Opinion
No. NBSP-056244
October 21, 2011
MEMORANDUM OF DECISION
This is a summary process action for possession of the subject premises at 86 Jerome Drive, New Britain, Connecticut. On July 28 and September 9, 2011, the parties appeared before the court for trial on the one-count complaint. The plaintiff alleges that as to the subject property, the defendants have failed to conduct themselves and/or require other persons on the premises with their consent to conduct themselves, in a manner that does not constitute a serious nuisance. Additionally, the plaintiff asserts that the defendants participated in conduct constituting a serious nuisance, namely using the premises, or allowing the same to be used, for the illegal sale of drugs. In her answer, the appearing defendant, Mayra Serrano, denies the substance of the claim. The other named defendants have not appeared in this matter.
The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.
BURDEN OF PROOF
"While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop Shop, 29 Conn.App. 519, 523, cert. denied. 224 Conn. 923 (1982). Failure to do so results in judgment for the defendant. Id. ". . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged." Pamela B. v. Ment, 244 Conn. 296, 308 (1998).
STANDARD OF PROOF
The standard of proof in summary process actions, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).
ESSENTIAL ELEMENTS OF THE CLAIM
In a summary process action based on the plaintiff's claim that the defendant's conduct constituted a serious nuisance sufficient for the plaintiff to obtain possession of residential premises, the plaintiff must prove, by a fair preponderance of the evidence: (1) The existence of a rental agreement (oral or written; weekly or monthly or yearly); (2) The plaintiff is lessor or owner of the premises; (3) The address of the subject premises; (4) The substance of the serious nuisance complained of; (6) Proper service of a notice to quit, including service date and termination date; and (7) That the defendant is still in possession of the premises. Conn. Gen. Stat. § 47a-23(a)(1)(G); Cardinal Realty Investors v. Bernasconi, 2006 Ct.Sup. 5030 (April 13, 2007, Bentivegna, J.).
Connecticut General Statutes § 47a-11: Tenant Responsibilities
The law imposes certain legal obligations on tenants. As it relates to the instant matter, the law dictates that "[a] tenant shall . . . conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15." (Emphasis added.) Conn. Gen. Stat. § 47a-11(g).
Tenant Noncompliance with Statutory Responsibilities: Serious Nuisance
"Serious nuisance is more than a nuisance. It is more than a material noncompliance with the tenant's duties . . ." Quiles v. Martinez, 1995 Ct.Sup. 1069, 15 Conn. L. Rptr. 114 (June 30, 1995, Tierney, J.).
As it relates to the specific claim of serious nuisance in the instant matter, the legislature defines serious nuisance as ". . . (A) . . . threatening to inflict [bodily] harm [upon another tenant or the landlord] with the present ability to inflict such harm and under circumstances which would lead a reasonable person to believe that such a threat will be carried out, . . . (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord, or (D) using the premises or allowing the premises to be used for . . . the illegal sale of drugs . . ." Conn. Gen. Stat. § 47a-15.
Shifting Burden
In a summary process action claiming the serious nuisance of illegal sale of drugs, the law imposes a burden on the tenant in that . . ."If the landlord elects to evict based upon an allegation, pursuant to subsection (g) of section 47a-11, that the tenant failed to require other persons on the premises with his consent to conduct themselves in a manner that will not constitute a serious nuisance, and the tenant claims to have had no knowledge of such conduct, then, if the landlord establishes that the premises in which the tenant resides has been used for the illegal sale of drugs, the burden shall be on the tenant to show that he had no knowledge of the creation of the serious nuisance." Conn. Gen. Stat. § 47a-15(D); Housing Authority v. Harris, 225 Conn. 600, 606 (1993).
THE PLEADINGS
"The admission of the truth of an allegation [in a] pleading is a judicial admission conclusive on the pleader." Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199 (1971). "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594 (1909).
SPECIAL DEFENSES
"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint to demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 447 n. 10 (2005), cert. denied, 280 Conn. 933 (2006). The defendants have the burden of proving the allegations in their special defenses by a fair preponderance of the evidence. Lodovico v. Mihalcik, superior court, judicial district of Hartford at Hartford, Docket No. CV-07-50130991 (August 17, 2010, Rittenband, JTR).
CT Page 22339
THE PROCEEDINGS
"The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "Then determination of credibility as a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333 (2001)."[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . it is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . the trier of fact may accept or reject the testimony of any witness . . . the trier can, as well, decide what — all, none, or some — of the witnesses' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborne, 41 Conn.App. 287, 291 (1996). The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." In re Christine F., 6 Conn.App. 360, 366, cert. denied 199 Conn. 808 (1986).
