use of Danbury Municipal Airport.” These rules and regulations require written permission before commencement of “any construction on City property or on adjacent property.” (Emphasis added.) Rules and Regulations for the Use of Danbury Municipal Airport § 7.6. Further, all permittees (which includes FBOs) are to “abide by all rules and regulations promulgated by the Commissions or the [Federal Aviation Administration] necessary for the safe operation of the Airport including, but not limited to, flight and ground operations on, or in the vicinity of, the Airport.” (Emphasis added.) Id., § 7.10. The commission, therefore, undertakes to regulate and control not only operations within the airport boundaries, but also operations adjacent to city property and within the vicinity of the airport.

Thus, we are confronted with the anomalous situation that separate legislative enactments empower both the commissioner of transportation and the Danbury Aviation Commission to exercise parallel and overlapping authority in connection with aeronautical activities within the Danbury area. Since the legislature, through its enabling statutes, has charged the commissioner of transportation with the supervision and control of virtually every aspect of aeronautical activity conducted within the state, including that carried out at a municipal level, we conclude that such supervision and control is principally a state function and duty. See Murphy v. Berlin Board of Education, 167 Conn. 368, 372, 355 A.2d 265 (1974). Since Special Act No. 381 empowered the commission to exercise nearly identical supervisory powers and duties within the Danbury environs, we conclude that to the extent that these powers and duties are congruent, in those areas that do overlap, the local commission’s activities could only be carried out as an agent of the commissioner of transportation. As an agent, the commission, therefore, is not, in and of itself, a “state . . . commission” within the meaning of § 4-166 (1) and, therefore, its decisions do not, per se, qualify for appellate review under the UAPA.

The acts of an agent, however, are ascribable or chargeable to the principal. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1,13, 420 A.2d 1142 (1979); West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 395, 389 A.2d 741 (1978). Therefore, to the extent that the commission was in fact acting as an agent, its decisions made while acting in such a capacity would be chargeable to its principal, the commissioner of transportation, a person who is clearly a “state. . . officer” within the meaning of § 4-166 (1) and from whose decisions an appeal unquestionably lies under the UAPA. See General Statutes § 4-166 (1).

“Although the finding of an agency relationship is ordinarily a question of fact; Beckenstein v. Potter & Carrier, Inc., [191 Conn. 120,133, 464 A.2d 6 (1983)]; Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, 374 A.2d 144 (1976) . . . unless the statutory scheme permits a finding of an agency relationship, there is no factual question to resolve.” Gordon v. Bridgeport Housing Authority, 208 Conn. 161,184-85, 544 A.2d 1185 (1988).

Such a statutory scheme being evident here, the issue of whether an agency relationship actually exists becomes a question of fact. This relationship must be shown to exist with respect to the precise issue that is the subject matter of the appeal. Murphy v. Berlin Board of Education, supra, 373.

' The complaint alleges that the commission revoked ConnAir’s permits “for the alleged nonpayment of certain fees and charges”; that the commission’s actions were based in part upon the “alleged failure to permit certain inspections of its property for safety purposes”; and that its decision was based in part “on charges which were not specified in the notice of the hearing.” If an evidentiary hearing discloses that the factual basis of the commission’s decision involved aeronautical activities in which the commission was acting as an agent for the commissioner of transportation (such as the use of unsafe airplanes or unqualified pilots), then such a decision could well be appealable under the UAPA. If, however, despite the existence of an agency relationship in certain other areas, the subject matter of the dismissal involved solely a local matter (such as the nonpayment of locally determined charges or fees), then the required agency relationship as to that subject would not exist and access to the appellate process via the UAPA would not be available. Absent a finding as to the factual basis for the commission’s decision, however, we cannot make a determination as to the existence or nonexistence of an agency relationship between the commission and the commissioner of transportation.

II

The commission further contends that even if it is an “agency” within the meaning of § 4-166 (1), ConnAir has no right to appeal under General Statutes § 4-183 (a), which provides, in pertinent part, that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . . ” In the present case, the commission argues that the proceedings below did not constitute a “contested case.” “Contested case” is defined in § 4-166 (2) as “a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . . ” According to the commission, the proceedings below did not constitute a contested case because no legal rights were determined and no statutory right to a hearing existed. We do not agree.

A legal right was determined in the proceedings below as ConnAir’s complaint alleges that its permits, until revoked, authorized it to conduct its business and carry out a livelihood on airport premises. A determination with respect to one’s right to earn one’s occupation or means of livelihood constitutes a determination with respect to a “property right”; see Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 295, 554 A.2d 1065 (1989), citing Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Pet v. Department of Health Services, 207 Conn. 346, 353-54, 542 A.2d 672 (1988); Leib v. Board of Examiners for Nursing, 177 Conn. 78, 83, 411 A.2d 42 (1979); Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 45, 327 A.2d 588 (1973); and, therefore, involves a legal right. Moreover, to the extent that an agency relationship is found to exist between the commission and the commissioner, the proceeding that was held below would qualify as a hearing required under § 4-166 (2).

Accordingly, if, on remand, an agency relationship is found to exist between the commissioner and the commission, a hearing involving the determination of a legal right will be deemed to have taken place thereby making the proceeding below a “contested case” within the meaning of § 4-166 (2). As a contested case, it will qualify for appellate review under § 4-183 (a) of the UAPA.

There is error, the judgment is set aside and the matter is remanded for further proceedings in accordance with this opinion.

In this opinion, Peters, C. J., Callahan and Glass, Js., concurred.

Shea, J.,

dissenting. In construing the definition of “agency” in General Statutes § 4-166 to include municipal commissions to the extent that they perform state functions, the majority follows Murphy v. Berlin Board of Education, 167 Conn. 368, 355 A.2d 265 (1974), in which this court held that a town board of education was a “state board” and thus an “agency” within the meaning of § 4-166 from which an appeal was authorized in a contested case. The court reasoned that the local board was a “state board” because it had long been held that in Connecticut, except for budgetary-matters, local boards of education serve as agents of the state in their communities. Id., 372-73.

In response to Murphy, the legislature, in 1975, amended the definition of “agency” in § 4-166 by the enactment of Public Acts 1975, No. 75-529, to exclude local boards of education specifically. This court in Lee v. Board of Education, 181 Conn. 69, 75-76, 434 A.2d 333 (1980), concluded that the amendment was a “legislative declaration of the meaning of the original act,” citing as one reason for this conclusion the fact that “it was not readily apparent that local or regional boards of education would constitute state boards or agencies under the UAPA as originally enacted.” I view Lee as a rejection of the position adopted in Murphy that a local board or commission becomes a state agency for the purpose of an appeal under the UAPA whenever it performs a state function.

There are other local agencies, in addition to local boards of education and local aviation commissions, where there is some overlap of regulation or function between the municipality and the state. For example, local traffic authorities in erecting signs or signals on local streets are required to comply with state traffic commission standards. General Statutes § 14-236. Local building officials enforce the state building, fire and demolition codes. General Statutes §§ 29-252 (d), 29-298 (c), 29-404. In many of these situations statutes expressly provide for rights of appeal apart from the UAPA. If we adopt the view that a local agency becomes a state agency when performing a state function, these separate appeal provisions become superfluous.

It may well be desirable for there to be a right of appeal from a decision of any municipal agency, similar to the right provided by the UAPA to appeal from decisions of state agencies in contested cases. Since the right of appeal has always been regarded as wholly statutory, however, I am inclined to let the legislature continue to pick and choose those situations in which it is to be made available.

Accordingly, I would affirm the trial court’s dismissal of the appeal.

Appendix

General Statutes § 15-52 provides in part: “No person whose right to operate any aircraft in this state has been suspended or revoked shall operate any aircraft during the period of such suspension or revocation. No person shall operate or cause to be operated any aircraft of which the right to operate has been suspended or revoked.”

