State v. Tedesco

• Decision Date: 13 June 1978
• Citation: 397 A.2d 1352,175 Conn. 279
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Samuel J. TEDESCO.

Page 1352

397 A.2d 1352

175 Conn. 279

STATE of Connecticut v. Samuel J. TEDESCO.

Supreme Court of Connecticut.

Argued March 21, 1978.

Decided June 13, 1978.

Bernard S. Peck, Bridgeport, with whom were Daniel D. Peck, Richard A. Johnson, Bridgeport, and, on the brief, Salvatore C. DePiano, Bridgeport, for appellant (defendant).

Joseph T. Gormley, Jr., Chief State's Atty., for appellee (state).

Before LOISELLE, BOGDANSKI, PARSKEY, DALY and SPONZO, JJ.

BOGDANSKI, Associate Justice.

The defendant was charged in an information with the crime of falsely certifying as to the administration of an oath, in that on June 2, 1975, the defendant falsely certified that he had administered an oath to Michael Altieri in an application for the renewal of a liquor permit which application was required by § 30-39(a)(1) ¹ of the General Statutes to be sworn to under oath, in violation of § 53-368 ² of the General Statutes. On a trial to a jury, the defendant was found guilty, fined $250, and summarily disbarred from the practice of law. From the judgment rendered, he appealed to this court.

From the evidence presented, the jury could have found the following facts: On December 15, 1972, a limited partnership calling itself the Candlewood Valley Country Club Associates (club) was formed. Its purpose was to own and operate a country club in New Milford, Connecticut. The partnership, organized by Lidizio Renzulli, consisted of two groups of investors besides Renzulli: one group consisting of friends and relatives of Henry Gropper, and another group consisting of the relatives of the defendant. The members of the latter group, who invested a total of $73,500 in the partnership, were J. Ralph Tedesco, the defendant's son; Jane Tedesco, his mother; Betty Aurillio, his sister; and Louis Tedesco, his brother. The partners of record were Lidizio Renzulli, J. Ralph Tedesco, and Frances Gropper; however, the persons who attended partnership meetings were Henry Gropper, Renzulli and the defendant. The total investment of the partnership was approximately $870,000. The partnership executed two mortgages, one for $30,000 and one for $325,000. On the mortgage of $325,000, the defendant and his wife guaranteed upon default one-third of the amount loaned. The partnership, however, soon encountered financial difficulties. Its mortgage obligations were in default and J. Ralph Tedesco loaned an additional $27,800 to the partnership.

In December, 1972, Renzulli applied for a liquor permit for the club. The application listed the club as the backer and Renzulli as the permittee. The liquor control commission approved the application and issued a permit on May 25, 1973, effective until May 25, 1974. On June 21, 1973, the commission received an application requesting that Michael Altieri be made the substitute permittee. The substitution was authorized on August 8, 1973, effective until May 25, 1974.

In February of 1974, the commission sent notice of revocation because of an alleged violation of § 30-48 of the General Statutes in that credit had been extended for more than thirty days. The matter was set down for a hearing at which no one appeared, and the permit was revoked. No one appeared because the club had closed for the winter and the notice of the hearing had not been received. Altieri, however, learned of the revocation when he met with a liquor commission inspector in March of 1974. Altieri then wrote the commission stating he had not worked at the club since September, 1973, and that he did not intend to return. Renzulli, upon learning of the revocation, wrote the commission explaining the failure to appear and requested the commission to open the revocation. The commission did open the revocation.

In May, 1974, the club took steps to renew its permit. Altieri was still listed as the permittee. Prior to May 30, 1974, Renzulli had Altieri sign a form which Altieri believed would clear his name off the liquor permit. Altieri did not read the form before he signed it. The renewal application listing Altieri as permittee was approved on June 18, 1974, and was effective until May 24, 1975.

In May of 1975, the club again sought to renew its permit. Because Altieri was still the permittee of record, his signature was required on the renewal application. Renzulli phoned Altieri and asked his permission to sign a liquor commission form. Altieri gave his permission but was unsure as to what form was involved. Altieri never saw or signed the 1975 renewal form and never swore to the truth of its contents.

