State v. Fernandez, 733 A.2d 229 (Conn. 1999). · Go Syfert
Search
State v. Fernandez, 733 A.2d 229 (Conn. 1999). Cases Citing This Book View Copy Cite
“the trial court properly granted the motion for summary judgment on the basis of its conclusion that the defense . . . failed to attack the making, validity or enforcement of the notes and mortgages”
143 citation events (100 in the last 25 years) across 6 distinct courts.
Strongest positive: Tamm v. Gangitano, No. Cv 990175640 S (Oct. 23, 2000) (connsuperct, 2000-10-23)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 18 distinct citers.
discussed Cited as authority (quoted) Tamm v. Gangitano, No. Cv 990175640 S (Oct. 23, 2000)
Conn. Super. Ct. · 2000 · signal: see · quote attribution · 1 verbatim quote · confidence high
the trial court properly granted the motion for summary judgment on the basis of its conclusion that the defense . . . failed to attack the making, validity or enforcement of the notes and mortgages
discussed Cited as authority (quoted) Phh US Mortgage Corporation v. Roman, No. 551906 (Feb. 16, 2000)
Conn. Super. Ct. · 2000 · signal: see · quote attribution · 1 verbatim quote · confidence high
the trial court properly granted the motion for summary judgment on the basis of its conclusion that the defense . . . failed to attack the making, validity or enforcement of the notes and mortgages
discussed Cited "see" U.S. Bank National Assn. v. Blowers (2×)
Conn. · 2019 · signal: accord · confidence high
When a mortgagee's conduct is inequitable, "a trial court in foreclosure proceedings has discretion ... to withhold foreclosure or to reduce the amount of the stated indebtedness." Hamm v. Taylor , 180 Conn. 491 , 497, 429 A.2d 946 (1980) ; accord Southbridge Associates, LLC v. Garofalo , 53 Conn. App. 11 , 15, 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
discussed Cited "see" State v. Purcell (2×)
Conn. App. Ct. · 2017 · signal: accord · confidence high
Accord State v. Fernandez , 52 Conn.App. 599 , 615, 728 A.2d 1 (declining defendant's invitation to exercise our supervisory authority "[b]ecause acceptance of the defendant's invitation would require this court to exercise our supervisory powers outside the conduct of judicial actors"), cert. denied, 249 Conn. 913 , 733 A.2d 229 , cert. denied, 528 U.S. 939 , 120 S.Ct. 348 , 145 L.Ed.2d 272 (1999).
discussed Cited "see" Pearson v. United States
D. Mass. · 2012 · signal: see · confidence high
See Southbridge Assoc. v. Garofalo, 53 Conn. App. 11 , 728 A.2d 1114, 1119 (1999) cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999) (under Connecticut law, generally, “there exists no fiduciary relationship merely by virtue of a borrower lender relationship between a bank and its customer.”); see also Pearson, 831 F.Supp.2d at 519 .
discussed Cited "see" Forte v. Citicorp Mortgage, Inc. (2×)
Conn. App. Ct. · 2005 · signal: see · confidence high
See Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 16-17 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
cited Cited "see" Lasalle National Bank v. Shook
Conn. App. Ct. · 2001 · signal: see · confidence high
See Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 15-16 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
cited Cited "see" New Haven Savings Bank v. LaPlace
Conn. App. Ct. · 2001 · signal: see · confidence high
See Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
cited Cited "see" First Nationwide Mortgage Corporation v. Gooden, No. 555982 (May 25, 2001)
Conn. Super. Ct. · 2001 · signal: see · confidence high
See Southbridge Associates, LLC v. Garofalo , 53 Conn. App. 11 , 15 , 21 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
cited Cited "see" Berkowitz v. City of Stamford, No. Cv97 0158193 S (Jan. 22, 2001)
Conn. Super. Ct. · 2001 · signal: see · confidence high