General Statutes § 15-54 provides: “The commissioner is authorized to revoke or suspend temporarily or permanently the right to operate aircraft, when he determines that any aircraft is not airworthy, or that any airman is not qualified, has wilfully violated the provisions of this chapter or the regulations prescribed pursuant thereto or any other statute of this state relating to aeronautics, or any Act of Congress relating to aeronautics, or any rule or regulation promulgated pursuant thereto, or the statutes or rules or regulations of another state relating to aeronautics, is addicted to the use of narcotics or any other habit-forming drug or to the excessive use of intoxicating liquor, has made any false statement in any application for registration of a federal license certificate or permit or has been guilty of other conduct, acts or practices dangerous to the public safety and the safety of those engaged in aeronautics.”

General Statutes § 15-66 provides in part: “To carry out the provisions of this chapter, the commissioner and any official or employee of the department and any state or municipal officer charged with the duty of enforcing this chapter may inspect and examine at reasonable hours any premises and the buildings and other structures thereon where airports, restricted landing areas, heliports, air schools, flying clubs or other air navigation facilities or aeronautical activities are operated or carried on.”

General Statutes § 15-68a provides: “Any person who operates or uses, or causes to be operated or used, or tampers or interferes in any way with any aircraft without the consent of the owner, or who obtains the consent of the owner to the use of his aircraft by false and fraudulent means, statements or representations, shall be fined not more than one thousand dollars or imprisoned not more than one year or both for a first violation, for a second violation shall be imprisoned not more than ten years and for each subsequent violation shall be imprisoned not more than fifteen years.”

General Statutes § 15-69 provides: “Any person who interferes or tampers with any airport, heliport, landing field or airway or the equipment thereof shall be fined not less than two hundred dollars nor more than one thousand dollars or imprisoned not more than five years or be both fined and imprisoned.”

General Statutes § 15-71a provides in part: “Any pilot, whether resident or nonresident, of a civil aircraft involved in an accident resulting in personal injury or substantial damage to the aircraft shall immediately notify the commissioner or the state police. If the pilot or pilots are incapacitated, any person who caused or authorized the operation of such aircraft at the time of the accident shall be responsible for giving such notification. . . . The commissioner may make an investigation of such accidents as he deems advisable or in lieu of a detailed investigation may accept a copy of the final report by a federal investigation agency.”

General Statutes § 15-72 provides: “No person shall operate any aircraft carelessly, negligently or recklessly, or in such a manner as to endanger the property, life or limb of any person, having regard to the proximity of other aircraft, weather conditions, field conditions and, while in flight, the territory flown over.”

General Statutes § 15-73 provides in part: “Where necessary in order to provide unobstructed air space for the landing and taking-off of aircraft, in case of airports, heliports and restricted landing areas acquired or operated by the state, the commissioner ... is granted authority to acquire, in the same manner as is provided for the acquisition of property for airport purposes, easements through or other interests in airspace over land or water, interests in airport hazards outside the boundaries of the airports, heliports or restricted landing areas, and such other airport protection privileges as are necessary to insure safe approaches to the landing areas of such airports, heliports and restricted landing areas and the safe and efficient operation thereof.”

General Statutes § 15-74 (a) provides: “The commissioner shall notify the owner or person responsible for the existence of any obstacle so located as to constitute a hazard to aerial navigation or to the efficient or safe use of any airport, requiring such owner or other person to remove such obstacle within such reasonable time as is fixed by said commissioner. The owner or owners of such airport shall pay to the owner of such obstacle just compensation for such removal.”

General Statutes § 15-74b (b) provides: “(1) Immediately upon July 6, 1971, the commissioner of transportation shall establish clear zones, in accordance with regulations adopted by him, for all public airport runways, and shall establish a list of priorities for the abatement or correction of encroachments thereon by public service companies. (2) Subject to the availability of funds, said commissioner shall from time to time order the relocation, removal or such other appropriate corrective action as he deems necessary to abate or correct such encroachments on clear zones.”

General Statutes § 15-76 (a) provides in part: “The commissioner, any employee of the department, any officer attached to an organized police department, any state police officer, any sheriff or any constable, within his precinct, upon discovery of any aircraft apparently abandoned, whether situated within ór without any airport or landing field in this state, shall take such aircraft into his custody and may cause the same to be taken to and stored in a suitable place.”

General Statutes § 15-77 provides in part: “No person shall operate or attempt to operate any aircraft on the ground or in the air while under the influence of intoxicating liquor or of any drug. No person shall operate or attempt to operate any aircraft on the ground or in the air carrying passengers who are under the influence of intoxicating liquor or of any drug.”

General Statutes § 15-90 provides in part: “The commissioner is directed to formulate and adopt, and from time to time as may be necessary revise, an airport approach plan for each publicly-owned airport in the state. Each such plan shall indicate the circumstances in which structures or trees or both are or would be airport hazards, the area within which measures for the protection of the airport’s aerial approaches should be taken and what the height limits and other objectives of such measures should be.”

       General Statutes § 4-166 (1) provides in relevant part: “ ‘Agency’ means each state board, commission, department or officer ... authorized by law to make regulations or to determine contested eases.”

       General Statutes § 4-183 provides in part: “APPEAL TO SUPERIOR COURT, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . .”

       General Statutes § 15-41 provides: “The commissioner may perform such acts, issue and amend such orders, and make and amend such reasonable general or special regulations and procedure and establish such minimum standards, consistent with the provisions of this chapter, as he deems necessary or appropriate, and which are commensurate with and for the purpose of protecting and insuring the general public interest and safety, the safety of persons receiving instruction concerning, or operating, using or traveling in, aircraft, and of persons and property on land or water, and to develop and promote aeronautics in this state. No regulation of the commissioner shall apply to airports or other air navigation facilities owned by the federal government within this state.”

       General Statutes § 15-44 provides: “The commissioner and aeronautics inspectors of the department, and each state, county and municipal officer charged with the enforcement of state and municipal laws shall enforce and assist in the enforcement of this chapter and of all regulations made pursuant thereto, and of all other laws of this state relating to aeronautics.”

       General Statutes § 15-45 provides: “The commissioner may hold investigations, inquiries and hearings concerning matters covered by the provisions of this chapter, aircraft accidents or orders and regulations of the commissioner.”

       See appendix for relevant General Statutes.

       Special Act No. 381 of the January session of the 1947 General Assembly provides: “Section 1. The aviation commission of the town of Danbury shall have power: (1) To negotiate leases of land, facilities and buildings owned by the town of Danbury and used for airport purposes, and, upon the completion of such negotiations, to make recommendations as to the terms of such leases to the selectmen of said town; (2) to examine the qualifications of applicants for the position of airport manager and other personnel deemed necessary for the operation and maintenance of the town’s airports and to make recommendations to the board of selectmen of said town for the hiring of such manager or other personnel; (3) to make and enforce local rules, regulations and ordinances concerning ground and flying activities on or over town property at airports, and to provide for compliance with the enforcement of federal and state laws, rules and regulations relating to aeronautics; (4) to plan the present and future development of airports within and for the town of Danbury and to negotiate with state and federal authorities regarding such development; and (5) to issue permits for flying and other aeronautical activities in connection with the use of the Danbury Airport and to fix the fees for such permits, which fees shall be paid to the selectmen of the town of Danbury, and shall be deposited into the town’s general fund.
      “Sec. 2. No airport manager or other personnel shall be removed after appointment except with the approval of said commission.
      “Sec. 3. The commission shall, annually, prepare a budget for submission to the town board of finance with respect to all items involving expenditures at airports and for other aeronautical purposes within and for the town of Danbury.”

       General Statutes § 15-80 provides in part: “(a) Any town . . . may, at any annual or special meeting . . . vote to establish an aviation commission ....
      “(b) Such aviation commission shall be charged with the administration of such local ordinances as may, from time to time, be enacted, concerning airports, landing fields and aeronautics.”

       We are not confronted here with the circumstance wherein the General Assembly has articulated certain principles and policies and then delegated their implementation to local officials and agencies making it clear that their enforcement has been made a local function and duty. See, e.g., General Statutes § 7-148 et seq., “Municipal Powers”; § 8-1 et seq., “Zoning”; § 14-236, “Multiple-lane highways”; § 29-252, “State building code”; § 29-298, “Certification of local fire marshals”; § 29-404, “Local building official to administer state demolition code”; § 47a-l et seq., “Rights and Responsibilities of Landlord and Tenant.”

