text:
    State of Connecticut v. Eugene Russell
    (14089)
    Shea, Callahan, Glass, Hull and Borden, Js.

      Argued February 15
    decision released April 9, 1991

      William M. Bloss, special public defender, for the appellant (defendant).

      Paul Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecelia Wiederhold, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Eugene Russell, was charged by substitute information with burglary in the third degree; General Statutes § 53a-103; larceny in the fourth degree; General Statutes § 53a-125; and being a persistent larceny offender. General Statutes § SSa^O. During his trial by a jury, the defendant filed two motions for a judgment of acquittal, both of which were denied. The jury found the defendant guilty of burglary in the third degree and larceny in the fourth degree, and the defendant thereafter pleaded guilty to being a persistent larceny offender. The trial court imposed an effective sentence of ten years imprisonment execution suspended after seven years to be followed by three years of probation. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Russell, 22 Conn. App. 440, 577 A.2d 1107 (1990). We subsequently granted the defendant’s petition for certification to appeal to this court limited to the following issue: “Did the Appellate Court properly determine that a fenced-off section of a building otherwise open to the public constitutes a ‘building’ for purposes of Connecticut General Statutes § 53a-103?” State v. Russell, 216 Conn. 814, 580 A.2d 65 (1990). We reverse the judgment in part.

The jury could reasonably have found the following facts. On April 11, 1987, at approximately 5 a.m., the night manager of the Pathmark grocery store in East Haven noticed that several cartons of cigarettes appeared to be missing from a cigarette display located in the store’s “service area.” The service area is the portion of the store that, despite the fact that the store provides service 24 hours a day, is closed between the hours of 9 p.m. and 9 a.m., due to the presence of high value merchandise. During these hours, the service area is enclosed by a padlocked, metal folding gate that is eight feet in height.

Following his discovery, the manager, accompanied by the store detective, unlocked the gate and entered the service area. Investigation revealed that numerous cartons of cigarettes were missing. In addition, a brown wallet, containing the defendant’s driver’s license, was retrieved from the floor.

Outside the service area, the manager and the detective discovered that a child’s car seat had been removed from its box and placed on the floor and that the box was missing. A review of a videotape recording made by the store’s surveillance camera revealed that earlier that morning, at approximately 2:20 a.m., a man had removed the car seat from its box and, with the box in hand, had climbed over the gate and into the service area. Within a few minutes, the man had climbed back over the gate and, while still in possession of the box, had exited the store.

Following a report of the theft, the East Haven police went to the house located at the address that appeared on the license found in the service area. In a trash can at the rear of the house, the police uncovered an empty box for a child’s car seat. The police thereafter obtained search warrants for the house and for a car parked near the house. Upon executing the warrants, the police discovered numerous cartons of cigarettes in both the house and the car, each of which bore the Pathmark store’s tax number.

The defendant claims that because the enclosed service area of the Pathmark grocery store is not a “building” within the meaning of § 53a-103, the trial court should have granted his motion for a judgment of acquittal with respect to the burglary charge. The state counters that because it was secured sufficiently to restrict public access, the service area is a “building” as that term is defined in General Statutes § 53a-100 (a) (1) and that, therefore, the judgment of conviction must be affirmed. We agree with the defendant.

“A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103. For purposes of this case, “building” is defined as follows: “Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . .” General Statutes § 53a-100 (a) (1). We must determine, therefore, whether the enclosed service area is a “separate unit” within the meaning of § 53a-100 (a) (1). In so doing, we are mindful that “[cjriminal statutes are not to be read more broadly than their language plainly requires . . . .” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); see also State v. White, 204 Conn. 410, 424, 528 A.2d 811 (1987); State v. Dolphin, 203 Conn. 506, 523, 525 A.2d 509 (1987). Moreover, “[a] penal statute must be construed strictly against the state and liberally in favor of the accused. State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983).” State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988); see also State v. Bunkley, 202 Conn. 629, 641, 522 A.2d 795 (1987).

We faced a similar question in State v. Thomas, 210 Conn. 199, 554 A.2d 1048 (1989), where the defendant was alleged to have committed a burglary by unlawfully entering the counter area of a convenience store, which was open to the public, with the intent to commit a crime therein. We concluded “that under no stretch of the statutory language can the counter area of [a] . . . convenience store be deemed a ‘building’ as that term is defined in § 53a-100 (a) (1).” Id., 205-206. The state asserts that our conclusion in State v. Thomas, supra, that the counter area was not a “building,” was due primarily to the fact that, in contrast to the present case, the area in question was not secured in order to prohibit public access. We disagree.

According to the rule of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated. 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.17; see also Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912). In § 53a-100 (a) (1), the general term, “separate units,” is followed by three examples: “separate apartments, offices or rented rooms.” In State v. Thomas, supra, 205, we concluded that “[t]he store counter, and the area it encompasses, clearly does not fall within the ‘separate unit’ category of offices, rooms or like structures that may themselves be considered ‘separate building[s]’ under § 53a-100 (a) (1) . . . .” Our conclusion was compelled, therefore, by the lack of accord between a counter area and the concept of a “legally identifiable ‘separate unit’ ” inherent in § 53a-100 (a) (1). Id., 206.

By virtue of the independent living or working relations that occur therein and despite the fact that they are located in a single building, within its ordinary meaning, “separate apartments, offices [and] rented rooms” are treated as “legally identifiable ‘separate unit[s]’ ” for purposes of our burglary statutes. In the present case, although the service area was sufficiently secured at the time of the defendant’s entry, the temporary enclosure did not render the service area a separate working unit akin to the examples set forth in § 53a-100 (a) (1). Unlike an office building, where numerous independent working enterprises coexist, the Path mark grocery store houses a single working unit. The temporarily enclosed service area, analogous to a locked closet or a locked storage room, has no business purpose or occupancy distinct from that of the Path-mark store as a whole. See People v. O’Keefe, 80 App. Div. 2d 923, 437 N.Y.S.2d 385 (1981) (locked metal closet not “building” for purposes of burglary statute); People v. Williams, 125 Misc. 2d 9, 13, 478 N.Y.S.2d 554 (1984) (because locked maintenance room in three family house not “independent unit” having distinct business from other units, not a “separate unit” and, therefore, not a “building” under burglary statute).

We are equally unpersuaded by the precedent that the state offers in support of its position. See Dixon v. State, 165 Ga. App. 133, 299 S.E.2d 608 (1983); State v. Sanchez, 105 N.M. 619, 735 P.2d 536, cert. denied, 105 N.M. 618, 735 P.2d 535 (1987); Evans v. State, 677 S.W.2d 814 (Tex. App. 1984). Although those cases upheld burglary convictions based upon entry into secured, but arguably interdependent areas of a building otherwise open to the public, the jurisdictions in which the convictions were procured prohibited, in addition to unlawful entry into a “building,” unlawful entry into “portions” and “parts” of a building. See Dixon v. State, supra, 135 (“[bjurglary is committed when one, without authority, enters any building or room or part thereof ’) (emphasis added); State v. Sanchez, supra, 621 (“ ‘[a] person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof’ ”) (emphasis added); Evans v. State, supra, 817 (“ ‘[a] person commits an offense if without the effective consent of the owner, he: [1] enters a habitation, or a building [or any portion of a building] not then open to the public’ ”). (Emphasis added.) Each of these cases, therefore, is inapposite.

As in State v. Thomas, supra, 205, under no stretch of the statutory language can a temporarily enclosed portion of a grocery store be deemed a “building” as that term is defined in § 53a-100 (a) (1). Consequently, because it is undisputed that the Pathmark grocery store, the only building involved, was open to the public at the time the defendant is alleged to have committed a larceny therein, the state failed to prove beyond a reasonable doubt one of the essential elements of burglary in the third degree, i.e., unlawful entry or remaining by the defendant in a building. We conclude, therefore, that the trial court should have granted the defendant’s motion for a judgment of acquittal on the burglary charge.

The judgment is reversed in part and the case is remanded to the Appellate Court with direction to remand it to the trial court with direction to vacate the judgment of conviction of burglary in the third degree and to grant the defendant’s motion for a judgment of acquittal on that count of the substitute information.

In this opinion the other justices concurred.

       General Statutes § 53a-103 provides in pertinent part: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
      General Statutes § 53a-125 provides in pertinent part: “(a) A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”
      General Statutes § 53a-40 provides in pertinent part: “(c) A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1, 1982, or larceny in the fourth, fifth or sixth degree and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.”

