author: SPALLONE, J.

text:
    SEAN P. BIALOWAS v. COMMISSIONER OF MOTOR VEHICLES
    (15548)
    O’Connell, Hennessy and Spallone, Js.
    Argued November 13, 1996
    officially released April 15, 1997

      Stanley Maxim Lucas, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   SPALLONE, J.

This is an appeal from a judgment dismissing the appeal of the plaintiff from the administrative decision of the defendant commissioner of motor vehicles (commissioner) made pursuant to General Statutes § 14-227b. The plaintiff claims that the trial court improperly (1) upheld the administrative hearing officer’s decision to suspend the plaintiffs license even though the procedures of § 14-227b were not followed, (2) upheld the administrative officer’s decision to suspend the plaintiffs license on the basis of the plaintiffs so-called failure to perform a breath test successfully, allegedly constituting a “refusal” under § 14-227b, and (3) violated the plaintiffs due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution by allowing the narrative supplement to the police report into evidence and by the failure of the police to apprise the plaintiff of all of his test results. We reverse the judgment of the trial court.

A review of the record reveals the following. On September 10, 1994, at approximately 2:18 a.m., Officer Joseph Jones of the Norwich police department observed the plaintiff driving a motor vehicle in an erratic manner. The plaintiff was driving his pickup truck at a high rate of speed and, while swerving back and forth across the entire width of the road, almost collided with several parked vehicles. Jones pulled over the plaintiff and, on the basis of plaintiffs “glossy eyes,” the strong odor of alcohol on his breath, slurred speech, and his failure to perform certain sobriety tests satisfactorily, Jones placed the plaintiff under arrest for operating a motor vehicle while under the influence of alcohol or drugs pursuant to General Statutes § 14-227a.

Jones transported the plaintiff to police headquarters and made three attempts, using an intoximeter, to administer a breath test to the plaintiff. Jones stated in the narrative supplement that the plaintiff “was explained all necessary procedures but failed to give a sufficient breath sample on three separate occasions . . . [t]herefore resulting in a refusal of the test.” He filled out an A-44 police report form as well as a narrative supplement to that form and stated in the supplement that the plaintiff “was very uncooperative and would not sign any necessary papers.”

Pursuant to § 14-227b (c), a written report of the plaintiffs arrest and alleged test refusal was forwarded to the department of motor vehicles (department). Thereafter, the plaintiff was notified by the commissioner that his operator’s license was to be suspended for a period of six months because he refused to be tested. He was also notified that he was entitled to a hearing to contest the suspension.

The plaintiff requested and was given an administrative hearing. The hearing officer admitted into evidence, over the objection of the plaintiff, the police report, the narrative supplement to the police report, and a breath test result tape from the intoximeter. Jones did not testify. The plaintiff testified that he did not refuse to take a breath test. He testified that he did refuse to sign the temporary operator’s license because he was “upset.” He said that he had taken three tests and that Jones had changed the intoximeter nozzle between the first and second tests. The plaintiff testified that, after the first test attempt, Jones had said that they would attempt another test. After the second attempt, according to the plaintiff, Jones said, “Try again.” The plaintiff testified that, after the third attempt, Jones had said, “That’s enough.” The plaintiff also testified that he had not been told that he was not blowing hard enough or that his actions were being treated as a test refusal.

The hearing officer found that the mandates of § 14-227b were satisfied and ordered that the plaintiffs license to operate a motor vehicle be suspended for six months. In making her decision, the hearing officer made subordinate findings that the plaintiffs “conduct was properly deemed a refusal by the police officer, as his failure to sign the temporary license and other documents supports a lack of cooperation.”

Pursuant to General Statutes § 4-183, the plaintiff appealed the administrative decision to the Superior Court, claiming that the decision should be reversed because (1) procedural errors were committed by the arresting officer, (2) the plaintiff did not refuse to be tested for his blood alcohol count and (3) the suspension subjected the plaintiff to double jeopardy. The trial court on November 16,1995, heard the plaintiffs appeal. After summarizing the evidence and arguments, the trial court stated that, “[i]n the court’s view, the plaintiffs evidence was clearly more persuasive . . . .” The court nonetheless found that there was substantial evidence on which the hearing officer could reasonably have based her finding and upheld the administrative hearing officer’s decision. The trial court also rejected the plaintiffs other legal arguments and dismissed his appeal. This appeal followed.