See Edelman v. Pacific Employers Insurance Co ., supra, 53 Conn. App. 59 , cert. denied, 249 Conn. 918 , 733 A.2d 229 (1999).
cited Cited "see" Daly v. Town of Windham, No. Cv-99-0061834-S (Jan. 3, 2001)
Conn. Super. Ct. · 2001 · signal: see · confidence high
See id.
discussed Cited "see, e.g." Wells Fargo Bank Minnesota, N.A. v. Handy, No. 0561694 (Feb. 26, 2003)
Conn. Super. Ct. · 2003 · signal: see also · confidence low
New Haven Savings Bank v. LaPlace , 66 Conn. App. 1 , 9 , 783 A.2d 1174 , cert. denied, 258 Conn. 942 (2001) (affirming the trial court's decision granting summary judgment against the defendant on the ground that his counterclaims were not related to the making, validity or enforcement of the note); see also Southbridge Associates, LLC v. Garofalo , 53 Conn. App. 11 , 16-17 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
discussed Cited "see, e.g." Adametz v. Adametz, No. Cv 98 008 64 69 (Aug. 27, 2002)
Conn. Super. Ct. · 2002 · signal: see also · confidence low
Spencer Co ., supra, 378-79; see also Kramer v. Petisi , 53 Conn. App. 62 , 71 , 728 A.2d 1097 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999), citing Lazoff v. Padgett , 2 Conn. App. 246 , 250 , 477 A.2d 155 , cert. denied, 194 Conn. 806 , 482 A.2d 711 (1984) (`"`possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title-of such other'"').
discussed Cited "see, e.g." Top of the Town, LLC v. Somers Sportsmen's Ass'n
Conn. App. Ct. · 2002 · signal: see also · confidence low
Spencer Co., supra, 378-79; see also Kramer v. Petisi, 53 Conn. App. 62, 71 , 728 A.2d 1097 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999), citing Lazoff v. Padgett, 2 Conn. App. 246, 250 , 477 A.2d 155 , cert. denied, 194 Conn. 806 , 482 A.2d 711 (1984) (“ ‘possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other’ ”).
discussed Cited "see, e.g." LLP Mortgage, Ltd. v. Fr, L.L.C., No. 558476 (Jan. 31, 2002)
Conn. Super. Ct. · 2002 · signal: see also · confidence low
Further, based on the same rationale, the defenses . . . cannot attack some act or procedure of the lienholder. . . .' (Internal quotation marks omitted.) First Nationwide Mortgage Corp. v. Murphy , Superior Court, judicial district of New London, Docket No. 550981 (November 19, 1999, Martin, J. ); see also Southbridge Associates, LLC v. Garofalo , 53 Conn. App. 11 , 15-16 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999) (Trial court properly granted the motion for summary judgment because the special defense did not attack the making, validity or enforcement of the notes an…
discussed Cited "see, e.g." Truglio v. Hayes Construction Co.
Conn. App. Ct. · 2001 · signal: see also · confidence low
See also Kramer v. Petisi, 53 Conn. App. 62, 70 , 728 A.2d 1097 (“ ‘a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment’ ”), cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
discussed Cited "see, e.g." Grechika v. Liberty Mutual Fire Ins. Co., No. Cv 00 0159540 (Jul. 5, 2001)
Conn. Super. Ct. · 2001 · signal: see also · confidence low
See also Edelman v. Pacific Employers Insurance Co ., 53 Conn. App. 54 , 59 , 728 Aid 531, cert denied, 249 Conn. 918 , 733 A.2d 229 (1999) (If the underlying complaint has alleged a mere possibility of coverage under the policy, the insurer must defend.).
cited Cited "see, e.g." Lake v. Lake, No. Cv00 0176220 (Jan. 8, 2001)
Conn. Super. Ct. · 2001 · signal: see also · confidence low
See Id., 442-45 ; see also Southbridge Associates LLC v. Garofalo , 53 Conn. App. 11 , 15 , 728 A.2d 1114 , cert. denied, 249 Conn. 919 , 733 A.2d 229 (1999).
STATE OF CONNECTICUT
v.
JOSEPH FERNANDEZ III
Supreme Court of Connecticut.
Jun 9, 1999.
733 A.2d 229
Lisa J. Steele, special public defender, in support of the petition., Richard F. Jacobson, assistant state’s attorney, in opposition.
Berdon.
Cited by 10 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: bottom 75%
Citer courts: Connecticut Superior Court (2)