       The trial court imposed two consecutive sentences of five years imprisonment, execution suspended after three and one-half years. Although ordinarily the maximum sentence authorized for a conviction of larceny in the fourth degree is one year imprisonment; see General Statutes §§ 53a-125, 53a-36; in this case, because the defendant was found to be a persistent larceny offender, the trial court was authorized to impose a sentence of one to five years imprisonment on that count. See General Statutes §§ 53a-40 (h), 53a-35a (b).

       It is undisputed that the state alleged that the defendant, with the intent to commit a crime therein, unlawfully entered the enclosed service area which it claims is a “separate unit” of the Pathmark store.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    TIE Communications, Inc. v. Robert Kopp et al.
    (14176)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 20
    decision released April 9, 1991

      Patrick W. Boatman, with whom, on the brief, was John H. Grasso, for the appellant-appellee (named defendant).

      J. Patrick Ovington, with whom, on the brief, was George C. Springer, Jr., for the appellee-appellant (plaintiff).
   Shea, J.

This case involves an appeal and cross appeal from a trial court’s order regarding a prejudgment remedy. The plaintiff, TIE Communications, Inc. (TIE), sought such a remedy incident to its action against Integrated Power Technology, Inc. (IPT), Robert J. Kopp, IPT’s president and sole shareholder (Kopp), and Kopp’s wife, Elizabeth Kopp, the owner of the Kopps’ family home. The Superior Court, Hart-mere, J., granted TIE an ex parte prejudgment remedy against all three defendants in the amount of $1,783,361. As part of the prejudgment remedy, the court gave TIE authorization to attach the Kopps’ family home on the basis of TIE’s allegation that Kopp had fraudulently transferred his interest therein to his wife. The Kopps thereafter moved to dissolve the attachment. After a probable cause hearing, the Superior Court, Fuller, J., dissolved the attachment of the Kopps’ family home, finding that prior to the commencement of the action, Kopp had conveyed his interest in his home to his wife for good and adequate consideration. It also found, however, that TIE had shown probable cause for its complaint against Kopp, and therefore sustained the order of attachment against Kopp, but reduced its amount to $200,000. In addition, the trial court ordered Kopp to disclose his own assets to the extent necessary to satisfy the reduced attachment. TIE and Kopp each appealed.

The following facts are relevant to the issues before us. Kopp is the sole shareholder and president of IPT, which he purchased in 1986 from TIE. TIE sells long-distance telephone systems, for which IPT manufactures power supplies and performs engineering work. TIE is IPT’s biggest customer.

Even before Kopp bought IPT, IPT (then Harmer Simmons Power Supplies) owed TIE over one million dollars. Subsequently, Kopp and IPT entered into several additional financial arrangements with TIE whereby TIE gave security to and eventually paid IPT’s creditors in exchange for guarantees of repayment. In one such arrangement, TIE in 1987 gave IPT a letter of credit in the amount of $250,000, which IPT used as collateral for credit with its banker, Citytrust. Kopp and IPT in return provided TIE with reimbursement and indemnification agreements, the first dated October 20,1987, and the second dated March 17,1988. By these agreements, Kopp became personally obligated to TIE for certain IPT obligations.

When IPT defaulted on its debts to Citytrust, Citytrust in August, 1988, drew on the letter of credit; thus, TIE in effect paid IPT’s debt to Citytrust to the extent of $250,000. TIE, IPT and Kopp then entered into an agreement on September 9, 1988, which the trial court found was intended to reimburse TIE for its payment of the debt to Citytrust.

In an earlier financial arrangement, TIE had guaranteed IPT’s obligation to make payments on certain leases entered into before IPT was purchased by Kopp in 1986. TIE claimed that it had been obliged to make some of the lease payments in 1988 and 1989 in amounts totaling $99,579. It contended that repayment of these sums was governed by certain provisions of the March 17, 1988 agreement between Kopp, IPT and TIE, which had also dealt with the $250,000 letter of credit.

TIE’s complaint against the Kopps alleged, in the first count, a breach by Robert Kopp of the reimbursement and indemnity agreements of October 20,1987, and March 17, 1988, and, in the second and third counts, a fraudulent conveyance by him to his wife of his interest in the family home. In response to the first count, Kopp raised five special defenses, most notably payment, accord and satisfaction based upon paragraph 8 of the September 9, 1988 agreement. In essence, Kopp claimed that the September 9, 1988 agreement wiped the slate clean with respect to every antecedent obligation he owed to TIE.

At the hearing on the prejudgment remedy, TIE’s witness, James Wacker, a vice president and former comptroller of TIE, testified that in order to assist IPT financially, TIE had assigned three research and development projects for IPT to perform on its behalf. One such task was the “Morgan power supply” development project. IPT’s task was to research and develop the “Morgan power supply” and provide TIE with a “documentation page” that would allow TIE to send the product out to subcontractors for manufacturing. The value of this project was approximately $80,000. The parties agreed that paragraph 2 of the September 9, 1988 agreement related to the Morgan power supply job. In substance, this paragraph appeared to settle TIE’s debt to IPT for the Morgan power supply engineering and documentation in exchange for an $80,000 credit against the $250,000 debt that IPT, and Kopp as IPT’s guarantor, owed TIE for honoring the letter of credit. Wacker testified, however, that, although paragraph 2 used the terms “engineering services and technical documentation heretofore provided” (emphasis added), IPT had not provided a satisfactory documentation page for that project prior to September 9, 1988, and thus, by inference, that despite the September 9,1988 agreement, $80,000 of the $250,000 letter of credit remained unpaid.

The trial court found that the evidence was conflicting as to whether all of the terms of the September 9, 1988 agreement, particularly paragraph 2, had been complied with, “which would in effect discharge Robert Kopp from his obligations under the two prior agreements.” The court found probable cause to conclude that $80,000 was still due under the letter of credit and that the $99,579 in lease payments made by TIE was guaranteed by Kopp under those terms of the March 17, 1988 agreement that were not superseded by the September 9,1988 agreement. It therefore sustained the prejudgment remedy against Kopp but reduced it to $200,000, representing the $80,000 still allegedly owing for reimbursement of the letter of credit payment, the $99,579 in lease payments, and an allowance for possible interest.

I

“At the outset, we note the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or grant a prejudment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).

In his appeal, Kopp first claims that the trial court improperly allowed Wacker to testify that IPT had not fully performed the Morgan power supply project. He bases his objection on the parol evidence rule, which prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract. See 3 A. Corbin, Contracts § 573; 4 S. Williston, Contracts (3d Ed.) § 631; General Statutes § 42a-2-202 (Uniform Commercial Code).

As we have so often noted, the parol evidence rule is not a rule of evidence, but a substantive rule of contract law. Security Equities v. Giamba, 210 Conn. 71, 77-78, 553 A.2d 1135 (1989); Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930); see also 2 Restatement (Second), Contracts § 213, comment (a); 3 A. Corbin, supra, § 573; 4 S. Williston, supra, § 631. The rule is premised upon the idea that “when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.” Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. 19, 37 (1851).

The parol evidence rule does not of itself, therefore, forbid the presentation of “parol evidence,” that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant “(1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.” Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 55-56, 453 A.2d 771 (1983). These recognized “exceptions” are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract’s terms, or (2) may be considered because the contract has been shown not to be integrated, or (3) tends to show that the contract should be defeated or altered on the equitable ground that “relief can be had against any deed or contract in writing founded in mistake or fraud.” Noble v. Comstock, 3 Conn. 295, 299 (1820); see also Dale v. Gear, 38 Conn. 15, 18-19 (1871) (agency, trust, equitable relation or equity may be shown by parol evidence).

A

At the hearing, Wacker’s testimony was offered to explain the allegedly unclear language of paragraph 2 of the September 9, 1988 agreement. Kopp argues, however, that once the parties had agreed that paragraph 2 referred to work on the Morgan Power Supply project, the contract ceased to be ambiguous; thus, because it used the term “heretofore performed” in referring to that work, Wacker should not have been allowed to testify that the work in question had not been “heretofore performed.”

In its memorandum of decision, the trial court stated: “The parties agree that the $80,000 item in paragraph two relates to engineering services that IPT was to supply, known as the Morgan power supply.” (Emphasis added.) The hearing transcript demonstrates that the parties agreed to the subject matter of paragraph 2, and to no more. The meaning of the words “those engineering services and technical documentation heretofore provided,” and their application in the context of the rest of paragraph 2, remained ambiguous.

