517 A.2d 644
(4607)Appellate Court of Connecticut
DUPONT, C. J., HULL and BORDEN, Js.
The state, with the permission of the trial court, appealed from that court’s judgment dismissing, with prejudice, certain gambling-related charges which had been brought against the defendants. That judgment was rendered following the suppression of certain evidence obtained in a wiretap. Held that the trial court erred in suppressing the wiretap evidence; accordingly, the matter was remanded for further proceedings.
Argued October 14, 1986 —
Decision released November 18, 1986
Information charging the defendant Anthony Iovine with four counts of the crime of professional gambling, four counts of the crime of using a telephone to transmit or receive gambling information and one count of the crime of conspiracy to commit professional gambling, and informations charging the defendant Robert Ingoldsby, Jr., with seven counts of the crime of using a telephone to transmit or receive gambling information, seven counts of the crime of professional gambling, one count of the crime of conspiracy to commit professional gambling and one count of the crime of destruction of property, and information charging the defendant Peter Bastianello with the crime of possession of gambling records, brought to the Superior Court in the judicial district of Litchfield, geographical area number eighteen, where the court, Maloney, J.’ granted the defendants’ motions to suppress certain wiretap evidence and, thereafter, rendered judgment dismissing
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the informations, from which the state, with the permission of the trial court, appealed to this court. Error; further proceedings.
John M. Massameno, assistant state’s attorney, with whom, on the brief was David Shepack, deputy assistant state’s attorney, for the appellant (state).
John A. Gawrych, with whom, on the brief, was Joseph F. Keefe, for the appellees (defendants).
BORDEN, J.
These are wiretap cases in which the trial court granted the defendants’ motions to suppress on the bases that (1) the issuing panel did not state the `grounds” of its probable cause determinations, as required by General Statutes 54-41e, and (2) the panel made findings of probable cause in the alternative. The state filed a consolidated appeal with the permission of the trial court. The trial court’s decision was issued prior to our opinions in State v. Chiarizio, 8 Conn. App. 673, 514 A.2d 370 (1986), and State v. Levine, 5 Conn. App. 207, 497 A.2d 774 (1985), which are dispositive and require a finding of error.
The defendants attempt to offer alternate grounds for affirming the decision of the trial court, namely, that the affidavit supporting the issuance of the wiretap order was insufficient to establish probable cause as to other normal investigative procedures; see General Statutes 54-41c (6); and that the affidavit does not pass the statutory Aguilar-Spinelli test. See State v. Ralston, 7 Conn. App. 660, 510 A.2d 1346 (1986). The state responds that we should not consider these alternate grounds. The appeal was filed under the appellate rules in existence prior to October 1, 1986. Those rules required an appellee to file a preliminary statement of issues under Practice Book 3012(a) in
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order to secure appellate review of alternate grounds.[1]
See Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n. 3, 472 A.2d 356 (1984). The defendants did not file such a statement. We decline to consider the defendants’ alternate grounds.
First, we accept the state’s representation to us in oral argument that it relied on the prior rule in declining to respond in its brief to the defendants’ alternate grounds, and that it would therefore be prejudiced by our consideration of those grounds. Second, the trial court did not rule on these claims because of the view of the case which it took. Also, the defendants’ motions to suppress in the trial court raised additional claims, not argued in this court, upon which the trial court did not rule for the same reason. Upon the remand, it will be necessary for the trial court to rule on those issues. We therefore leave to the trial court an initial determination of all of the unresolved claims of the defendants.
There is error, the judgments are set aside and the cases are remanded for further proceedings in accordance with law.
In this opinion the other judges concurred.
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