       Public Acts 1975, No. 75-529, added, “town and regional boards of education” to the preexisting exclusions from the definition of “agency” in General Statutes § 4-166 (1), “the legislature, courts, governor, lieutenant governor or attorney general.”


source: Caselaw Access Project

license: Public Domain

text:
    In re Jennifer P.

      Diane W. Whitney, assistant attorney general, in support of the petition.

      Jeffrey D. Ginzberg, in opposition.
    Decided March 8, 1989
   The petitioner’s, Amy B. Wheaton, commissioner of the department of children and youth services, petition for certification for appeal from the Appellate Court, 17 Conn. App. 427, is denied.


text:
    Zenia Adamus v. Stefan Adamus

      Henry D. Marcus, in support of the petition.
    Decided March 22, 1989
   The defendant’s petition for certification for appeal from the Appellate Court is granted, limited to the following issue:

“Is an order granting exclusive possession of a family home pendente lite, pursuant to section 46b-83, a final judgment for purposes of appeal?”


text:
    William Foley v. City of New Britain et al.

      Harold J. Geragosian, in support of the petition.

      Jason M. Dodge, in opposition.
    Decided March 29, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 834, is dismissed.


text:
    Robert Gavin v. City of New Britain et al.

      Harold J. Geragosian, in support of the petition.

      Joseph E. Shelly, Jr., in opposition.
    Decided March 29, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 17 Conn. App. 834, is denied.


text:
    State of Connecticut v. John Crotty

      Hugh F. Keefe and Michael J. McClary, in support of the petition.
    Decided April 13, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 395, is denied.


text:
    State of Connecticut v. Anthony Rish

      John R. Williams, in support of the petition.

      Mitchell S. Brody, in opposition.
    Decided April 13, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 447, is denied.


text:
    State of Connecticut v. Franklin Briggs

      John T. Walhley, special public defender, in support of the petition.

      RitaM. Shair, deputy assistant state’s attorney, in opposition.
    Decided April 13, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 648, is denied.


text:
    Michael Gedeon v. First National Supermarkets, Inc.

      Peter Schwartz, in support of the petition.

      Sydney T. Schulman, in opposition.
    Decided March 22, 1989
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Willie E. Thompson

      John S. Pinney, in support of the petition.

      Mary H. Lesser, in opposition.
    Decided March 22, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 490, is denied.


text:
    Ronnie Braun v. Herbert R. Edelstein

      James M. S. Ullman, in support of the petition.
    Decided April 20, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 658, is denied.


text:
    State of Connecticut v. Jose Marino

      JohnF. Kavanewsky, Jr., in support of the petition.

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided April 20, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 677, is denied.


text:
    Lauretta Sauerwein v. James Bell et al.

      Stefan R. Underhill, in support of the petition.

      Timothy J. Hauburger, in opposition.
    Decided April 20, 1989
   The defendants Consolidated Freightways Inc. and Arthur James’ petition for certification for appeal from the Appellate Court, 17 Conn. App. 697, is denied.


text:
    State of Connecticut v. Daisy Hamilton

      Frederick W. Fawcett, assistant state’s attorney, in support of the petition.
    Decided April 26, 1989
   The State of Connecticut’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 385, is granted, limited to the following issues:

“Did the Appellate Court err in concluding that the seizure of the car keys used to unlock the van where the drugs were stored was not inadvertent and thus did not qualify as a plain view seizure?

“When in the course of a search pursuant to a warrant the police discover keys that may be used to unlock a van that is also authorized to be searched under the warrant, may the keys be seized for that purpose?”


text:
    Edward J. Seperack et al. v. Effie Solaz

      Mary Ann Barile, in support of the petition.
    Decided April 26, 1989
   The named plaintiff’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 684, is denied.


text:
    State of Connecticut v. Edward L. Reagan

      M. Hatcher Norris, in support of the petition.

      CarolynK. Longstreth, deputy assistant state’s attorney, in opposition.
    Decided April 26, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 32, is denied.


text:
    Felix Danziger et al. v. Demolition Board of the City of Stamford

      L. Morris Glucksman, in support of the petition.

      Barry J. Boodman, assistant corporation counsel, in opposition.
    Decided May 5, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 40, is denied.


text:
    Hal Eis et al. v. Mary D. Meyer
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 17 Conn. App. 664, is granted, limited to the following issues:

“Did the Appellate Court err in rejecting the finding of the attorney trial referee that the owner of the servient tenement was estopped from claiming a termination of the easement by virtue of her failure to object to the enlargement of the home upon the dominant tenement after she had been informed by its owners of their plans to construct the addition?

“Is there an implied covenant of good faith and fair dealing between the servient and dominant tenement owners in relation to the terms of an easement and, if so, was it breached by the defendant in failing to object seasonably to the construction of the addition which would cause the easement to terminate by its terms?”

Myra L. Graubard, in support of the petition.

Gordon R. Paterson, in opposition.

Decided May 5, 1989


text:
    William H. Foster v. Smithkline Corporation et al.

      Herbert Watstein, in support of the petition.

      Andrew J. O’Keefe and Maureen Sullivan Dinnan, in opposition.
    Decided May 5, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App. 133, is denied.


text:
    John A. Contegni et al. v. C. Meyrick Payne et al.

      Charles A. DeLuea, in support of the petition.

      Leo Gold, in opposition.
    Decided May 11, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 47, is denied.


text:
    John A. Contegni et al. v. C. Meyrick Payne et al.

      ■Leo Gold, in support of the petition.

      Charles A. DeLuea, in opposition.
    Decided May 11, 1989
   The defendants’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 47, is denied.


text:
    Donna Young et al. v. David T. Chase et al.

      Stuart Bear, in support of the petition.

      Paul W. Orth, in opposition.
    Decided May 11, 1989
   The defendants’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 85, is denied.


text:
    State of Connecticut v. Thomas Hall

      Mary H. Lesser, deputy assistant state’s attorney, in support of the petition.
    Decided May 11, 1989
   The State of Connecticut’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 502, is granted, limited to the following issues:

“1. Did the Appellate Court err in concluding that the trial court should not have instructed the jury that self-defense was not available as a defense to the lesser included offense of manslaughter in the second degree?

“2. Did the Appellate Court err in concluding that the determination of the jury that self-defense had been disproved beyond a reasonable doubt, implicit in its verdict that the defendant was guilty of manslaughter in the first degree, did not render harmless the failure to charge upon the availability of self-defense for manslaughter in the second degree?

“3. Where the defendant admitted shooting the victim at close range six times, claiming self-defense, did the Appellate Court err in holding that the defendant was entitled to an instruction on criminally negligent homicide as a lesser included offense?”


text:
    Frank Sponzo et al. v. Zoning Board of Appeals of the Town of Bloomfield

      Dan E. LaBelle, in support of the petition.

      Bessye W. Bennett, in opposition.
    Decided May 11, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 814, is dismissed.


text:
    Catherine Buchetto v. Benjamin J. Haggquist

      Stefan R. Underhill, in support of the petition.
    Decided May 18, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 544, is denied.


text:
    State of Connecticut v. Thomas Speers

      Timothy C. Moynahan, in support of the petition.

      John A. Connelly, state’s attorney, and Joan K. Alexander, assistant state’s attorney, in opposition.
    Decided May 18, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 587, is denied.


text:
    State of Connecticut v. William George

      Frederick D. Paoletti, in support of the petition.

      John A. Connelly, state’s attorney, and JoanK. Alexander, assistant state’s attorney, in opposition.
    Decided May 18, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 587, is denied.


text:
    State of Connecticut v. Russell F. Manfredi

      Michael R. Sheldon, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
    Decided May 18, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 602, is granted, limited to the following issue:

“Did the Appellate Court err in sustaining the admission of expert psychiatric testimony elicited by the state in advance of the filing of a notice of intent to rely on a defense of mental disease or defect?”


text:
    Roberta L. Main v. George E. Main

      Katherine Delisle, in support of the petition.