The syntax of the paragraph made it unclear whether the disputed words “those . . . heretofore provided” were intended as an express acknowledgment that the Morgan power supply work had been completed, as an incidental statement that the Morgan power supply work had been completed, as a recital of consideration received, or as an implicit promise or condition precedent that the incomplete Morgan power supply work would be completed forthwith thereby triggering TIE’s obligation to credit IPT and Kopp with $80,000 against the letter of credit debt. The trial court was entitled to consider evidence shedding light on that ambiguity, in which the court apparently perceived an implied promise or condition precedent that the work be completed before TIE could have any obligation to IPT that IPT could “deem satisfied.” See generally 3 A. Cor-bin, supra, § 591 (“proof of fundamental assumption on which agreement is based”).

B

Even had the trial court expressly adopted Kopp’s contention that the words “heretofore provided” contain a factual assertion that IPT had in fact completed performance of its obligations on the Morgan power supply project, the court would still have had valid grounds for admitting the challenged evidence. The parol evidence rule pertains to contract terms, not assertions of fact. “A recital of fact in an integrated agreement may be shown to be untrue.” 2 Restatement (Second), Contracts § 218 (1). This is because “[a]n integrated agreement may have the effect of discharging a prior promise, conveyance or discharge; it does not establish fictitious events.” Id., comment (a).

Typically, this principle permits a party to void a contract on the ground of lack of consideration despite the recital within the contract of the consideration allegedly received. See id., comment (e); 3 A. Corbin, supra, § 586; E. Farnsworth, Contracts § 7.2, pp. 464-65; 1 S. Williston, supra, § 115B. A recitation of consideration received does not prevent proof that there was no such consideration. Roe v. Jerome, 18 Conn. 138, 164 (1846); Raymond v. Sellick, 10 Conn. 480, 483 (1835); 2 Restatement (Second), Contracts § 218, comment (e). It is simply prima facie evidence, shifting the burden of proof to the party disputing the consideration. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959); Raymond v. Sellick, supra; see also Roe v. Jerome, supra. If the recited consideration was never given, the court may either void the contract or imply a promise not explicitly stated. 2 Restatement (Second), Contracts § 218, comment (e). Thus: “A, an insurance company, issues a fire insurance policy to B. The policy provides that A is not bound until the premium is paid, and falsely recites payment. On accepting the policy, B impliedly promises to pay the premium and A is bound by the policy.” Id., comment (e), illustration (2).

This case fits squarely within the Restatement illustration cited. Even if the contract stated unequivocally that the Morgan power supply project services had been “heretofore provided,” TIE would have been entitled to show that the services in question had not been “heretofore provided” and that therefore IPT had an implied obligation to provide those services before the rest of the paragraph could take effect. See also Vanoski v. Thomson, 114 Idaho 381, 383, 757 P.2d 244 (Id. App. 1988); but see Wade v. Ballard, 69 Ga. App. 669, 671, 26 S.E.2d 542 (1943); Caplan v. Saltzman, 407 Pa. 250, 180 A.2d 240 (1962).

C

Kopp’s second claim is that because Wacker’s testimony was inadmissible, there was no evidence whatever from which the trial court could have found that there was probable cause to support the prejudgment remedy.

We have already decided that Wacker’s testimony was admissible either to explain an ambiguity in paragraph 2 of the September 9, 1988 agreement, or to rebut a factual recitation contained in that agreement. The trial court’s evaluation of the evidence shows that it would have reached the same result under either theory. In its decision, the court summarized: “The defendants claim [the Morgan power supply project] was delivered by them, and TIE claims it wasn’t. There is insufficient evidence to resolve this dispute. Even though the defendants may prevail on this claim at trial, the court finds that there is evidence sufficient to meet the probable cause standard that $80,000 is still due under the letter of credit.” This conclusion was reasonable and as such must survive the limited standard of review applicable to appeals from prejudgment remedies. Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., supra, 166.

II

TIE raises two issues in its cross appeal. First, it claims that the trial court should have granted its motion for disclosure of IPT’s assets, especially since the bulk of Kopp’s own assets were sums owed to him by IPT that IPT had not yet received from its own debtors. In fact, the trial court neither granted nor denied the motion, believing, on the basis of the parties’ own assertions, that the prejudgment remedy against IPT was not before it. To the extent that the motion for disclosure of assets sought disclosure of IPT’s assets, therefore, it remains pending on the Superior Court docket for a decision by the trial court and is not properly a subject of this appeal.

TIE also challenges the trial court’s discharge of its attachment against the Kopp family home. TIE does not dispute the court’s finding of fact in this proceeding that Kopp’s sale of his half-interest in the family home to his wife for $55,000 in cash was for good and adequate consideration. It does not challenge, moreover, the finding that there was no probable cause to believe that Elizabeth Kopp participated in the sale with the intent to defraud Kopp’s creditors, and thus no probable cause to sustain the attachment against her property. TIE claims instead that, because its claim of a fraudulent conveyance could not be resolved on the merits at a hearing on a prejudgment remedy; see Augeri v. C.F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538 (1977); it might still be able to prove at trial that the transfer was a “fraudulent conveyance” and thus that Robert Kopp retained an equitable interest in the property. Because probable cause was found as to his liability to TIE based upon the guaranty agreements, TIE claims to be entitled to attach his undetermined and possibly nonexistent “interest” in the family home owned by his wife, even though no probable cause was found that his sale of that interest to his wife was a fraudulent conveyance.

TIE’s argument is specious. Once the Kopps challenged the attachment, and the trial court had found, even at this preliminary proceeding, that the transfer to Elizabeth Kopp was for adequate consideration, and that there was no showing of fraudulent intent on her part; see Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990); Kopp had no attachable interest in the family home held in her name, and “saying doesn’t make it so.”

The attachment against the Kopps’ family home was originally granted as an ex parte prejudgment remedy. Our statutes permit a prejudgment remedy, as defined in General Statutes § 52-278e (a), to be granted ex parte upon oath “(1) that the prejudgment remedy requested is for an attachment of real property; or (2) that there is reasonable likelihood that the defendant . . . (D) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors . . . .” Thus, § 52-278e (a) permitted TIE to attach Robert Kopp’s alleged “interest” in the property transferred to his wife based upon the sworn statement that there was a reasonable likelihood that he had “fraudulently disposed of his property,” for, if he had done so, he would plainly have retained an attachable equitable interest in that property. Denison Development Co. v. Gunther, 189 Conn. 333, 334-35, 455 A.2d 1340 (1983). Insofar as the ex parte prejudgment remedy authorized attachment of the legal title to the property, it was permissible under § 52-278e (a) (1), because Elizabeth Kopp is a codefendant to this action.

We have previously held that § 52-278e (a) is saved from constitutional infirmity by the requirement that a requested probable cause hearing shall swiftly follow an ex parte attachment. Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 17, 542 A.2d 1159 (1988); but see Pinsky v. Duncan, 907 F.2d 17 (2d Cir.), cert. granted sub nom. Connecticut v. Doehr, U.S. , 111 S. Ct. 42, 112 L. Ed. 2d 18 (1990). When an ex parte prejudgment remedy allows a plaintiff to cloud the marketable title of the real property of a third party, however, it has reached the outer limit of the constitutional stratosphere. Once a trial court has found there is no probable cause that the plaintiff will be able to prove the only legal claim linking the third party’s property to the defendant, the plaintiffs statutory right to attach an interest in the third party’s property must cease. To conclude otherwise would authorize a plaintiff to encumber anyone’s property upon the wildest and most unfounded assertions of fraudulent conveyance. Such an attachment would violate the property owner’s rights of due process under the fifth and fourteenth amendments to the United States constitution, and is not countenanced by any reasonable construction of our statute.

The judgment is affirmed.

In this opinion the other justices concurred.

       IPT’s assets had previously been acquired by Citytrust, IPT’s primary secured creditor. The prejudgment remedy against IPT authorized garnishment of IPT’s only remaining assets, sums owed IPT by its own debtors.

       IPT did not move to dissolve the prejudgment remedy attachment filed against it. The trial court indicated that it had not been asked to consider the validity of the garnishment against IPT’s debtors.