FINDINGS OF FACT
1. On or about June 1, 1996, the plaintiff and the defendants entered into a written lease agreement for possession of the subject premises (Plaintiff's Exh. 4);
2. The written lease agreement between the parties was for the term of one year (September 30, 2004 through September 30, 2005), thereafter renewing by agreement of the parties;
3. On or about August 3, 2010, the defendant, Mayra Serrano and the plaintiff entered into a written agreement to extend the lease for an additional one-year term, to include the occupancy of Omil H. Serrano and Hector R. Serrano (also referred to as Hector, Jr.) and exclude Abdel Serrano (Plaintiff's Exh. 5);
4. The defendants' monthly rent payment is $340.00 per month (Exhibit 4, 5);
5. The plaintiff is the owner/lessor of the premises;
6. The subject premises are located at 86 Jerome Avenue, New Britain, Connecticut;
7. On or about April 22, 2011, the plaintiff caused a proper notice to quit possession to be served on the defendants to vacate the premises on or before May 7, 2011;
8. Although the time given the defendants to vacate in the notice to quit has passed, the defendants remain in possession of the premises;
Additional facts will be discussed as necessary.
The Residency of Hector Jr., Abdel and Omil H. Serrano
The plaintiff has presented sufficient evidence, both through the testimony of witnesses and the production of documentation, to establish, by a fair preponderance of the evidence, that during the period in question, September 2010 and specifically September 30, 2010, Hector R. Serrano, Jr. (date of birth: 1989), Omil H. Serrano and Abdel Serrano were occupants of the subject premises with the knowledge of the other named defendants, including Mayra Serrano. The testimony of Officer Donald Anderson and New Britain Police Department records support the finding (Plaintiff's Exh. 7, 8, 9, 13). Additionally, the documentation submitted to the plaintiff by Mayra Serrano in support of her application to extend the lease agreement lists Omil H. Serrano and Hector R. Serrano as occupants of the household as of August 2010 (Plaintiff's Exh. 5).
Illegal Sale of Drugs
Connecticut General Statutes § 21a-240, which defines words and phrases commonly used in the context of the illegal possession and sale of drugs, provides guidance to their use in the context of a summary process action:
(8) `Controlled drugs' are those drugs which contain any quantity of a substance which has been designated as subject to the federal Controlled Substances Act, or which has been designated as a depressant or stimulant drug pursuant to federal food and drug laws, or which has been designated by the Commissioner of Consumer Protection pursuant to section 21a-243, as having a stimulant, depressant or hallucinogenic effect upon the higher functions of the central nervous system and as having a tendency to promote abuse or psychological or physiological dependence, or both. Such controlled drugs are classifiable as amphetamine-type, barbiturate-type, cannabis-type, cocaine-type, hallucinogenic, morphine-type and other stimulant and depressant drugs . . . (9) `Controlled substance' means a drug, substance, or immediate precursor in schedules I to V, inclusive, of the Connecticut controlled substance scheduling regulations adopted pursuant to section 21a-243 . . . (50) `Sale' is any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . (58) `Cocaine in a free-base form' means any substance which contains cocaine, or any compound, isomer, derivative or preparation thereof, in a nonsalt form.
Conn. Gen. Stat. § 21a-240.
Possession of Narcotics with Intent to Sell: C.G.S. § 21a-277(a)
Connecticut General Statutes § 21a-277(a) provides additional guidance as to the application of the criminal statutes in the context of a summary process action:
(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.
Conn. Gen. Stat. § 21a-277(a).
Field Tests for Illegal Substances
Both the state Appellate and Supreme Courts have sustained criminal convictions of possession of illegal drugs where the nature of the substance was based on positive field tests. State v. Synakorn, 239 Conn. 427, 435-37, 685 A.2d 1123 (1996) (positive field test for marijuana); State v. Lee, 53 Conn.App. 690, 692-95, 734 A.2d 136 (1999) (positive field test for crack cocaine).
Evidence of a field test, in conjunction with other contextual corroborating evidence, is sufficient to establish the nature of the substance by a preponderance of the evidence. State v. Singleton, 274 Conn. 426, 442 (2005) (reliance on positive field test in violation of probation hearing).