The defendant’s petition for certification for appeal from the Appellate Court, 52 Conn. App. 599 (AC 18201), is denied.

BERDON, J.,

dissenting. In cases involving the admissibility of confessions,[1] I am now convinced more than ever that our state constitution requires the state to prove two matters beyond a reasonable doubt: (1) the defendant did in fact make a confession; and (2) this confession was made voluntarily, knowingly and intelligently. I am also convinced that — absent extraordinary circumstances — the government can satisfy this burden only by electronically recording the entire encounter between the defendant and the agents of the state, starting with the administration of Miranda[2] warnings.

The facts of this case starkly illustrate why it is necessary both to (1) increase the burden of persuasion and (2) require the state to meet this burden by recourse to an electronic record. Some time after 9:30 p.m. on the evening of April 29,1995, five police officers appeared at the home of the eighteen year old defendant, Joseph Fernandez III. The defendant agreed to accompany these officers to the police station. Once they arrived[*914] at the station, the defendant was asked if he wished to give a statement regarding a recent shooting.[3]

From this point on, the testimony in this case was fraught with contradictions. According to one police officer, the defendant allegedly confessed, “I shot him— I shot them.” The defendant denied making this confession. Two other officers who were present did not corroborate the allegation made by their fellow officer. Although the trial court observed that the testimony was three to one that the defendant did not confess,[4] this observation did not prevent the court from admitting the confession into evidence. The defendant was convicted, and the Appellate Court affirmed the defendant’s conviction on the following ground: “[We do] not retry the case or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) State v. Fernandez, 52 Conn. App. 599, 603, 728 A.2d 1 (1999).

I

I have previously explained that “valid and compelling historical reasons exist to require under the state constitution that the state has the burden of proving that a confession [was made and was] voluntary beyond a reasonable doubt. . . . [T]he value the framers of our state constitution placed on the right to remain silent is evident and important in determining the contours of the state constitutional protection. State v.[*915] Geisler, [222 Conn. 672, 685, 610 A.2d 1225 (1992)]. Zephariiah Swift, a leading jurist ... of 1818, wrote in his treatise on the law that the confession must be perfectly voluntary: for if the least degree of influence appear to be exercised over the prisoner’s mind, to induce him to disclose his guilt, the whole will be rejected. . . . 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 408. Justice Swift also pointed out in his treatise on evidence that voluntary confessions are deemed to be the most conclusive evidence . . . . Z. Swift, A Digest on the Law of Evidence (1810) p. 133. He noted, however, that [t]here is, perhaps, no part of evidence in which there is so much misrepresentation and fabrication, as in testifying to the confession of a party. Id., p. 149. . . . State v. Stanley, [223 Conn. 674, 698-99, 613 A.2d 788 (1992)] (Berdon, J., dissenting). Indeed, in this state the salutary principle embodied in the constitution — that no man is bound to criminate himself — has ever been rigidly adhered to. State v. Coffee, 56 Conn. 399, 415, 16 A. 151 (1888). . . .

“Blackstone, in formally shaping the contours of our common law, wrote: [I]ndeed, even in cases of felony at the common law, [confessions] are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. 4 W. Blackstone, Commentaries on the Laws of England (1807) p. 357. State v. Stanley, supra, 223 Conn. 699 (Berdon, J., dissenting).” (Emphasis in original; internal quotation marks omitted.) State v. James, 237 Conn. 390, 451-52, 678 A.2d 1338 (1996) (Berdon, J., dissenting).