       The September 9,1988 agreement contained the following relevant provisions: “WHEREAS, TIE has assisted IPT by obtaining a letter of credit in favor of Citytrust in the amount of $250,000 to secure certain indebtedness of IPT (the ‘Letter of Credit’); and
      “WHEREAS, by a Reimbursement and Indemnification Agreement dated as of October 20, 1987 and a Reimbursement and Indemnification Agreement dated as of March 17, 1988 (the ‘Indemnity Agreements’), IPT and Kopp, jointly and severally, agreed to immediately reimburse TIE for any and all losses, liabilities and expenses incurred by TIE in connection with, or as a result of, the issuance of the Letter of Credit; and
      “WHEREAS, by draft dated August 30,1988, Citytrust has drawn the full amount of the Letter of Credit upon the assertion that IPT has defaulted on the indebtedness secured by the Letter of Credit; and
      “WHEREAS, IPT and Kopp wish to make certain accommodations for the benefit of TIE in partial satisfaction of their obligations under the Indemnity Agreements (the ‘Obligations’) to reimburse TIE in the amount of $250,000.
      “NOW, THEREFORE, the parties hereto agree as follows . . .
      “2. TIE shall have no obligation to make any payment to IPT for or in connection with those engineering services and technical documentation heretofore provided by IPT to TIE with respect to power supplies produced by IPT for TIE, and all obligations of TIE to IPT with respect to or in connection with such engineering services and documentation are hereby deemed satisfied. The provisions of this paragraph 2 shall constitute satisfaction of the Obligations to the extent of $80,000. . . .
      “6. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and there are no other understandings or agreements between them whether oral or written. . . .
      “8. Subject to the satisfaction of all of the Obligations pursuant to the terms of this Agreement, this Agreement supersedes and replaces the Indemnity Agreements.”
      In addition to the language in paragraph 2, the September 9,1988 agreement set forth other means by which IPT could recompense TIE for the $250,000 letter of credit, e.g., discounts on future services.

       The March 17,1988 agreement contained the following relevant provisions: “WHEREAS, IPT and Kopp have requested that TIE assist IPT in obtaining financial accommodations by: (i) extending certain inventory purchase commitments to Citytrust to collateralize certain indebtedness of IPT; (ii) obtaining or renewing a letter of credit in favor of Citytrust in the amount of $250,000 to secure certain indebtedness of IPT; and (iii) providing such other assistance as may be requested by IPT or Kopp (the ‘Financial Assistance’); and
      “WHEREAS, in connection with the issuance of the Financial Assistance TIE will incur certain liabilities and expenses; and . . .
      “WHEREAS, TIE is willing to assist IPT in obtaining financial accommodations and to provide Financial Assistance only if IPT and Kopp each agree to reimburse TIE for any and all liabilities and expenses incurred by TIE in connection with the Financial Assistance and to indemnify TIE in accordance with the terms of this Agreement; and
      “WHEREAS, IPT and Kopp have each agreed to reimburse TIE for any and all liabilities and expenses incurred by TIE in connection with the provision of Financial Assistance.
      “NOW, THEREFORE, the parties hereto agree as follows:
      “1. IPT and Kopp, jointly and severally, hereby agree to immediately reimburse TIE for any and all losses, liabilities and expenses incurred by TIE in connection with, or as a result of, the provision of Financial Assistance.
      “2. IPT and Kopp each hereby waive notice of . . . changes in terms or extensions of time of payment, the taking and releasing of collateral or guaranties, and the settlement, compromise, amendment, alteration or release of any of the obligations of IPT and Kopp under this Agreement (the ‘Obligations’), and agree that, as to each of them, the amount of the Obligations shall not be diminished by any of the foregoing. . . .
      “In the event any claim or action, or action on any judgment, based on this Agreement is made or brought against either IPT or Kopp or both, IPT and Kopp each agree not to deduct, set off or seek to counterclaim for, or recoup any, amounts which are or may be owed by TIE to it or him, respectively.”

       If, as Kopp urges, the particular designation “Morgan power supply” substitutes for the entire phrase, “those engineering services and technical documentation heretofore provided,” paragraph 2 reads as follows: “TIE shall have no obligation to make any payment to IPT for or in connection with the Morgan power supply development project, and all obligations of TIE to IPT with respect to the Morgan power supply development project are hereby deemed satisfied.” Thus, according to Kopp, paragraph 2 simply settles TIE’s preexisting debt to IPT and requires no future performance. Thus, once IPT had satisfied its other obligations in the September 9, 1988 agreement, the agreement would extinguish Kopp’s own obligations to TIE.
      TIE conceded only that the subject matter of paragraph 2 was the Morgan power supply development project. If, however, we apply that concession so as to substitute “Morgan power supply” for the shorter phrase, “engineering services and technical documentation,” paragraph 2 reads as follows: “TIE shall have no obligation to make any payment to IPT for or in connection with those engineering services and technical documentation that have been heretofore provided by IPT to TIE with respect to the Morgan power supply development project, and all obligations of TIE to IPT with respect to or in connection with the engineering services and technical documentation that were heretofore performed with respect to that project are hereby deemed satisfied.” According to this reading, TIE no longer had to pay for any work IPT had done on the project, but the paragraph would not affect IPT’s duty to perform, and TIE’s duty to pay for, work unperformed as of September 9, 1988. Thus, if the trial court adopted TIE’s interpretation of paragraph 2, any preexisting agreement between the parties with respect to work on the Morgan power supply project would be merged into and satisfied by the September 9,1988 agreement only to the extent that the Morgan power supply project work had actually been performed prior to that date. To the extent that the Morgan power supply work had not been performed, the preexisting agreement would continue to govern. According to TIE, the project was one of the financial accommodations governed by the March 17,1988 agreement, and guaranteed by Kopp personally, so that even if in theory the September 9, 1988 agreement credited $80,000 to IPT and Kopp on the letter of credit debt, Kopp would still be personally liable for the value of the never completed Morgan project. This would explain why TIE’s complaint does not refer to the September 9, 1988 agreement: it would simply be irrelevant to the continued application of the earlier agreements upon which TIE’s complaint is based.

       See footnote 5, supra.

       TIE was also entitled to present the offered evidence in order to show that IPT had practiced fraud in the inducement of the contract by misrepresenting that it had completely provided the engineering services and documentation required by TIE in connection with the Morgan supply project. Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 453 A.2d 771 (1983); Ursini v. Goldman, 118 Conn. 554, 562, 173 A. 789 (1934); McLaughlin v. Thomas, 86 Conn. 252, 256-57, 85 A. 370 (1912); Noble v. Comstock, 3 Conn. 295, 299 (1820). Alternatively, Wacker’s testimony could have supported a finding that TIE was operating under a unilateral mistake that the work had already been performed, which redounded to IPT’s and Kopp’s unconscionable advantage. Geremia v. Boyarsky, 107 Conn. 387, 390, 140 A. 749 (1928). TIE did not purport to offer the disputed testimony for either purpose, and the trial court did not rely upon these alternative theories in reaching its decision. Because we conclude that the evidence was properly admitted and applied by the trial court, we need not consider further these alternative grounds for its admissibility.

       Kopp's third claim on appeal, challenging the trial court’s order for disclosure of his assets in the amount of $200,000, is predicated entirely upon his contention that there was no evidence upon which the trial court could find probable cause that any of his obligations to TIE survived the September 9,1988 agreement. Because we have already rejected that contention, we also affirm the trial court’s order for disclosure of his assets.

       Interspousal transfers are not presumptively fraudulent. Cf. Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990).


author: Peters, C. J.

text:
    Latham and Associates, Inc. v. William Raveis Real Estate, Inc.
    (14175)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued February 21
    decision released April 9, 1991

      James M. Nugent, with whom, on the brief, was George W. Derbyshire, for the appellant (plaintiff).

      Irwin J. Gordon, for the appellee (defendant).
   Peters, C. J.

The issues in this appeal arise out of a dispute concerning the sale of two integrated computer systems that failed to meet their purchaser’s needs for accurate documentation. The plaintiff, Latham & Associates, Inc. (vendor), filed a complaint to recover the unpaid purchase price for computer hardware and software delivered to the defendant, William Raveis Real Estate, Inc. (purchaser). The purchaser, claiming misrepresentation and breach of warranty, denied its own liability and sought, in a counterclaim, to recover damages as well as the return of moneys paid to the vendor. The trial court, after a hearing, found the issues for the purchaser, both on the complaint and on the counterclaim, but limited the purchaser’s recovery to $81,500, representing a return of its payments for software. The vendor filed an appeal in the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The trial court found the following facts. The purchaser is a real estate company that sought computerized capacity to provide efficient interconnection between its own multiple offices and the various banks with which it dealt. The vendor, aware of the purchaser’s needs and of the purchaser’s reliance on the vendor’s expertise to satisfy these needs, undertook to provide two computer systems that would meet these needs. To persuade the purchaser that it had the capacity to undertake these responsibilities, the vendor misrepresented the extent of its expertise in creating functioning computer systems.