      Shelley M. Weiss, in opposition.
    Decided May 18, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 670, is denied.


author: Glass, J.

text:
    Michael Vespoli v. Pasquale Pagliarulo
    (13621)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued March 28
    decision released July 4, 1989

      Paul M. Geraghty, for the appellant (defendant).

      Michael J. Whalen, with whom, on the brief, was Martin Looney, for the appellee (plaintiff).
   Glass, J.

The plaintiff brought this action against the defendant as guarantor on a lease agreement for damages arising from the lessee’s breach of the lease. The trial court found for the plaintiff and awarded $34,977.23 in damages and $5246.58 in attorney’s fees. On appeal, the defendant claims that the trial court erred in (1) applying an improper standard to determine whether the plaintiff had mitigated damages, and (2) awarding attorney’s fees without any proof of the amount of fees incurred. We find no error.

In 1985, the plaintiff, Michael Vespoli, doing business as Vas Realty, purchased a commercial “strip” shopping center on Orange Street in West Haven. The defendant, Pasquale Pagliarulo, guaranteed the lease obligations of one of the shopping center tenants, LaDifferenze Restaurant, on property which he had previously leased. In May, 1986, LaDifferenze defaulted on its rent obligations. The next month, the plaintiff served a notice to quit upon LaDifferenze, and sent accountings and invoices to the defendant. On June 19, 1986, the plaintiff instituted a summary process action against LaDifferenze. Thereafter, judgment was rendered against LaDifferenze and, on July 31,1986, the plaintiff sent notice of the judgment to LaDifferenze. The plaintiff received no rent from either LaDifferenze or the defendant after commencing the eviction action in June. Equipment belonging to the defendant remained on the property throughout the summer.

The defendant remained on the property until September, 1986, when he finally removed his equipment. Thereafter, the plaintiff expended $5000 on restorations and had the property listed with a real estate broker as available for lease. The property nevertheless remained vacant for the duration of the lease term. The plaintiff brought the present action in December, 1986.

At the trial, the defendant and his partner, Frank Santoro, testified that during the summer of 1986, they presented new potential tenants to the plaintiff and promised to guaranty the lease as before, but that the plaintiff was not interested in their proposals. The plaintiff testified that the conversations never took place. The plaintiff’s counsel represented at trial that he had contacted the defendant and Santoro on three occasions in August and September, 1986, to determine when the defendant would leave the premises. He stated that “[o]n September the fourth I spoke to [San-toro] and told him to get out, that we were no longer interested in listening to potential possibilities.” At the conclusion of the trial, the trial court rendered judgment for the plaintiff and awarded damages, and included an award of attorney’s fees based on 15 percent of the damages for the breach.

Assuming, as do the parties, that in instituting the summary process action against LaDifferenze, the plaintiff manifested an intention to terminate the lease; Sagamore Corporation v. Willcutt, 120 Conn. 315, 318, 180 A.2d 464 (1935); the plaintiff “was entitled to recover those damages which would naturally flow from a total breach of the lease. . . . [He] was also under an obligation, however, to . . . make reasonable efforts to minimize damages. What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier. Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 442, 288 A.2d 415 (1971). Since the general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed; Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 404-405, 365 A.2d 1086 (1976); in assessing the reasonableness of the landlord’s efforts to mitigate damages the trier may consider whether the landlord was justified in refusing to rent the demised premises to a prospective tenant who was otherwise satisfactory and who would have put him in at least as good a position as if the original contract had been fully performed.” Danpar Associates v. Somerville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980).

The defendant’s first claim, that the trial court applied an improper standard to determine whether the plaintiff had mitigated his damages, is without merit. The record shows that defense counsel argued that the plaintiff would have had no duty to mitigate damages if he had not terminated the lease. After he conceded to the trial court that, in terminating the lease, the plaintiff did not lose the right to sue for damages, counsel and the trial court engaged in the following exchange:

“Mr. Geraghty: But the issue now, as far as his duty to mitigate, because he has terminated the leasehold agreement, such as terminating a contract, he now has a duty to mitigate in a contract, since it’s not in a commercial leasehold sense. And I think the burden there, the duty to mitigate there is greater than it would be otherwise.

“The Court: Mr. Whalen?

“Mr. Whalen: I quite frankly, don’t know the difference between the obligation—

“The Court: I’ll tell you. It’s a less—the burden is a lesser burden in a commercial property, to mitigate, than it is on a—[unintelligible]. For instance, if a person—well, never mind. ...”

The defendant asks us to infer from the trial court’s final comment that it applied a standard of mitigation less exacting than the “reasonableness” standard of Danpar Associates. Aside from this single cryptic, partially transcribed, incomplete observation, there is nothing in the record to indicate that the trial court did not consider the plaintiffs reasonableness in mitigating damages in accordance with Danpar Associates. The defendant made no effort, by way of either a subsequent question to the court during trial or a motion for articulation after trial, to determine whether the trial court applied a less exacting standard of “reasonableness.” Further, the evidence fully supports a conclusion that, as Danpar Associates requires, the plaintiff did take reasonable steps to mitigate damages following the lessee’s breach. The defendant’s first claim, therefore, is rejected.

The defendant next claims that the trial court erred in awarding the plaintiff attorney’s fees without receiving any evidence as to the amount of fees actually incurred. The lease agreement provided for attorney’s fees “incurred by the Lessor in the enforcement of the Lessee’s obligations hereunder.” The record discloses that the trial court asked counsel for the plaintiff whether it should award attorney’s fees in the amount of 15 percent of the damages awarded for breach of the lease. Plaintiff’s counsel responded: “That sounds fair, Your Honor.” Immediately thereafter, the court calculated the amount of fees as $5246.58. Counsel for the defendant thereupon asked: “And twenty-eight cents, Your Honor, or fifty-eight cents?” The trial court repeated the amount, and the defendant’s counsel said, “Okay.” The defendant did not object to the amount of attorney’s fees awarded, or take exception to the trial court’s reliance on plaintiffs counsel’s representation that 15 percent of the damages awarded was an appropriate amount for attorney’s fees.

“[A] contract clause providing for reimbursement of ‘incurred’ fees permits recovery [of such fees] upon the presentation of an attorney’s bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by the exercise of the trier’s own expert judgment.” Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982). “[Cjourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984).

In the absence of any objection by the defendant, the trial court’s reliance on the plaintiff’s counsel’s acknowledgement that 15 percent of the damage award was fair satisfied the requirement of an evidentiary basis for the award of attorney’s fees. While it might have been preferable for the plaintiff to have introduced an invoice of fees actually incurred, the defendant acquiesced to the evidentiary basis that the trial court did employ and, therefore, cannot claim error therein.

There is no error.

In this opinion the other justices concurred.


author: Glass, J. Shea, J.,

text:
    State of Connecticut v. Anthony Williamson
    (13510)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued March 2
    decision released July 4, 1989

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellant (state).

      Joette Katz, former public defender, for the appellee (defendant).
   Glass, J.

This case presents us with no less than our sixth occasion since 1981 to consider whether the New Haven police department’s destruction or loss of a witness’ statements requires the striking of the witness’ testimony in an ensuing criminal trial. See State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); see also State v. Sims, 12 Conn. App. 239, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988).

The state accused the defendant, Anthony Williamson, of having robbed the victim, Crystal Gray, at gunpoint. General Statutes § 53a-134 (a) (4).. Before the trial, the New Haven police erased tape recordings of Gray’s initial 911 emergency telephone call to police and her subsequent interview with Detective Whitney Epps. At trial, the defendant moved to strike Gray’s testimony, arguing that the destruction of the tapes violated Practice Book § 752 et seq. and prejudiced his defense. The trial court denied the defendant’s motion. The jury found the defendant guilty as charged, and the trial court sentenced him to fifteen years imprisonment, execution suspended after twelve years, and five years probation. Upon the defendant’s appeal, the Appellate Court determined that the trial court should have stricken Gray’s testimony, and remanded the case for a new trial. State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988).

We granted the state’s petition for certification, limited to the issues: (1) whether the destruction of the tapes so prejudiced the defendant that Gray’s testimony should have been stricken; and (2) whether tape recorded 911 emergency telephone calls must be preserved on the chance they might be discoverable under Practice Book § 752. We now affirm the Appellate Court’s judgment. Because we hold that the state’s non-production of the Epps interview tape required the striking of Gray’s testimony, we do not reach the issues pertaining to the 911 telephone call. See SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 335, 559 A.2d 196 (1929).