On June 2, 1975, Renzulli went to the defendant's office and asked him to notarize a liquor license renewal application. Renzulli told the defendant that Altieri had authorized him to sign Altieri's name as permittee on the 1975 renewal application. At the defendant's request, Renzulli made a phone call to someone, allegedly Altieri, to confirm the authorization. The defendant did not talk to Altieri, and Altieri was not present in the room. Renzulli then signed Altieri's name in the box marked "permittee." The defendant testified that he then administered an oath to Renzulli concerning the truth of the statements on the renewal form. Renzulli did not testify at the trial.

I

The defendant claims that the appeal should be remanded with direction to dismiss the information on the ground that the commission lacked jurisdiction to act on the 1975 renewal application which contained his certification. He contends (1) that the renewal of June 18, 1974, was invalid because the commission acted improperly in opening the revocation of February, 1974, and because the 1974 renewal was issued after the expiration date of the prior permit; (2) that the 1975 renewal was "void" because the 1974 permit it purported to renew was invalid and because the 1975 renewal application was filed untimely; and (3) that Altieri's oath was not required by law because the renewal application was ineffective and because the commission had no jurisdiction to grant the 1975 permit.

Ordinarily, an administrative agency may not review its own decisions and revoke action once duly taken. However, where a change of conditions has occurred or considerations have arisen materially affecting the merits of the matter and no vested rights have intervened, an agency may properly review its decision. Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d 382; Dylag v. Brennan, 128 Conn. 304, 22 A.2d 635; Middlesex Theatre, Inc. v. Hickey, 128 Conn. 20, 20 A.2d 412; Olivieri v. Bridgeport, 126 Conn. 265, 269-70, 10 A.2d 770; Kowalski v. New York, N.H. & H. R. Co., 116 Conn. 229, 234-35, 164 A. 653; St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 154 A. 343; 2 Am.Jur.2d, Administrative Law, § 520 et seq.; annot., Administrative Decision Reopening, 73 A.L.R.2d 939.

The fact that a renewal permit is issued after the expiration date of a prior permit does not affect the validity of the granted permit. There was testimony before the jury that the commission's regulations, requiring that renewal applications be filed twenty-one days before the expiration date, were enacted for the convenience of the commission. If renewal applications were received untimely but prior to expiration, they were routinely accepted and acted upon by the staff. If renewal applications were received after the expiration date, only the commission itself could take action on the renewals.

Time limitations as contained in the commission's regulations are designed to secure order, system and dispatch, and are directory, not mandatory. State v. White, 169 Conn. 223, 238, 363 A.2d 143; State ex rel. Arcudi v. Iassogna, 165 Conn. 203, 205, 332 A.2d 90; Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75, cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270. "It is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party." National Labor Relations Board v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir. 1953); American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 536, 90 S.Ct. 1288, 25 L.Ed.2d 547. A further reason for the validity of such an agency's action is that a renewal is not an extension of the term of the original permit but is actually a new permit. Newington v. Mazzoccoli, 133 Conn. 146, 150, 48 A.2d 729.

The state claims that because the commission is the only state agency which can act on liquor permits, the filing of the 1975 renewal application gave the commission jurisdiction to act, and that the oath in question was required by law whether the renewal should or should not have been granted. The defendant claims that if the 1975 renewal application was insufficient or defective for any reason, the commission would lack jurisdiction to act on the renewal in which case the oath in question would not be required by law.

In United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747, the defendants committed perjury in the course of a trial. On appeal, the indictment forming the basis for the trial was found to be defective. The defendants claimed that their perjury at the trial could have no effect because the indictment was faulty. The court disagreed, ruling that the invalidity of the indictment was no defense to the perjury committed during the trial as the court still had jurisdiction to try the case. The court went on to say: "The effect of the alleged false testimony could not result in a miscarriage of justice in this case but the federal statute against perjury is not directed so much at its effects as at its perpetration; at the probable wrong done the administration of justice by false testimony." United States v. Williams, supra, 68, 71 S.Ct. 600; see ...