The parties entered into two contracts for the delivery of computer systems. The first contract, dated October 15,1982, called for the vendor to deliver hardware and software for a so-called real estate system. The purchaser made all scheduled payments under this contract. The second contract, dated March 25,1984, called for the vendor to develop and install a second computer system, the so-called mortgage system. Because of dissatisfaction with the performance of the software tendered under both contracts, the purchaser did not fully pay license fees or software support charges for the mortgage system.

The vendor’s complaint sought to recover for the amounts unpaid on the mortgage system, while the purchaser’s counterclaim sought to recover the payments it had made, and damages it had incurred, with respect to the software on both the real estate system and the mortgage system. The trial court found that, for both computer systems, despite its contractual representations to the contrary, the vendor was never able to provide software that reliably delivered the information sought by the purchaser. The trial court also found, however, that the purchaser had not presented a sufficient factual basis for its alleged right to recover certain elements of damages for the vendor’s nonperformance. The trial court therefore rendered judgment against the vendor on its complaint and in favor of the purchaser on its counterclaim for return of the software contract price, in the amount of $61,750 for the real estate system and $19,750 for the mortgage system, for a total recovery of $81,500.

The vendor’s appeal from this judgment focuses on the merits of the judgment on the purchaser’s counterclaim. The vendor does not contest the trial court’s finding of fact that the two computer systems that it furnished the purchaser did not fulfill the parties’ expectations for reliable data retrieval. The vendor does not challenge the trial court’s conclusion of law that article 2 of the Uniform Commercial Code; General Statutes §§ 42a-2-101 through 42a-2-725; governs the transactions between the parties, even though the mortgage system contemplated a licensing arrangement rather than an outright sale.

The vendor has, however, raised thirteen other issues concerning various procedural and evidentiary rulings of the trial court. Most of these claims rest on factual assumptions that the trial court rejected. All of them suffer from the difficulty that appellate pursuit of so large a number of issues forecloses the opportunity for fully reasoned discussion of pivotal substantive concerns. A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. Practice Book § 4065; Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990); Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987); see Isaac v. Mount Sinai Hospital, 210 Conn. 721, 732, 557 A.2d 116 (1989).

I

The most important issue before us, which impinges on both parts of the purchaser’s counterclaim, is whether a purchaser may recover the moneys paid for a dysfunctional computer system, on a theory of breach of express warranty, without expert testimony to identify the cause for the computer system’s generation of inaccurate data. The vendor maintains that the purchaser must present expert testimony in order to rule out the possibility of user error. We disagree.

The need for expert testimony to establish a breach of warranty for computer systems is a question of first impression in this state and elsewhere. As a rule, expert testimony is required “when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.” Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); Aspiazu v. Orgera, 205 Conn. 623, 630-31, 535 A.2d 338 (1987); Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293 (1971); Jaffe v. Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.16.5. We have not had the occasion to apply this principle in the context of computer dysfunction. In other jurisdictions, because expert testimony about the causes of a computer system’s dysfunction was produced, the courts were not confronted with the sufficiency of the evidence claim that the vendor makes in this case. See, e.g., Burroughs Corporation v. Chesapeake Petroleum & Supply Co., 282 Md. 406, 408, 384 A.2d 734 (1978); In re Cadillac V8-6-4 Class Action, 93 N. J. 412, 427, 461 A.2d 736 (1983); Segall v. Ben’s Truck Parts, Inc., 5 Wash. App. 482, 483, 488 P.2d 790 (1971). Even in Cricket Alley Corporation v. Data Terminal Systems, Inc., 240 Kan. 551, 665, 732 P.2d 719 (1987), on which the purchaser relies for its expansive language, an expert found fault with the equipment delivered by the provider of the computer system.

On the present record, we are not persuaded that we should adopt a hard-and-fast requirement for expert evidence in every case of dissatisfaction with the output produced by computer systems. Three significant facts support the trial court’s conclusion that expert testimony was not required in this case. First, the purchaser’s burden of proof in this case was attenuated by virtue of the trial court’s finding that the purchaser’s right to return of the software purchase price was grounded in the purchaser’s exercise of its right of rejection under article 2 of the Uniform Commercial Code. Unlike the situation of a buyer who has accepted goods despite their nonconformity, who must assume the burden “to establish any breach”; General Statutes § 42U-2-607; a rejecting buyer need only demonstrate that “the tender of delivery fail[s] in any respect to conform to the contract . . . .” General Statutes § 42a-2-601. The trial court found that the vendor had not sustained its burden of proving that malfunctioning of the computer systems was caused by personnel failures attributable to the purchaser. Second, despite the trial court’s ruling that expert testimony was unnecessary, the record discloses that the purchaser introduced some expert testimony about deficiencies in certain aspects of the vendor’s software programs. Third, at least with respect to the real estate computer system, the purchaser relied on representations by the vendor that included the promise of support services that inferentially encompassed some vendor responsibility for the work product of the purchaser’s employees. In these circumstances, given the trial court’s unchallenged finding that the computer software did not perform in accordance with the expectations of the parties, the court could reasonably conclude that the purchaser had produced sufficient evidence to sustain its recovery of the purchase price without expert testimony detailing the cause of the software failure.

II

The vendor has raised several other issues concerning the purchaser’s recovery of the software purchase price on its counterclaim with respect to the real estate computer system. The vendor’s appeal renews three defenses to this counterclaim, which the trial court rejected, alleging: (1) the running of the statute of limitations, General Statutes § 42a-2-725; (2) an accord and satisfaction arising out of the subsequent negotiation of the mortgage system contract; and (3) a waiver arising out of a written acceptance form signed by an employee of the purchaser. In light of the trial court’s factual findings, the vendor’s further pursuit of these claims does not warrant extensive discussion.

To sustain its affirmative defense that the purchaser’s counter claim was time barred, the vendor had to establish the purchaser’s noncompliance with the requirements of § 42a-2-725. For this purpose, the vendor had the burden of proving the date on which “tender of delivery [was] made,” because delivery is what starts the running of article 2’s statute of limitations. The record shows that the vendor did not satisfy this burden. It asserted that the statute began to run on October 15,1982, but that was the date when the real estate system contract was negotiated. Delivery of the hardware required for the real estate system was not completed until 1983, and delivery of the software was arguably never completed. On this factual record, the vendor has not established its affirmative defense under § 42a-2-725.

The vendor’s affirmative defense of accord and satisfaction arises out of its claim that the mortgage system contract was intended to encompass and replace its obligations under the real estate system contract. The trial court made a factual finding to the contrary. Although the mortgage system contract contained a merger clause indicating that the written document was intended as a definitive integration of the agreement of the parties concerning the mortgage system; see General Statutes § 42a-2-202; the trial court was entitled to find that the parties did not intend the execution of the mortgage system contract to discharge the obligations previously assumed by the vendor in the real estate system contract. See TIE Communications, Inc. v. Kopp, 218 Conn. 281, 589 A.2d 329 (1991); Halloran v. Fischer, 126 Conn. 44, 46, 9 A.2d 290 (1939); 2 Restatement (Second), Contracts (1981) § 279.

The trial court equally rejected, on factual grounds, the vendor’s assertion that an acceptance form signed by an employee of the purchaser constituted a waiver of all outstanding contract claims relating to the real estate system contract. The court found that the employee had no authority to bind the purchaser in this regard, and that she had been misled in her signature by representations on behalf of the vendor that the document was a mere formality. Without a persuasive challenge to these underlying factual findings, this defense on the part of the vendor cannot be sustained.

Ill

The vendor’s appeal raises a number of different claims with respect to the trial court’s judgment permitting the purchaser to recover its software purchase price payments for the mortgage system. Procedurally, the vendor alleges that the purchaser failed to plead or prove its compliance with the requirements of General Statutes § 42a-2-602 for an effective rejection. Substantively, the vendor maintains that the purchaser’s breach of warranty claims cannot be recon-died with various dauses in the mortgage system contract that purport to disclaim the vendor’s liability and to impose time limitations on the purchaser’s recovery. These claims, too, run afoul of the trial court’s dispositive factual findings.