The facts are fully set forth in the Appellate Court’s opinion. State v. Williamson, supra. In brief, Gray testified at trial that on December 27,1985, she went to visit a friend at an apartment building on Ashmun Street in New Haven. Her friend was not home. As Gray was leaving the building’s lobby, the defendant, whom she had known for ten years, grabbed her from behind by placing his hands on her neck. He held a handgun behind her ear, took $50 from her pants pocket, and slowly backed away, exiting the building through the rear door. The defendant denied committing the robbery. He testified that he had gone to the Ashmun Street building to socialize with a friend, and encountered Gray there. He claimed that Gray had given him a packet of cocaine and had asked him to meet her at another apartment building for a sexual tryst. When the defendant had walked away with the cocaine, showing no interest in her proposal, Gray had told him that she “knew how to handle the situation,” and thereafter had fabricated the robbery story to avenge her spurned advances.

After the alleged robbery, Gray telephoned the New Haven police department’s 911 emergency number. She testified that she told the person answering, “[CJould you please send a cop to 192 Ashmun Street ... I just got robbed.” The telephone call was tape recorded. Officer Richard Rawling responded to Gray’s call and later filed an incident report based on her statements. Rawling transported Gray to the police station, where Whitney Epps interviewed her. In a rather creative procedure, Epps conducted the interview by tape recording each question he asked Gray, shutting the recorder off while she answered, and then reactivating it to repeat her answers himself. Gray testified at trial that Epps also had made written notes during the taped interview. Epps testified, however, that he had not made handwritten notes during the interview.

After completing the interview, Epps gave the tape recorded statement to a police department stenographer. The stenographer transcribed the recording on paper and then erased the tape. According to Epps, although he knew that department policy recently had changed to require the preservation of such tape recordings, he had neglected to tell the stenographer to save the recording. As a consequence, neither the police nor Gray ever compared the transcript with the original tape recording. Further, the police did not ask her to look at the transcript during the seven months between the incident and the trial. When Gray finally did review the transcript on the first day of trial, she testified that it was accurate.

New Haven police arrested the defendant in February, 1986, and charged him with first degree robbery. In March, 1986, the trial court granted the defendant’s motion to preserve evidence. By that time, however, neither tape could be produced, since the police had also erased the 911 recording approximately thirty-eight days after the alleged robbery, in accordance with police department routine. At trial, the defendant moved under Practice Book § 755 to strike Gray’s testimony because of the destruction of the tapes. The trial court denied the motion, finding that the police had no “intention to thwart justice or to violate any rights of the defendant” in destroying the tapes. The trial court also found that the defendant had not been prejudiced because he had had adequate opportunity to expose inconsistencies between Gray’s trial testimony and other statements she had made during the investigation. The defendant had also used the transcript of the Epps recording to challenge Gray’s testimony.

On the defendant’s appeal, the Appellate Court reversed, reasoning that, because the New Haven police department had intentionally and not inadvertently destroyed the tapes after publication of our decision in State v. Milum, 197 Conn. 602, 616, 500 A.2d 555 (1985), the “destruction exhibited bad faith.” State v. Williamson, supra, 117. The court then held that, because the police had acted in bad faith, “the only relevant question becomes what prejudice, if any, the defendant suffered . . . . ” Id., 117-18. The court also held that, although the defendant ordinarily must establish that he was prejudiced by the nonproduction of discoverable material; see State v. Palmer, 206 Conn. 40, 57, 536 A.2d 936 (1988); the burden of proof on the issue of prejudice shifted to the state because the tapes had been destroyed in bad faith. See United States v. Bufalino, 576 F.2d 446, 449 (2d Cir.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321 (1978). Finding that it was undisputed that Gray’s “version of events varied each time she relayed it,” the court ruled that the defendant’s impeachment of Gray’s testimony with prior statements given in other interviews with the police, as well as with the transcript of the Epps recording, did not render harmless the nonproduction of the two tapes. It therefore concluded that the trial court erred in failing to strike Gray’s testimony. State v. Williamson, supra, 117-18C.

On certification, the state concedes that the defendant had the right to production of the Epps interview tape under Practice Book § 752. It claims, however, that its nonproduction of the tape was harmless. It asserts that the “verbatim” transcript of the Epps recording and other information enabled the defendant to expose “numerous inconsistencies” in Gray’s testimony sufficient to satisfy the impeachment rationale of § 752, but not so great as to undermine the jury’s verdict. Accordingly, in the state’s view the Appellate Court erred in overturning the trial court’s conclusion that the defendant did not suffer such prejudice as to require striking Gray’s testimony. The state also claims that the Appellate Court erred in holding that the tape recording of the 911 emergency phone call should have been preserved for possible discovery under § 752. As an alternative ground for upholding the Appellate Court’s decision, the defendant claims that Practice Book § 755 sanctions should be automatic once bad faith is established, a claim that the Appellate Court rejected. State v. Williamson, supra, 118 n.6.

I

We first address the defendant’s claim that Gray’s testimony should have been stricken automatically because the New Haven police had acted in “bad faith” in erasing her tape recorded statements. The state concedes on certification that its nonproduction of the Epps recording constituted “bad faith.” It claims, however, that the conduct of the New Haven police was not so egregious as to require an automatic § 755 sanction. The state argues that this court instead must balance, the state’s culpability against the defendant’s prejudice. See State v. Shaw, supra, 386. We agree.

Practice Book § 752 provides that, after a state’s witness has testified on direct examination, the trial court must, on the defendant’s motion, “order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which . . . relates to the subject matter about which the witness has testified.” Section 755 provides that, if the state “elects” to not comply with such an order, the trial court must strike the witness’ testimony or, under appropriate circumstances, order a mistrial. The rules contained in these sections have been in effect since October 1, 1976. Because our rules are patterned on the Jencks Act, 18 U.S.C. § 3500, we have in the past looked to federal case law for guidance. State v. Shaw, supra.

It is beyond dispute that the state cannot avoid the discovery provisions of Practice Book § 752 by destroying discoverable material in its possession before the defendant moves for production. United States v. Carrasco, 537 F.2d 372, 377 (9th Cir. 1976). The provisions of §§ 752 and 755, “repeatedly employing the word ‘shall,’ are mandatory.” State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982) (Gonzales I). This court has recognized, however, that not every violation of § 752 requires a § 755 sanction. Sanctions are unnecessary if nonproduction of the statement is harmless. Rosenberg v. United States, 360 U.S. 367, 371, 79 S. Ct. 1231, 3 L. Ed. 2d 1304 (1959); State v. Shaw, supra. “In the absence of bad faith we employ a balancing test to determine whether sanctions should be imposed for the state’s failure to produce the tape. . . . [Under Shaw,] [t]he balancing test weighs the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. State v. Myers, supra, 467, 469; State v. Shaw, [supra, 386].” State v. Santangelo, supra, 587-88; State v. Mullings, supra, 10. “We recognize that this approach gives broad discretion to the trial court. State v. Shaw, supra.” State v. Mullings, supra. The nonproduction of the statement is harmful if it is likely that the nonproduction affected the result of the trial. Cf. State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985) (Gonzales II).