In an effort to minimize the danger that inheres in permitting the trier of fact to consider such evidence,[*916] “[e]very state but one in the northeast has adopted a standard of proof in excess of the preponderance of the evidence to determine the voluntariness of a confession. See State v. Collins, 297 A.2d 620 (Me. 1972) (reasonable doubt); Commonwealth v. Mandile, 397 Mass. 410, 492 N.E.2d 74 (1986) (same); State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985) (same); State v. Franklin, 52 N.J. 386, 245 A.2d 356 (1968) (same); People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965) (same); State v. Arpin, 122 R.I. 643, 410 A.2d 1340 (1980) (clear and convincing). Other states have also come to the same conclusion adopting the reasonable doubt standard. Snellgrove v. State, 569 N.E.2d 337 (Ind. 1991); Bradley v. Commonwealth, 439 S.W.2d 61 (Ky. 1969), cert. denied, 397 U.S. 974, 90 S. Ct. 1091, 25 L. Ed. 2d 268 (1970); Jones v. State, 461 So. 2d 686 (Miss. 1984); State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985) (same), overruled in part on other grounds, State v. Torrence, 305 S.C. 45, 70, 406 S.E.2d 315 (1991); State v. Janis, 356 N.W.2d 916 (S.D. 1984); State v. Owens, 148 Wis. 2d 922, 436 N.W.2d 869 (1989). We should join these jurisdictions.” State v. James, supra, 237 Conn. 452-53 (Berdon, J., dissenting).

Moreover, common sense dictates that the state must prove beyond a reasonable doubt (1) that the defendant confessed and (2) that he did so voluntarily, knowingly, and intelligently. In order to convict a criminal defendant, we require the state to prove its case beyond a reasonable doubt. Since a confession by the accused is tantamount to a conviction, it is only logical to require that the state must prove both the existence and the constitutionality of a confession beyond a reasonable doubt.

II

We should also grant certification in order to determine whether evidence of a statement by a criminal[*917] defendant is per se inadmissible unless the police recorded the entire encounter between the accused and the agents of the state, starting with the administration of Mirando, warnings. In my view, such a regime would go a long way toward assuring that the accused actually made a disputed statement. In addition, it is the only certain way to enable the state to satisfy its burden of proving beyond a reasonable doubt (1) that the defendant in fact confessed and (2) that the confession was made voluntarily, knowingly and intelligently.

As Judge Fitzgerald put it in People v. Fike, 228 Mich. App. 178, 577 N.W.2d 903 (1998): “The court system is entitled to receive the best evidence available in order to resolve the serious criminal matters that come before it. A logical consequence of this principle is the need for the consistent systematic recording of all interviews of a detained accused conducted by law enforcement officials.” Id., 190 (Fitzgerald, J., concurring and dissenting). “[A] recordation of all prestatement conversations and interrogation will afford a reviewing court an objective record on which to rule. ... A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement. . . . The courts are therefore presented with a situation in which the police, with only a minimal expenditure of effort and money, have the technical capability to preserve vital testimony to assure that the accused’s rights have been observed and to validate the integrity of the actual interrogation.” (Citations omitted.) Id., 188-89 (Fitzgerald, J., concurring and dissenting).

Judge Fitzgerald concluded his opinion by stating that “[a recording requirement], where feasible ... is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self-incrimination, and his right to a fair trial.” Id., 190.

Lisa J. Steele, special public defender, in support of the petition. Richard F. Jacobson, assistant state’s attorney, in opposition. Decided June 9, 1999

Accordingly, I dissent from this court’s denial of the defendant’s petition for certification to appeal.

1

I use the term “confessions" to include all statements that may tend to incriminate the defendant.

2

Miranda, v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3

The Appellate Court believed that the defendant was not subjected to the “inherently coercive, police-dominated atmosphere” of custodial interrogation. State v. DesLaurier, 230 Conn. 572, 581, 646 A.2d 108 (1994); see State v. Piorkowski, 236 Conn. 388, 404-405, 672 A.2d 921 (1996). I disagree. Because I believe that even noncustodial interrogations must be electronically recorded from the moment the police administer Miranda warnings, however, this disagreement is not outcome determinative.

4

The trial court prefaced its ruling at the suppression hearing with the following remark: “To say that the testimony of the state’s witnesses and the testimony of the defense’s witnesses conflicted would be, obviously, an understatement.”