The vendor’s procedural argument focuses on the notification requirements that, under article 2, circumscribe a disappointed purchaser’s rights to reject goods that are nonconforming. The vendor’s contention that the purchaser was required to plead its compliance with the requirements of § 42a-2-602 cannot survive the trial court’s finding that the vendor permitted evidence on the issue of notification of rejection to be introduced, without objection, during the trial. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981). The vendor’s alternate contention that the purchaser failed to prove its compliance cannot stand in light of the trial court’s finding that, during the pendency of the vendor’s efforts to cure the defects in the software, the purchaser reasonably delayed exercising its right to reject the vendor’s tender. Cf. General Statutes § 42a-2-508. Until the possibility of cure had been exhausted, the purchaser did not have the opportunity to make the final inspection that is the prerequisite to an implied rejection under General Statutes § 42a-2-606 (1) (b). See Plateq Corporation v. Machlett Laboratories, Inc., 189 Conn. 433, 441-42, 456 A.2d 786 (1983). Finally, despite the execution of an acceptance form by an employee who had no authority to bind the purchaser in this respect, the trial court could and did find that the purchaser never in fact accepted the software in the manner contemplated by the applicable provisions of article 2. These findings impliedly encompass the further factual inference that the purchaser’s ultimate rejection and the accompanying notification of the vendor were, in the particular circumstances of this case, as “seasonable” as § 42a-2-602 requires. See Contoura Business Products, Inc. v. TLD, Inc., 1 Conn. App. 690, 691-92, 474 A.2d 1265 (1984).

The vendor’s substantive argument invokes the terms of the mortgage system contract as grounds for the unenforceability of the warranty claims on which the purchaser relies. This argument, too, founders on the factual findings of the trial court. The trial court found that the vendor, by its representation that it would develop a software system that would suitably meet the purchaser’s demonstrated needs, had given an express warranty as that term is defined in General Statutes § 42a-2-313. See Acme Pump Co. v. National Cash Register Co., 32 Conn. Sup. 69, 71-72, 337 A.2d 672 (1974). Such an express warranty may be actionable despite provisions in contractual disclaimers and limitation of liability clauses; General Statutes §§ 42a-2-316(1) and 42a-2-719 (2); if, as the trial court found, the restrictive clauses are factually determined to have been unreasonable or to have failed of their “essential purpose.” See Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 123, 374 A.2d 144 (1976). The court’s further finding of the vendor’s misrepresentation about the extent of its expertise in the development of comparable computer systems negates the vendor’s assertion that the mortgage system contract, as a complete and exclusive integration of the agreement, excluded parol evidence about express warranties. A misrepresentation undermines the intentional adoption of an integrated writing that is an essential prerequisite to invocation of the parol evidence rule. General Statutes § 42a-2-202; see TIE Communications, Inc. v. Kopp, supra; Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 453 A.2d 771 (1983).

IV

We have carefully examined the remaining issues raised by the vendor’s appeal. These principally concern the provision of a transcript to the trial court and the manner in which the trial court calculated damages. Our examination of these contentions persuades us that they furnish no basis for reversal of the judgment of the trial court.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 42a-2-607 provides in relevant part: “effect of ACCEPTANCE; NOTICE OF BREACH; BURDEN OF ESTABLISHING BREACH AFTER ACCEPTANCE; NOTICE OF CLAIM OR LITIGATION TO PERSON ANSWERABLE over. (1) The buyer must pay at the contract rate for any goods accepted. . . . (4) The burden is on the buyer to establish any breach with respect to the goods accepted.”
      “Under article 2, the rights and liabilities of the parties are determined, at least in part, by the extent to which the contract has been executed. The buyer’s acceptance of goods, despite their alleged nonconformity, is a watershed.” Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 563, 438 A.2d 959 (1980). After acceptance, the buyer’s further remedies by way of damages or recovery of the purchase price depend upon the buyer’s proof that the goods are nonconforming. General Statutes §§ 42a-2-607 (3), 42a-2-608, and 42a-2-714; Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machinery, Inc., 184 Conn. 10, 13-15, 441 A.2d 43 (1981).

       “[General Statutes] Sec. 42a-2-601. buyer’s rights on improper delivery. Subject to the provisions of section 42a-2-612 on breach in instalment contracts and unless otherwise agreed under sections 42a-2-718 and 42a-2-719 on contractual limitations of remedy, if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may ,(a) reject the whole; or (b) accept the whole; or (c) accept any commercial unit or units and reject the rest.”

       General Statutes § 42a-2-725 provides in relevant part: “statute of limitations in contracts for sale. (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
      “(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.”

       Although the vendor takes issue with the trial court’s finding that it had undertaken a continuing warranty obligation to the purchaser, we need not pursue that question.

       “[General Statutes] Sec. 42a-2-202. final written expression: parol OR extrinsic evidence. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of dealing or usage of trade as provided by section 42a-l-205 or by course of performance as provided by section 42a-2-208; and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”

       Section 279 of the Second Restatement of Contracts (1981) provides: “substituted contract
      “(1) A substituted contract is a contract that is itself accepted by the obligee in satisfaction of the obligor’s existing duty.
      “(2) The substituted contract discharges the original duty and breach of the substituted contract by the obligor does not give the obligee a right to enforce the original duty.”
      Comment (a) to § 279 notes that the existence of a substituted contract depends upon the intention of the parties.

       General Statutes § 42a-2-602 provides in relevant part: “manner and effect OF rightful rejection. (1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.”

       “[General Statutes] Sec. 42a-2-508. cure by seller of improper tender OR delivery; replacement. (1) Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
      “(2) Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.”

       General Statutes § 42a-2-606 provides in relevant part: “WHAT CONSTITUTES acceptance of goods. (1) Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or (b) fails to make an effective rejection as provided by subsection (1) of section 42a-2-602, but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”

       “[General Statutes] Sec. 42a-2-313. express WARRANTIES BY AFFIRMATION, promise, description, sample. (1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise, (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description, (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
      “(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warranty’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

       General Statutes § 42a-2-316 provides in relevant part: “exclusion OE modification OF WARRANTIES. (1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence negation or limitation is inoperative to the extent that such construction is unreasonable.”

       General Statutes § 42a-2-719 provides in relevant part: “contractual MODIFICATION OR LIMITATION OF REMEDY. . . .
      “(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.”


author: Santaniello, J.

text:
    State of Connecticut v. Donald Couture
    (13725)
    Peters, C. J., Callahan, Covello, Borden and Santaniello, Js.

      Argued December 12, 1990
    decision released April 16, 1991

      John R. Williams, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom were Marcia Smith, senior assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, and Bradford J. Ward, supervisory assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of felony murder in violation of General Statutes § bSa-Mc. He was sentenced to three terms of imprisonment of twenty-five years to life, such sentences to run consecutively, for a total effective sentence of seventy-five years to life.

The defendant was indicted by a grand jury in 1979 for the commission of three murders in the course of an armed robbery. He was convicted after a jury trial in 1981 and appealed. That conviction was reversed by this court. State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) (Couture I). A second trial that commenced in November, 1986, culminated in a mistrial. A third trial, commenced on May 9,1989, led to the convictions from which the defendant presently appeals.

In his appeal the defendant alleges that the trial court improperly: (1) conducted the voir dire process on the first day of the Jewish holiday of Passover; (2) restricted voir dire examination of a prospective juror who had served on a prior criminal jury; (3) limited cross-examination of the state’s chief witness as to an alleged prior accusation; (4) permitted the state to introduce the hearsay statements of a coparticipant in the crimes through the testimony of the state’s chief witness; (5) denied the defendant a speedy trial; and (6) denied the defendant’s motion to suppress the fruits of the searches and seizures conducted at his house at the time of his arrest. During oral argument before this court, counsel for the defendant withdrew the speedy trial claim from consideration.

The facts that the jury could reasonably have found from the evidence presented at trial are virtually indistinguishable from those described by this court in Couture I, supra, 532: “On the early morning of April 16,1979, the police were called to the Purolator Armored Car garage in Waterbury where three guards, Leslie Clark, Edward Cody and William West, were found shot to death. Each body suffered multiple gunshot wounds, and the exterior and interior of the garage were littered with 24 expended 30 caliber shell casings fired from two M-l semi-automatic carbines. The truck [that] Cody and West had driven from Hartford early that morning into the Waterbury garage where Clark was working alone was riddled with bullet holes, and its contents, a shipment of approximately 1.8 million dollars in cash, checks, food stamps and jewelry were missing.”

Two witnesses for the state, Evelyn Vega and Donna Souza, testified about a plan, formulated in February of 1979, to rob the Purolator Armored Car garage in Waterbury. Vega, Souza, Patricia Dolphin, Lawrence Pelletier and the defendant were involved in planning this robbery. Vega and Souza testified as state’s witnesses and implicated the defendant as one of the two people involved in committing the crime. They testified that, after returning to the defendant’s home immediately after the robbery, Pelletier and the defendant had described the robbery and murders, and then had proceeded to transport all of the weapons and fruits of the crime from their pickup truck into the house. Certain of the contraband and weapons were then moved to the home of Pelletier and Vega, who were living together. Thereafter, on the basis of a statement given by Dolphin on April 17,1979, the police executed a search warrant on the defendant’s home in Walling-ford and discovered numerous items, including two large sacks of money, a money bag, garbage bags full of money and coins. Also found in the basement was a locked, grey metal cabinet. It contained, among other things, a briefcase full of money, black sneakers, gloves, a Connecticut license plate, wire cutters, two carbine rifles, tape, and clips of ammunition. A key on a leather loop attached to the defendant’s pants fit the lock on the metal cabinet. A Cadillac automobile and a green pickup truck were discovered in the area behind the defendant’s residence.