In State v. Mullings, supra, 6, the New Haven police made a transcript of a witness’ tape recorded statement and then destroyed the tape. This conduct occurred after our decision in Myers, but before our decision in Milum. We observed that, in Milum, “we reiterated our disapproval of the destruction of discoverable material even though in that case a transcript had been made from the tape which subsequently was erased.” Id., 9. We ruled, however, that the New Haven police could reasonably have interpreted Myers to permit the erasure of a tape of which a transcript had been made. We concluded that because the New Haven police conduct at issue in Mullings occurred before Milum, the erasure of the tape could not be viewed “as having been done in bad faith.” Id., 9-10; see also State v. Santangelo, supra, 589-90; cf. State v. Vessichio, 197 Conn. 644, 662, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

In the present case, the New Haven police erased the Epps tape in or around late December, 1985, shortly after the release of Milum on November 19,1985. We do not understand the state to argue seriously that the brevity of time between Milum and the conduct at issue here warrants a conclusion that, under Mullings, the New Haven police acted reasonably in erasing the Epps tape. Consequently, the mitigating circumstance recognized in Mullings is not present. Further, it is undisputed that the police deliberately destroyed the Epps tape. The state makes no claim that the police department erased the tape because of physical bungling or the like. Cf. State v. Kelly, supra, 384; State v. Palmer, supra, 58-59; see also United States v. Sommer, 815 F.2d 15, 16 (2d Cir. 1987) (state not culpable where notes of witness’ grand jury testimony lost by court reporter). Further, although there was testimony that the New Haven police had adopted a policy of preserving such tapes just prior to the destruction of the Epps tape, the department’s stenographer apparently had not been apprised of that new policy, or chose to disregard it.

Despite all these considerations, we decline to hold that the conduct of the New Haven police in the present case requires the striking of Gray’s testimony without inquiry into the prejudice resulting to the defendant. “ ‘Suppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly. . . . ’ State v. Festo, [181 Conn. 254, 265, 435 A.2d 38 (1980)].” State v. Perez, 181 Conn. 299, 310, 435 A.2d 334 (1980). Our analysis in Mullings arguably suggests that the deliberate destruction of a discoverable tape recorded statement after Milum necessarily constitutes “bad faith.” We are not persuaded, however, that a finding of “bad faith,” as that term is meant in this context, is appropriate absent an evaluation of the particular conduct and intentions of the state agents involved. As we observed in State v. Santangelo, supra, 587, “[although . . . the destruction of the [taped statement] may have been inexcusable, there is no allegation that it was destroyed maliciously or in bad faith to thwart the defense.” (Emphasis added.) We immediately noted thereafter that, “[i]n the absence of bad faith we employ [the Shaw] balancing test . ...” Id. In the context of a § 752 violation,. therefore, the term “bad faith” connotes a deliberate act done with intent to deprive the defense of information. State v. Santangelo, supra; see also United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971) (recognizing that “intentional non-preservation” and “bad faith” are not synonomous).

In the present case, the trial court found that the New Haven police had not acted with the intent to thwart the defendant’s defense. The Appellate Court did not impugn this finding. Further, the defendant has not claimed that the police destroyed the tapes with an intent to deprive him of information. In view of the trial court’s unchallenged finding, we cannot conclude that the conduct of the New Haven police, although demonstrating a disturbing indifference to the rule of law, was such as to require an automatic sanction.

II

Because the state’s conduct in this case did not constitute “bad faith” as contemplated by State v. Santangelo, supra, we must weigh the state’s culpability against any prejudice resulting to the defendant to determine whether the trial court abused its discretion in not striking Gray’s testimony. State v. Shaw, supra; State v. Santangelo, supra; see 2 C. Wright, Federal Practice and Procedure: Criminal (2d Ed.) § 439, p. 613 (under Jencks Act question of sanctions cannot be considered without regard to prejudice arising from nonproduction).

According to the state, the nonproduction of the Epps tape was harmless because the defendant had, and made use of, the “verbatim” transcript of the tape and other evidence to impeach Gray’s testimony. It concedes that because the police deliberately destroyed the tape, the state must show that the defendant was not prejudiced. It asserts, however, that the appropriate standard is whether it is more likely than not that the nonproduction was harmless. See United States v. Wallace, 848 F.2d 1464, 1471 (9th Cir. 1988). The defendant claims, however, that if a per se sanction is inappropriate, then the state should be required to show harmlessness beyond a reasonable doubt. The claims raised by the parties therefore require our determination: (A) whether the conduct of the New Haven police shifted to the state the burden of showing harmlessness; (B) if so, whether the state must show harmlessness beyond a reasonable doubt or by a lesser standard; and (C) whether the state has met the applicable standard in the present case.

A

In addressing claims that the trial court should have stricken testimony under Practice Book § 755, we have often observed that “ ‘[sjince access to the statements of witnesses for the prosecuting authority is not a constitutional right; United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969) . . . State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442 (1962); the burden of showing prejudice rests on the defense. . . .’ (Citations omitted.) State v. Myers, [supra, 469 n.7]; see [Gonzales I, supra, 436 n.8]; State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980).” State v. Milum, supra, 616; see also State v. Mullings, supra, 8; State v. Vessichio, supra, 661-62; Gonzales II, supra, 119. In several of the decisions in which we stated this rule, the police had acted deliberately in destroying the discoverable material. See, e.g., State v. Santangelo, supra, 587, 589; State v. Mullings, supra, 6; State v. Vessichio, supra, 661; State v. Milum, supra, 616-17; State v. Myers, supra, 466. As noted above, however, the state has conceded that the Appellate Court was correct in holding that, because the New Haven police department deliberately destroyed the Epps tape, the state should be required to show that the nonproduction of the tape was harmless.

In light of the state’s concession, we have no reason to disturb the Appellate Court’s conclusion. The Appellate Court supported its position by reference to United States v. Bufalino, supra, 449. See State v. Williamson, supra, 118-18A. The court in Bufalino held that “[wjhere, as here, the destruction is deliberate, sanctions will normally follow . . . unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant.” United States v. Bufalino, supra. Second Circuit Court of Appeals decisions following Bufalino indicate that if the state is only “negligent” in the loss or destruction of discoverable material, the defendant bears the burden of showing prejudice. See United States v. Sommer, supra, 17; see also State v. Brown, 528 A.2d 1098, 1102 (R.I. 1987) (under Jencks type rule, if violation inadvertent, defense bears burden of proving prejudice). We have in the past found Jencks Act decisions of the Court of Appeals for the Second Circuit compatible with our evaluation of issues under Practice Book § 752 et seq. See United States v. Bufalino, supra; United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976); see, e.g., State v. Shaw, supra, 386 (adopting balancing test from United States v. Miranda, supra, 1324); State v. Myers, supra, 468 (relying on Bufalino); State v. Vessichio, supra, 661 (relying on Bufalino and Miranda). We therefore conclude, as did the Appellate Court, that the state in the present case properly bears the burden of establishing harmlessness.

B

The Appellate Court stated that the state must meet a “heavy” burden to show that nonproduction of material discoverable under Practice Book § 752 was harmless. State v. Williamson, supra, 118A, quoting United States v. Bufalino, supra. The court did not precisely define this burden. We have indicated that the proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule. Gonzales II, supra, 119; see also United States v. Sommer, supra, 117 (issue is whether nonproduction undermines confidence in the outcome). We have not, however, defined with particularity the appropriate standard applicable to that inquiry. The question before us, therefore, is whether a violation of § 752 may be found harmless if the state can show that it is more probable than not that the defendant was not prejudiced; see United States v. Wallace, supra; United States v. Carrasco, supra; or whether the state should be required to show that the nonproduction was harmless beyond a reasonable doubt.

In Goldberg v. United States, 425 U.S. 94, 111 n.21, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976), the United States Supreme Court ruled that “[sjince courts cannot ‘speculate whether [Jencks material] could have been utilized effectively’ at trial . . . the harmless-error doctrine must be strictly applied in Jencks Act cases.” See Clancy v. United States, 365 U.S. 312, 316, 81 S. Ct. 645, 5 L. Ed. 2d 574 (1961); Gonzales I, supra, 435; see also United States v. Peters, 625 F.2d 366, 371 (10th Cir. 1980); United States v. Knowles, 594 F.2d 753, 755 (9th Cir. 1979); United States v. Butts, 535 F. Sup. 608, 613 (E.D. Pa. 1982); United States v. Reyes, 510 F. Sup. 150, 153 (D. Ariz. 1981) (purporting to apply strict harmless error analysis). In the wake of Goldberg, however, the federal courts have not settled on an appropriate harmless error standard. See United States v. Wallace, supra, 1471 (standard not clear); Lovern v. United States, 689 F. Sup. 569, 578 (E.D. Va. 1988) (proper test not easily discerned); compare Krilich v. United States, 502 F.2d 680, 682 (7th Cir. 1974), cert. denied, 420 U.S. 992, 95 S. Ct. 1429, 43 L. Ed. 2d 673 (1975) (to extent Jencks violation impairs defendant’s ability to cross-examine, violation must be harmless beyond reasonable doubt), with Lovern v. United States, supra, 578-79 (test is whether it is perfectly clear there was no prejudice), and United States v. Wallace, supra (conviction affirmed if it is more likely than not that Jencks error harmless).