Additional Findings of Fact and Conclusions of Law
The court makes the following additional findings by a fair preponderance of the evidence:
1. Officer Donald Anderson is employed an as officer by the New Britain Police Department;
2. Officer Anderson has been an employee of the New Britain Police Department since December 2005;
3. Officer Anderson has been involved with the Special Services division of the New Britain Police Department since January 2009 and has experience in cases involving illegal drugs and firearms;
4. Officer Anderson was directly involved in the investigation, surveillance, and arrest of Hector Serrano Jr. and Abdel Serrano as suspects in the possession and sale of illegal drugs and illegal possession of firearms in and around the subject premises;
5. On September 30, 2010, the New Britain Police Department, executed a search and seizure warrant at the subject premises (Plaintiff's Exh. 7);
6. During the execution of the search warrant, the New Britain Police Department located and seized four (4) packets of heroin, eight (8) "ecstacy" pills, and 1.9 grams of marijuana (Plaintiff's Exh. 7);
7. During the execution of the search and seizure warrant, officers located mail addressed to Hector Serrano Jr. in the bedroom he occupied (Plaintiff's Exhibit 7);
8. During the execution of the search and seizure warrant, officers located four packets of heroin in the bedroom occupied by Hector Serrano, Jr. (Plaintiff's Exh. 7);
9. During the execution of the search and seizure warrant, officers located a digital scale with cocaine residue in the bedroom occupied by Hector Serrano Jr. (Plaintiff's Exh. 7);
10. During the execution of the search and seizure warrant, officers located two (2) bags of marijuana in the bedroom occupied by Abdel Serrano. Earlier police officers witnessed Abdel Serrano secret these items in a part of the bedroom (Plaintiff's Exh. 7);
11. During the execution of the search and seizure warrant, officers located an unlabeled prescription pill bottle containing eight (8) pills of MDMA, also known as "ecstacy," an hallucinogen, in the bedroom occupied by Abdel Serrano (Plaintiff's Exh. 7);
12. During the execution of the search and seizure warrant, officers located marijuana secreted inside a sneaker in the bedroom occupied by Abdel Serrano (Plaintiff's Exh. 7);
13. The substances were tested with a re-agent field test kit (Plaintiff's Exh. 7);
14. The substances yielded presumptive positive results for the presence of cocaine, marijuana and MDMA. The results of these field tests, in conjunction with the corroborating evidence surrounding the circumstances of the drug seizure of the substances, including their being hidden within the premises, establish by a fair preponderance of the evidence that the substances seized and tested were illegal drugs (Plaintiff's Exh. 7, 10, 11, 13);
15. The number and packaging of the illegal drugs seized establishes their possession for purposes of sale, as opposed to the personal use of the possessors (Plaintiff's Exh. 7);
16. During the execution of the search and seizure warrant, Hector Serrano, Jr. threw a pillowcase containing a .45 caliber pistol, a .45 caliber magazine and six (6) .45 caliber rounds of ammunition out the window of the subject premises and into the backyard area outside of the premises (Plaintiff's Exh. 7);
17. During the execution of the search and seizure warrant, Hector Serrano, Jr. threw loose bullets out of the window of the subject premises and into the backyard area outside of the premises (Plaintiff's Exh. 7);
18. Hector Serrano, Sr. was present during the execution of the search and seizure warrant and impeded the progress of the search and seizure (Plaintiff's Exh. 7);
19. The firearm tossed from the window by Hector Serrano, Jr. was reported stolen from the town of Vernon, Connecticut (Plaintiff's Exh. 7);
20. Hector Serrano, Sr. does not reside at the subject premises with the knowledge and consent of the plaintiff;
21. Hector Serrano, Sr. resides at an address on Patton Drive, New Britain, Connecticut, also known as "Corbin Heights" (Plaintiff's Exh. 12);
22. On April 11, 2011, Hector Serrano, Jr. was convicted by guilty plea of Possession of Narcotics With Intent to Sell in violation of Connecticut General Statutes § 21a-277(a), related to the search of the premises on September 30, 2010 (Plaintiff's Exh. 10, 13);
23. On April 11, 2011, Hector Serrano, Jr. was convicted by guilty plea under the Alford Doctrine of Criminal Possession of a Firearm in violation of Connecticut General Statutes § 53a-217, related to the search of the premises on September 30, 2010 (Plaintiff's Exh. 10, 13);
24. On December 22, 2010, Abdel Serrano was convicted by guilty plea of possession of less than four (4) ounces of marijuana, in violation of Connecticut General Statutes § 21a-279(c) (Plaintiff's Exh. 11, 13);
25. On March 16, 2011, Hector Serrano, Sr. was convicted of Creating a Public Disturbance in violation of Connecticut General Statutes § 53a-181a, related to the search of the subject premises (Plaintiff's Exh. 12, 13);
26. The actions of Hector Serrano, Jr. in tossing a firearm, firearm magazine and ammunition out of a window and into the public backyard area constitutes conduct which presented an immediate and serious danger to the safety of other tenants;
27. Abdel Serrano and Hector Serrano, Jr. used the subject premises for the possession of illegal drugs with the intent to sell;
28. The plaintiff, pursuant to subsection (g) of section 47a-11, has established by a fair preponderance of the evidence, that the tenant has failed to require Hector Serrano, Jr. and Abdel Serrano to conduct themselves in a manner that did not constitute a serious nuisance.
The court finds that the plaintiff has established all the essential elements of its case by a fair preponderance of the evidence.
Shifted Burden
As the plaintiff has established that the actions of Hector Serrano, Jr. and Abdel Serrano constitutes a serious nuisance, pursuant to Connecticut General Statutes § 47a-15(C) and (D), the burden is on the defendant to establish that she had no knowledge of the creation of the serious nuisance. Conn. Gen. Stat. § 47a-15(D). Having considered the entirety of the evidence adduced at trial, and assessing the credibility of Mayra Serrano during her testimony, the court is not persuaded that the defendants, including Mayra Serrano, had no knowledge of the complained of drug activity and possession of firearms within her home. Accordingly, this court finds that the defendant has failed to sustain her burden.
WHEREFORE, The Court enters judgment for immediate possession of the subject properties in favor of the plaintiff. The non-appearing defendants are defaulted for failure to appear.