The continuing police investigation was able to match all but one of the deposit bags taken from the defendant’s residence with the deposit bags listed on the bills of lading for the armored car in the Purolator garage. In addition, the Waterbury police laboratory determined that two of the cartridge casings discovered in Pelletier’s basement had been ejected from the same weapon as ten of the casings taken from the crime scene; that all of the cartridge casings, bullets, and bullet fragments taken from the crime scene or the bodies of the slain guards were linked to the two carbines found in the defendant’s basement; that the victims had been shot by both of the carbines; and that the wire cutters found in the defendant’s basement had severed a chain behind the Purolator garage.

During the trial, Souza, the defendant’s former wife was cross-examined as to whether she had, on a prior occasion, falsely accused her lawyer of rape. The state’s objection was sustained, and the defendant attempted through a series of voir dire questions to qualify the line of questioning but failed. He now claims that his sixth amendment right to confront and cross-examine his accusers has been unconstitutionally denied.

The defendant also objected to the testimony of Yega, who testified in great detail about statements that Lawrence Pelletier made privately to her, in the absence of the defendant, in which Pelletier supposedly provided a graphic description of the robbery and killings and the role of the defendant in committing these crimes. The court ruled that the statements were admissible under the coconspirator exception to the hearsay rule. The defendant claims that the statements did not fall within the exception and should have been excluded on federal constitutional grounds.

The defendant further moved to suppress the fruits of the searches and seizures conducted at his house at the time of his arrest. These searches yielded the murder weapons and most of the loot taken from the Purolator garage. A motion to suppress on the same grounds was denied by the trial court, Hull, J., in the first trial, and upon appeal, this court affirmed Judge Hull’s ruling. Couture I, supra, 531-47.

I

The defendant first claims that the trial court should not have held jury selection on the first day of Passover, an important Jewish holiday. He argues that religiously observant Jews would not serve on a jury on the first day of Passover, and thus, that he was deprived of his constitutionally guaranteed right to a jury truly representative of the community.

The factual background for this claim arises out of the timing of the voir dire, which commenced on April 18,1989, and concluded on May 4,1989. Over the defendant’s objection, jury selection was held on April 20,1989, the first day of Passover. The defendant challenged the entire panel and each venireman called that day on the ground of intentional exclusion of observant members of the Jewish faith. During jury selection proceedings that day, two jurors were selected for service, and the defendant exercised two peremptory challenges. On May 3, with fewer than twelve jurors selected, the defendant exhausted his peremptory challenges. He then moved for the restoration of at least one peremptory challenge to replace those he was forced to exercise on the first day of Passover. The motion was denied and an exception taken. On May 9, the defendant renewed his claim, and introduced into evidence an affidavit of a rabbi and an excerpt from a book entitled “Gateway to Judaism,” by Albert M. Shulman. This introduction was insufficient to establish an adequate factual basis.

The defendant’s challenge is based on the sixth and fourteenth amendments to the federal constitution. The fourteenth amendment has long been held to forbid unequal treatment at the venire stage of jury selection. Strauder v. West Virginia, 100 U.S. 303 (1879). Likewise, the sixth amendment guarantees criminal defendants an “impartial jury”; Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990); that is, a jury drawn from a representative venire that reflects a “fair cross section of the community.” Id.; Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).

The defendant’s equal protection claim warrants little discussion. To prevail on an equal protection challenge, the defendant must first show that the group alleged to be excluded is a distinct or cognizable group within the community. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (grand jury venire). A group is considered “cognizable” “only upon a showing . . . that the group has ‘a definite composition. That is, there must be some factor which defines and limits the group. A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected. Secondly, the group must have cohesion. There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process. Finally, there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved. That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace.' ” State v. Haskins, 188 Conn. 432, 438, 450 A.2d 828 (1982), habeas corpus granted sub nom. Alston v. Lopes, 621 F. Sup. 992 (D. Conn. 1985), aff’d sub nom. Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), cert. denied, 479 U.S. 1084, 107 S. Ct. 1285, 94 L. Ed. 2d 143 (1987); see also Willis v. Kemp, 838 F.2d 1510, 1514 (11th Cir. 1988), cert. denied sub nom. Willis v. Zant, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989).

Although Jews as a whole have been recognized as a “cognizable” group; see United States v. Gelb, 881 F.2d 1155, 1161 (2d Cir.), cert. denied, 493 U.S. 994, 110 S. Ct. 544, 107 L. Ed. 2d 541 (1989); it does not follow that the smaller class of observant Jews also constitutes a cognizable group. Applying the definition of “cognizable group” to observant Jews, we conclude that two of the elements of the definition have not been satisfied. First, there is no factor which defines and limits the group. Rather, a person who is an observant Jew one day, week or month may decide the following day, week or month not to observe to the same extent, or perhaps not at áll. Thus, membership in the group of “observant Jews” may shift from day to day or year to year. Therefore, the first element of “cognizability” has not been satisfied.

Second, it has not been shown that the interests of observant Jews could not be adequately protected if the group were excluded from the jury selection process. Willis v. Kemp, supra, 1514. There has been no showing that partiality or bias would result on the part of the remaining jurors in the absence of the small group of observant Jews who would choose not to serve on a jury on the first day of Passover. State v. Haskins, supra, 438.

We therefore conclude that observant Jews do not constitute a cognizable group for purposes of the defendant’s equal protection claim.

With regard to the defendant’s sixth amendment claim, we note that the defendant initially bears the burden of establishing a prima facie violation of the fair cross section requirement. State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984). He “ ‘must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ Duren v. Missouri, [439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979)].” State v. Castonguay, supra, 421-22.

The defendant’s claim fails to address the first two required showings; for this reason, and for want of an adequate factual basis in the record, this claim must fail. The defendant, for instance, has not shown what percentage of the population of the Waterbury judicial district is Jewish. We lack, therefore, a sufficient factual basis from which to determine whether Jews residing in the Waterbury judicial district are “sufficiently numerous and distinct”; see Duren v. Missouri, supra, 364; Taylor v. Louisiana, supra, 531; such that their systematic exclusion from jury panels would violate the fair cross section requirement. Id. Neither can we determine, given the dearth of statistical evidence, whether the representation of Jews in Waterbury panels of veniremen was fair and reasonable in relation to the number of Jews residing in the judicial district. Id. Relying for factual support solely on the affidavit and excerpt from the book, the defendant asserts no more than that the holding of jury selection on the first day of Passover worked systematically to exclude observant Jews from the jury selection process. “ ‘Substantiation of [this] claim . . . “requires something more than defense counsel’s speculation.” ’ State v. McClain, 171 Conn. 293, 294-95, 370 A.2d 928 (1976).” State v. Grant, 8 Conn. App. 158,160-61, 511 A.2d 369 (1986). This claim, lacking sufficient evidentiary support, cannot be sustained.

Finally, the defendant has failed to show that observant Jews were in fact systematically excluded from serving on his jury. At the hearing on this matter, the state called David Jackson, jury administrator, who testified that while the judicial department did not record the reasons given by prospective jurors for postponing jury service, the defendant was free to obtain the names and addresses of those persons who did postpone on the date in question, and to contact them in this regard. The defendant has offered no evidence that he did so and has not shown that a single person actually postponed jury service on account of Passover.

II

The defendant next claims that the trial court improperly limited his voir dire examination of a prospective juror who had served on a prior jury that had returned a verdict. Specifically, the defendant argues that he should have been permitted to ask the prospective juror whether the prior jury’s verdict was guilty or not guilty. The trial court sustained the state’s objection to this question. After the trial court rejected the defendant’s challenge for cause, he expended his last peremptory challenge to exclude this prospective juror. He claims that he was thus unable to exclude the twelfth juror, a woman whom he would have excluded had he not been forced to expend his last peremptory challenge in the manner described.