In general, because a Jencks violation is not of constitutional dimension; see United States v. Augenblick, supra, 356; Palermo v. United States, 360 U.S. 343, 345, 79 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959); State v. Myers, supra, 469 n.7; the government is not required to establish harmlessness beyond a reasonable doubt. See United States v. Wallace, supra; United States v. Carrasco, supra; 2 C. Wright, supra, § 439, p. 615. This principle, however, is not absolute. As the court observed in United States v. Augenblick, supra, 356, “[i]t may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right.” See also Palermo v. United States, supra, 362-63 (Brennan, J., concurring) (“it would be idle to say that the commands of the Constitution were not close to the surface of [Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007,1 L. Ed. 2d 1103 (1957) (decision precipitating enactment of Jencks Act)]”). Thus, “the failure to provide material to which the defendant is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation.” Krilich v. United States, supra, 682; United States v. Cleveland, 507 F.2d 731, 740-41 (7th Cir. 1974) (nonproduction must be harmless beyond reasonable doubt); cf. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (prosecution constitutionally required to produce for defense exculpatory evidence material to guilt).

In United States v. Wallace, supra, 1471, the Court of Appeals for the Ninth Circuit addressed the difficulties engendered by the nonproduction of material that is not available for trial or appellate court perusal. Noting that the denial of a Jencks statement might also be a denial of sixth amendment rights, the court stated that “[w]here, as here, the appellant’s conviction rests heavily on the credibility of a single accomplice . . . the unproduced Jencks material may well implicate confrontation clause or compulsory process issues.” The court thereafter remanded the case to the District Court. It held that, if the government did not produce the material, a reversal of the conviction may be warranted. “Any statements in [the material] that might have impeached [the witness’] testimony might also have tipped the balance of persuasion in favor of [the defendants].” Id., 1472.

We have also recognized the distinct problems raised by the unavailability of discoverable statements. In Gonzales I, supra, 435, we held that, under Practice Book § 753, it was error for the trial court to refuse to inspect in camera an allegedly discoverable statement. We stated that “[ujntil the . . . statement is inspected by the [trial] court, the state’s final argument [that the error was harmless] must . . . fail. Whether the defendant was prejudiced by not having access to the whole . . . statement cannot be determined by speculation about what that statement contains. Nor may we speculate as to whether the jury would have convicted the defendant had the . . . testimony been stricken if the state had elected to refuse to produce the statement.”

That harmless error analysis should be “strictly applied” because the courts cannot realistically speculate on the defendant’s possible use of unproduced material is especially compelling in the present case. Goldberg v. United States, supra; United States v. Wallace, supra; Gonzales I, supra. The New Haven police, acting as the state’s agents, deliberately destroyed discoverable material after our repeated admonitions that such material must be preserved. In destroying this material, the state has precluded the courts as well as the defendant from assessing its significance. Cf. Gonzales I, supra (without statement, this court cannot determine whether there has been harmless error). This is not a case in which either the trial court or a reviewing court has access to the unproduced material. Cf. Rosenberg v. United States, supra, 371. Further, Gray did not review the transcript of the Epps tape until the first day of trial, some seven months after she had made the statement. Thus, this is not a case in which the declarant read and adopted a counterpart transcript within a short time after making the statement. Cf. State v. Santangelo, supra, 589-90 (witness reviewed and signed transcript five days after making taped statement). Moreover, the defendant’s conviction obviously rested on Gray’s testimony. United States v. Wallace, supra, 1471-72. Under the facts of the present case, therefore, we would not be unwarranted in “strictly applying” the harmless error doctrine to require the state to prove harmlessness beyond a reasonable doubt. Goldberg v. United States, supra; United States v. Wallace, supra.

C

Despite these serious concerns, however, we need not decide whether the state must prove harmlessness beyond a reasonable doubt under the circumstances present here. We are persuaded that the state has not demonstrated that it is more probable than not that nonproduction of the Epps tape was harmless. In applying the balancing test set forth in State v. Shaw, supra, we are again guided by the direction of the federal courts of the Second Circuit: “[T]he better course to follow is for the Court to make a ‘case-by-case assessment of the [state’s] culpability for the loss, together with a realistic appraisal of its significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the [state’s] untainted proof.’ [United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980)]; see also United States v. Bufalino, [supra]; United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir. 1976); United States v. Miranda, [supra, 1327-28].” United States v. Konefal, 566 F. Sup. 698, 704 (N.D.N.Y. 1983); cf. State v. Santangelo, supra, 588 (when burden is on defendant, he must show “realistic possibility of prejudice”).

We have already discussed the state’s culpability at length. Turning to the question of prejudice, the record discloses several critical inconsistencies between Gray’s trial testimony and prior statements, and between the prior statements themselves. Gray testified at trial that the defendant grabbed her by the neck from behind. According to the transcript of the Epps recording, however, she told Epps that the defendant had grabbed her by the coat from behind. She told Rawling, the first officer to interview her, that the defendant had walked up to her and had asked her for money without first touching her. Gray also testified at trial that the defendant exited the apartment building by slowly walking backward through the rear door, and then ran across a field toward Canal Street. She told Rawling, however, that the defendant had run out the front door and down Ashmun Street. She also told Epps that the defendant had walked ahead of her when leaving the building. She testified, however, that she did not recall telling this to Epps.

Further, Gray testified that the defendant replaced the handgun in his gym bag as he walked backward toward the door. According to the transcript of the Epps tape, however, Gray told Epps that the defendant had put the gun in the gym bag before he walked away. At trial, she stated that she could not remember what she had told Epps regarding what the defendant had done with the gun after the robbery. In addition, the defendant used the Epps tape transcript to establish that Gray had told Epps that the defendant appeared to be under the influence of narcotics. Rawling, however, testified that Gray did not make any statement to him about whether the defendant appeared under the influence. Moreover, at trial, she testified that she saw the defendant after the incident when she had returned home and had stood on the porch. According to the Epps transcript, however, she told Epps that, while walking home after the incident, she glanced over her shoulder and saw the defendant running toward Canal Street. She also testified that she did not remember telling Epps that she saw the defendant running toward Canal Street. The record further demonstrates several inconsistencies between Gray’s testimony and a statement she had given Officer David Taft pertaining to a subsequent encounter with the defendant.

This is certainly not a case in which “[tjhere is absolutely nothing in the record from which we can infer that the tape recorded statement might have contained any inconsistency.” State v. Myers, supra, 469; State v. Palmer, supra, 59; State v. Mullings, supra, 10-11. As Gray’s testimony demonstrates, there were several critical statements in the Epps transcript and Rawl-ing’s report that she did not recall making, or that she denied making. Further, we also find significant the fact that Gray did not review the transcript of the Epps tape until several months after the alleged robbery. See State v. Santangelo, supra, 589 (typed transcript signed five days after taped statement); State v. Milum, supra, 617-18 (typewritten copy reviewed and signed by witness shortly after taped statement). Further, the state has not challenged the Appellate Court’s inference that the Epps tape “was the longest and presumably the most thorough description of the incident given outside the courtroom . . . . ” State v. Williamson, supra, 118C; cf. State v. Santangelo, supra, 588 (reasonable to infer that brief, routine telephone call reporting missing person contained no significant details).

We have recognized that the availability of other impeachment sources, as well as the opportunity for full cross-examination of the witness, are factors to be considered in determining whether the defendant has been prejudiced. State v. Palmer, supra, 60 (full cross-examination); State v. Myers, supra, 469 (numerous other sources of impeachment utilized); State v. Shaw, supra, 386-87 (second statement substantially same as lost statement; full opportunity to cross-examine witness; officer testifying on contents of witness’ lost statement). We have not even remotely suggested, however, that those factors are determinative. Indeed, as the defendant argues, a conclusion that the defendant has not been prejudiced solely because defense counsel utilized other impeachment sources and was given wide latitude in cross-examination would penalize defendants for the best representation their counsel could provide with the available information.

