Opinion
No. HDSP-157225
June 22, 2011
MEMORANDUM OF DECISION
This is a summary process action for possession of the subject premises at 96 Wyllys Street, Glastonbury, Connecticut. On May 11, 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 an area within fifteen hundred feet of Housing Authority property), or allowing the same to be used, for the illegal sale of drugs and/or the illegal possession of drugs. In an amended answer, the appearing defendant, Sheila Smith, denies the substance of the claim and asserts a special defense claiming that a named co-defendant is not a resident and that the alleged drug sale occurred without her knowledge. The other named defendants have not appeared in this matter, although they were all called as defense witnesses.
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 plaintiffs claim that the defendants 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 . . ."using the premises or allowing the premises to be used for . . . the illegal sale of drugs or, in the case of a housing authority, using any area within fifteen hundred feet of any housing authority property in which the tenant resides for the illegal sale of drugs." Conn. Gen. Stat. § 47a-15 (D).
Shifting Burden
In the instant matter, the landlord is a housing authority. 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 or, in the case of a landlord that is a housing authority, the premises or any area within fifteen hundred feet of any housing authority property 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., CT Page 12410 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).
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 July 27, 2009, the plaintiff and the defendant entered into a written lease agreement for possession of the subject premises;
2. The written lease agreement between the parties was for the term of one year (October 1, 2009 through September 30, 2010);
3. Paragraph 16 of the written lease agreement indicates that the plaintiff can terminate the lease agreement based on "any violent or drug-related criminal activity on or off the premises . . ." (Exhibit 1, paragraph 16, section m);
4. In October, 2009 the defendant signed a copy of a Rider specifically informing her of her legal obligations as a tenant to refrain from allowing conduct constituting criminal activity at the subject premises. This rider specifically defined "drug related criminal activity" for the benefit of the defendant (Plaintiff's Exhibit 3);
5. In November, 2009, the defendant signed a copy of the Plaintiffs rules and regulations, including a provision informing the defendant the "illegal drugs are strictly prohibited" and that "Tenants and Tenant's household members, visitors or guests violating this [drug] prohibition will subject the Tenant head of household as well any and all other family members to immediate termination of their lease . . ." (Exhibit 2, paragraph 9);
6. The defendant's monthly rent payment is $239.00 per month (Exhibit 3);
7. The plaintiff is the owner / lessor of the premises;
8. The subject premises are located at 96 Wyllys Street, Glastonbury, Connecticut;
9. On or about May 28, 2010, the plaintiff caused a proper notice to quit possession to be served on the defendants to vacate the premises on or before June 20, 2010;
10. 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 Tyrone Canino
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, April and May, 2010, Tyrone Canino was an occupant of the subject premises with the knowledge of the other named defendants. Eye witness testimony and Connecticut Department of Motor Vehicle operator's license and vehicle registration information supports the finding that Tyrone Canino was a resident of the subject premises during the relevant period.
Specifically, records from prior police contact with Tyrone Canino during which he reported his address as being the subject premises. Officer Adduci testified that during an interview in July, 2009, Tyrone Canino reported a home address at the subject premises. Officer Barrett testified that he saw Tyrone Canino at the subject premises two to three times weekly during the afternoon and evening hours during the spring of 2010. Additionally, motor vehicle records show Tyrone Canino's vehicle is registered to the subject premises (Plaintiffs Exhibit 10). This registration information was updated by Tyrone Canino as recently as December, 2010. Further, Tyrone Canino's operator's license information lists his address as the subject premises (Plaintiff's Exhibit 11). Finally, Plaintiff's employees testified to seeing Tyrone Canino frequently within the subject premises during the time period surrounding the May 2010 arrest.
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.
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. Synakom, 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).
The court makes the following additional findings of fact by a fair preponderance of the evidence:
1. Detective David Goncalves is employed an as officer by the Glastonbury Police Department;
2. Detective Goncalves has been an employee of the Glastonbury Police Department for approximately six years and makes hundreds of arrests annually;
3. Detective Goncalves has been involved with the Regional Narcotics Task Force for approximately the past two years;
4. Detective Goncalves was directly involved in the investigation, surveillance and arrest of Tyrone Canino as a suspect in the sale of illegal drugs in and around the subject premises in 2010;
5. In the early spring of 2010 the Glastonbury Police Department began surveillance of Tyrone Canino and the subject premises from 99 Wyllys Street. Wyllys Street is within sight of 99 Wyllys Street.
6. A confidential informant supplied the Glastonbury Police Department with information that "crack" cocaine was being sold from 96 Wyllys Street, the subject premises, by Tyrone Canino;
7. The confidential informant introduced an undercover police officer to Tyrone Canino to facilitate the purchase of "crack" cocaine;
8. The undercover police officer was outfitted with electronic audio surveillance equipment that allowed Detective Goncalves to monitor the undercover police officer's interactions;
9. On two separate occasions in April, 2010, Tyrone Canino sold substances to the undercover police officer;
10. The substances were tested with a re-agent field test kit;
11. The substances yielded presumptive positive results for the presence of cocaine, The results of these field tests, in conjunction with the corroborating evidence surrounding the circumstances of the drug surveillance, transactions and seizure of the substances, establish by a fair preponderance of the evidence that the substances seized and tested were cocaine;
12. The substance seized, cocaine, was in "free base" form, also known as "crack" cocaine;
13. A total of approximately 4.5 grams of crack cocaine, with an estimated street value of $300.00, was purchased from Tyrone Canino;
14. Prior to both drug transactions, Tyrone Canino entered into and exited the subject premises immediately before the drug transactions;
15. The first drug transaction took place on the front steps of the subject premises;
16. Prior to the first drug transaction, Tyrone Canino drove to the subject premises in a vehicle registered to Shelia Smith;
17. The second drug transaction took place outside of the front door of the subject premises;
18. Prior to the second drug transaction, Tyrone Canino was already within the subject premises;
19. Tyrone Canino was arrested on May 26, 2010 inside the subject premises;
20. Defendant Sheila Smith was not employed during the period in question;
21. Tyrone Canino had a key to the subject premises;
22. Defendant Sheila Smith often left the door to the subject premises unlocked;
23. The defendants were unable to provide any documentation in support of their assertion that Tyrone Canino lives other than the subject premises.
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 premises in which the defendants reside have been used for the illegal sale of drugs, 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, the court is not persuaded that the defendants, including Sheila Smith, had no knowledge of the complained of drug activity within and without her home. Accordingly, this court finds that the defendant has failed to sustain her burden.
SPECIAL DEFENSE
The Defendant asserts in his first special defense that Tyrone Canino was not a resident of the premises and has not been for the last eight years. The defendant further asserts that the drug transaction occurred without the consent or knowledge of Ms. Smith. Based on the court's previous findings of fact, this court finds that the defendant has failed to establish this special defense by a fair preponderance of the evidence.
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.