A criminal defendant is guaranteed the right to exercise peremptory challenges in the selection of his jury. Conn. Const., art. I, § 19, as amended by art. IV of the amendments to the constitution; General Statutes § 52-240. Additionally, “General Statutes § 54-82f provides the right to a voir dire examination of each prospective juror in a criminal action. It is firmly established therefore that ‘[t]he right to question each juror individually by counsel shall be inviolate.’ See, e.g., State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987).” State v. Fritz, 204 Conn. 156, 160-61, 527 A.2d 1157 (1987). “The extent of the voir dire examination rests largely within the discretion of the trial court, and the exercise of such discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” Id., 161.

“[I]n exercising its discretion, the court should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. State v. Rogers, [197 Conn. 314, 318, 497 A.2d 387 (1985)].” Id. The defendant, relying upon the distinction drawn in Fritz, claims that although the issue of whether the prospective juror’s prior jury returned a verdict of guilty or not guilty “has nothing particularly to do with fitness to serve, it has everything to do with the possible predispositions of a juror in a criminal trial and, thus, with the intelligent exercise of a peremptory challenge.” We disagree with the defendant’s reasoning.

A jury is presumed to have followed the trial court’s instructions. State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987). A criminal jury’s sole function is to set aside the personal prejudices of its individual members, to weigh dispassionately the evidence set before it, and, on the basis of the trial court’s instructions, to determine whether the state has proved the defendant’s guilt beyond a reasonable doubt. See State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Asherman, 193 Conn. 695, 739, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). That a jury returns a verdict of guilty in a given case, therefore, has nothing to do with the “possible predispositions” of a juror, and everything to do with the particular factual and legal contours of the case as it was presented to the jury. Standing alone, the fact that a jury returns a guilty verdict is not probative of the personal views of the individual jurors. The trial court did not abuse its discretion in sustaining the state’s objection to the defendant’s question.

Ill

The defendant next claims that the trial court improperly limited his cross-examination of an important state’s witness, thus abridging his right of confrontation under the sixth amendment to the federal constitution. The following facts are pertinent to this claim.

On cross-examination, the defendant asked the witness whether she had “previously falsely accused others of committing serious crimes.” She said, “No, that’s not true.” The defendant then inquired whether the witness had “previously accused Pier] own lawyer of raping [her].” The state objected to the question and the jury was excused. In the absence of the jury, the witness answered the question with, “Yes, it is true.” The state contended that the defendant was questioning the witness on a collateral matter, and elicited from the witness a statement that she had made the accusation and that it was true. After defense counsel’s legal arguments against the state’s objection failed, he alleged that the witness’ accusation of rape was not true, her assertions to the contrary notwithstanding. Defense counsel alleged that the witness had “made a statement to third parties in which she specifically referred to the incident with that lawyer and stated that this was not a rape, that there was not intercourse, but rather simply that the lawyer had made a pass which she had rebuffed, and that was the end of it. . . . [W]e have specific proof from her own lips in which ‘a’, she accused him of raping her; ‘b’, she repudiated it.” The court sustained the state’s objection. Upon the jury’s return, the witness was again asked whether her accusation against her lawyer was true. She answered, “Yes.” Thereupon the court struck both the question and the answer.

The confrontation clause of the sixth amendment to the federal constitution guarantees criminal defendants the right to cross-examine adverse witnesses. United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). This guaranty is not, however, infinite. “The constitution does not require that the defendant be permitted to present every piece of evidence he wishes . . . .” State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). The confrontation clause requires only that the defendant be afforded “ ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987), quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). (Emphasis in original.) The sixth amendment is satisfied when an accused is given sufficient latitude on cross-examination to expose to the jury sufficient facts to permit the jury to draw inferences relating to a witness’ reliability. State v. Kelly, supra, 375.

The sixth amendment guarantee of the right of cross-examination does not include “all evidence that is the least bit probative of credibility . . . .” United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988). In this case, the purportedly false allegation of rape was unrelated to the crimes at issue and would have been only weakly probative of general credibility. Evidence on this subject would not have been constitutionally mandated. Id., 1089. The probative value of the allegation was further weakened by Souza’s insistence during defense voir dire that the allegation was true, a contention that was never challenged by contrary evidence. Moreover, the rest of the cross-examination of Souza was sufficient to satisfy the sixth amendment. Latitude was granted to the defense on cross-examination to elicit from Souza sufficient facts to draw inferences concerning her reliability. Her belief that she would benefit from her testimony by receiving favorable treatment in her posttrial incarceration was sufficient for the jury to draw inferences concerning her reliability. The trial court properly declined to grant the defendant further latitude in cross-examination.

IV

The defendant next claims that the.trial court improperly permitted Vega, a state’s witness, to testify about statements made to her, in the absence of the defendant, by Pelletier, the defendant’s coconspirator, concerning the commission of the crimes. Pelletier allegedly made these statements after the commission of the robberies and shootings, during the time that he and the defendant were transferring the money and valuables from their pickup truck to the defendant’s basement. The trial court overruled the defendant’s objection to the admission of Vega’s testimony, ruling that her testimony was admissible under the coconspirator exception to the hearsay rule.

“[I]t is well established that a co-conspirator’s [hearsay] statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause. State v. Spencer, 198 Conn. 506, 513, 503 A.2d 1165 (1986)”; State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989); see also Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). The trial court’s ruling turned, as does ours, on the question of when the conspiracy ended. The defendant argues that the conspiracy had achieved its principal objectives prior to Pelletier’s statement to Vega; the state argues to the contrary.

This precise issue, based on a nearly identical factual background, presented itself in the coconspirator Pelletier’s appeal. State v. Pelletier, supra. In that case, Couture was alleged to have made a statement to his wife regarding the crimes immediately before he and Pelletier unloaded the pickup truck. This court held that, as Pelletier and Couture had conspired to steal money, transport it to Couture’s house and store it in his basement, Couture’s statement, made before the goods had been transported from the truck to the basement, occurred while the conspiracy was still ongoing. Id., 577. The evidence introduced in the present case warrants the same holding with regard to the statement made by Pelletier while the goods were being moved to the basement.

The defendant argues, however, that, subsequent to our decision in Pelletier, federal courts, in two decisions; United States v. Serrano, 870 F.2d 1, 9 (1st Cir. 1989); United States v. Vowiell, 869 F.2d 1264, 1267 (9th Cir. 1989); have held that, with regard to the confrontation clause, the coconspirator exception is only available if the e/i-ie/objective of the conspiracy is ongoing. According to the defendant, statements made during a “lingering conspiracy to conceal” are inadmissible.

We assess the significance of Serrano and Vowiell differently. In Vowiell, the main objective of the conspiracy was to escape from prison. The conspiracy was deemed to have ended when the escapees reached a place of temporary safety; United States v. Vowiell, supra, 1268-70; and the co-conspirator statements made thereafter were ruled inadmissible because they took place outside the scope of the conspiracy. Id. In Serrano, the statements in question were made in an attempt to conceal a conspiracy that had long since collapsed. See United States v. Serrano, supra, 7-9. As in Vowiell, the Serrano court ruled the statements inadmissible because the chief aim of the conspiracy was past when the statements were made. Id., 9. But see United States v. Medina, 761 F.2d 12, 18 (1st Cir. 1985) (conspiracy continued so long as coconspirators were acting together to destroy incriminating evidence).

These cases do not purport to limit, other than factually, the general rule rendering coconspirators’ statements admissible that was established by the United States Supreme Court; see Grunewald v. United States, 353 U.S. 391, 405, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957); and relied upon by this court in Pelletier. In the present case, as in Pelletier, the coconspirator’s statements were made while the defendant and Pelletier were acting together to transport stolen goods to a safe hiding place. Pelletier’s statement, therefore, was made while the conspiracy was ongoing, not after the termination of the conspiracy (Vowiell), or as part of a secondary conspiracy to conceal (Serrano). The defendant’s reliance on Serrano and Vowiell is misplaced, and the trial court properly admitted Vega’s testimony regarding Pelletier’s statement.

V

The final claim of the defendant was that the trial court should not have denied his motion to suppress the evidence seized from his home. This issue was briefed, argued and thoroughly analyzed in Couture I, supra, 536-48. We are unpersuaded that we should revisit this issue and accordingly adhere to the conclusion reached in Couture I.

The judgment is affirmed.

In this opinion the other justices concurred.

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

       Although the defendant mentions in his argument that a coconspirator’s statement must be made not only contemporaneously with the conspiracy, but also in furtherance of it; State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989); he does not brief an argument that Pelletier’s statement was not made in furtherance of the conspiracy. Any challenge to the admission of Pelletier’s statement on this ground is, therefore, deemed abandoned. Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983).