The state has also suggested that we have not explained in our prior decisions why production of an audio tape is preferable to a “verbatim” transcript. See State v. Mullings, supra. The state argues that the only possible value of an audio tape is that it imparts to the listener the sound of the witness’ voice. It claims that because it was Epps’ voice and not Gray’s on the tape recording, there is no good reason to prefer the tape to the transcript. The question, however, is not what we “prefer” but what the provisions of the Practice Book mandate. Gonzales I, supra, 432. The state has not claimed on certification that the Epps recording was not subject to discovery under § 752. Consequently, no explanation for our “preference” is necessary. Even if an explanation were necessary, however, we have already indicated the difficulties attendant to a trial or appellate court’s speculation on the contents of nonexistent discoverable material. See United States v. Wallace, supra; Gonzales I, supra. We also note that the state inadvertently demonstrates the significance of original statements by stating at one point in its brief that Gray “never waivered on her claim that the defendant asked her for money, then pulled a knife from his gym bag . . . . ” (Emphasis added.) If the state could overlook this typographical error before filing its brief, we find it peculiar for it to insist that the New Haven police department’s stenographer prepared a “verbatim” copy of the Epps recording. A “preference” for the original tape recording eliminates the need for speculation.

We therefore conclude that, upon the present record, the state has not demonstrated that it is unlikely that the nonproduction of the Epps tape recording did not affect the result of the case. In reaching its conclusion that the defendant had not been prejudiced, the trial court observed that “[t]he ultimate decision here is with respect to the jury and it was amply pointed out by counsel . . . and in the evidence that the tape had been destroyed .... [I]t’s up to the jury to decide whether they’ll believe the witness or not. And all of these other tapes and other things are simply ancillary to the defendant being able to pinpoint other discrepencies. And in my judgment, this has been done adequately . . . .” We have no quarrel with the principle that it is best to leave the question of a witness’ credibility to the trier of fact. As the trial court’s statements make clear, however, the jury’s exposure to the fact that the Epps tape had existed but had been destroyed was critical to its conclusion that the defendant had suffered no prejudice. That the jury may have been aware that the tape had been erased, however, is irrelevant to the question whether the defendant has been prejudiced. The jury’s speculation on the contents of the unproduced material is not entitled to any weight. We therefore affirm the Appellate Court’s implicit conclusion that the trial court abused its discretion in failing to strike Gray’s testimony. State v. Santangelo, supra.

Ill

The state has not argued or suggested that, if we reversed the Appellate Court’s judgment only on the 911 tape issue, the prejudice resulting to the defendant from the destruction of the Epps tape alone would not require the sanction of striking Gray’s testimony. We do not see how that could be the case. Consequently, we do not reach the issues pertaining to the 911 tape.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Callahan and Hull, Js., concurred.

Shea, J.,

dissenting. The irritation expressed by the majority over the cavalier attitude shown by the New Haven police department toward our decisions relating to the preservation of the statements of witnesses is understandable, but it does not warrant reversal of the defendant’s robbery conviction or the disregard of heretofore well established principles of harmless error analysis. Although there are some instances in which we are compelled to let the criminal “go free because the constable has blundered”; People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926); such a result is not justified in this case. This outcome, nevertheless, flows inevitably from this decision, because it is plain that the striking of the complainant’s testimony leaves the defendant’s conviction without a sufficient evidentiary basis and necessitates his acquittal.

I agree with the majority’s rejection in part I of the conclusion by the Appellate Court that the police acted in “bad faith” in erasing the tape of the complainant’s testimony after it had been transcribed. The testimony that the loss of the recording resulted from the failure to advise the stenographer of the new departmental policy of preserving the tape adequately supports the trial court’s finding that its erasure was inadvertent rather than intentional.

In part II A the majority concludes that the state should bear the burden of showing harmlessness, apparently because “the state has conceded that the Appellate Court was correct in holding that, because the New Haven police department deliberately destroyed the Epps tape, the state should be required to show that the nonproduction of the tape was harmless.” (Emphasis added.) Having concluded in part I that the destruction of the tape was inadvertent and had resulted from the failure to inform the stenographer of the new policy, the declaration in part IIA that the tape was “deliberately destroyed” by the police is wholly inconsistent with part I. This court is not bound by the state’s concession, especially when it is contrary to a conclusion reached by a trial court. State v. Heinz, 193 Conn. 612, 616, 480 A.2d 452 (1984). The majority, however, despite rejection of the “bad faith” conclusion of the Appellate Court, accepts its characterization of the destruction of the tapes as “deliberate,” when the testimony is undisputed that it resulted from the failure to inform the stenographer to preserve the tape. As the opinion concedes, an inadvertent failure to preserve a statement discoverable under the Jencks Act leaves the burden of proving prejudice on the defendant.

As the majority recognizes, a Jencks Act violation is not a violation of a constitutional right. A failure to comply with Practice Book § 752 is of no greater import. The rule we have followed in respect to non-constitutional rights of an accused is that he bears the burden of proving prejudice by showing that the outcome of the trial would probably have been different if the nonconstitutional infraction had not occurred. I see no reason to reverse the standard allocation of the burden of proving prejudice in this instance of a non-constitutional deviation from the procedure we have prescribed for the preservation of the statement of a witness.

Even if the burden of disproving prejudice were properly to be imposed upon the state, the circumstances of this case demonstrate that the burden has been adequately sustained. The possibility that there is some significant discrepancy between the complainant’s account of the robbery as recorded on the tape and the transcript thereof made by the stenographer is quite remote according to common experience. The complainant testified that the transcript was accurate. Although the opinion refers to inconsistencies between the testimony of the complainant at trial and statements she made to the police, including the transcript of her statement to officer Epps, none of these involve her identification of the defendant or her contention that he had robbed her. The defendant admitted that he had conversed with the complainant in the building where and at the time when the robbery was claimed to have occurred. His testimony was that the complainant, apparently so enamored of him that she sought to arrange a rendezvous with him at her sister’s home, was so offended by his spurning her overture that she was avenging herself by seeking his arrest. That fanciful explanation of the complainant’s motivation for prosecuting the defendant was rejected by the jury in finding him guilty. It is wholly speculative to assume, as the majority does, that some further inconsistency in the details of the complainant’s account of the robbery would have lent sufficient credibility to the defendant’s testimony to have raised a reasonable doubt in the minds of the jurors.

Accordingly, I dissent.

       General Statutes § 53a-134 (a) (4) provides in part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.”

       “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      “[Practice Book] Sec. 755.— —failure to comply with order
      “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”
      Practice Book § 749 defines “statements” as “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       The defendant has raised no claims with regard to Epps’ tape recording techniques.

       “[Practice Book] Sec. 753.---delivery and excision op statements
      “If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use. If the prosecuting authority claims that any statement ordered to be produced-under Sec. 751 contains matter which does not relate to the subject matter of the testimony of the witness, the judicial authority shall order the prosecuting authority to deliver such statement for the inspection of the judicial authority in camera. Upon such delivery, the judicial authority shall not disclose that portion of such statement which does not relate to the subject matter of the testimony of the witness. With such material excised or obliterated, the judicial authority shall then direct delivery of such statement to the defendant or his counsel for his use. If, pursuant to this procedure, any portion of such statement is withheld from the defendant or his counsel and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be sealed and preserved as an exhibit in the case, and, in the event that the defendant appeals, it shall be made available to the appellate court and, unless for good cause the trial court orders otherwise, to counsel for the parties for the purpose of determining the correctness of the ruling of the judicial authority.”

       We note that the defendant repeated this error in his brief.

       The state suggests that because the trial court did not require the state to demonstrate harmlessness, a burden placed on it by the Appellate Court, we should remand the case for a hearing in which the state can present proof that the transcript was, in fact, “verbatim.” The state does not indicate what evidence it would use to establish this. In any event, we decline to follow the state’s suggestion.