In an administrative appeal, the plaintiff bears the burden of proving that the commissioner’s decision to suspend a motor vehicle operating privilege was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Schallenkamp v. DelPonte, 229 Conn. 31, 39, 639 A.2d 1018 (1994); see Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Schallenkamp v. DelPonte, supra, 40. “The evidence must be substantial enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” (Internal quotation marks omitted.) Marshall v. DelPonte, 27 Conn. App. 346, 352, 606 A.2d 716 (1992). “[I]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . . . the decision must be upheld.” Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991). The obvious corollary to the substantial evidence rule is that a court may not affirm a decision if the evidence in the record does not support it.

I

The plaintiffs first claim is that the trial court improperly upheld the administrative hearing officer’s decision even though the procedures of § 14-227b were not followed. Specifically, the plaintiff claims procedural errors in that (1) he was not advised of his constitutional rights, a requirement of § 14-227b (b); (2) he was not informed that he would lose his license if he refused to submit to testing or that the test results or a refusal to take the tests could be used against him in a criminal prosecution, a further requirement of § 14-227b (b); (3) he never received the results of the second and third breath tests, as per § 14-227b-8 of the Regulations of Connecticut State Agencies; (4) there is no indication that all the test results were mailed to the department as required by § 14-227b (c); (5) there is no indication that the police report and accompanying documents were mailed to the department within three business days, as further required by § 14-227b (c); and (6) the narrative supplement to the police report was not marked as having been made under oath. The plaintiff argues that, because a police report must conform to the requirements of § 14-227b to be admissible, this nonconforming report was inadmissible. Thus, the plaintiff argues, he has met his burden of demonstrating that no evidence exists because, without the police report and the accompanying documents, no admissible evidence was offered at the administrative hearing to support the hearing officer’s conclusion.

This claim fails for three reasons. First, § 14-227b (f) does not provide for an adjudication of claimed procedural errors but expressly provides that “[t]he hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test . . . and (4) was such person operating the motor vehicle. ...” The language of § 14-227b (f) is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above. Buckley v. Muzio, 200 Conn. 1, 6, 509 A.2d 489 (1986). The hearing officer made the findings mandated by law and was not required to do more.

Second, our Supreme Court has held that “even multiple failures on the part of an arresting officer to comply with the statutoxy dictates of § 14-227b [are] not sufficient grounds for overturning the commissioner’s determination, after a hearing, that the essential elements of the statute had been proven and that the plaintiffs operator’s license should be suspended.” Schallenkamp v. DelPonte, supra, 229 Conn. 41-42; see Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987). That license suspensions hearings are limited to the four issues specified in subsection (f) of § 14-227b indicates that the legislature did not intend compliance with either subsection (b) or subsection (c) to be an essential condition for suspension. See Volck v. Muzio, supra, 514, 517.

Third, though there is merit, in theory, to a claim of procedural error that bears on the police report’s reliability, the failure to check a box indicating that the narrative supplement to the report was made under oath does not nullify other indications on the police report signifying that such additional materials were made under penalty of false statement.

The issue of whether a police report was made under oath goes to the question of reliability of the report. Administrative tribunals are not “strictly bound by the rules of evidence ... so long as the evidence is reliable and probative.” Lawrence v. Kozlowski, supra, 171 Conn. 710. Compliance with § 14-227b (c) is designed to provide “sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer.” Volck v. Muzio, supra, 204 Conn. 518. If the report did not include such indicia of reliability, the report would not be admissible even before an administrative tribunal of this type.

The plaintiff is correct in stating that, on the police report, there is no check in the box next to the line that states “[i]n addition to this completed A-44 form, this report includes supplemental, explanatory material, attached hereto and subject to the oath requirement.” This alone, however, fails to demonstrate that the supplemental material was not made under oath. In fact, the document bears sufficient indicia of reliability to justify its admission as evidence in this type of administrative hearing. The police report was signed and sworn to under oath. The arresting officer, by signing and swearing to the report under oath, indicated the narrative supplement was also signed under oath and sworn to. This is clear from two prepared statements on the report. The first is in the instructional portion of the form that directs the reporting officer to “[ajttach additional sheets or materials necessary to explain portions of this Report. Such attachments are considered part of this Report and are approved by the Commissioner. The statements and information contained therein are subscribed and sworn to under penalty of false statement.” The second is in § 1, oath, which states that “[t]his report of chemical alcohol test or refusal and the above noted attachments hereto are subscribed and sworn to by me, the arresting officer, under penalty of false statement . . . .” The fact that the arresting officer failed to check the box indicating that the report includes attachments does not negate these statements or the arresting officer’s signature, which, together, indicate the report in full, i.e., the A-44 report as well as the attachments, is made under penalty of false statement.

II

The plaintiff next claims that there was not substantial evidence presented at the administrative hearing to support a finding of refusal to submit to the intoximeter test. We agree that, on the basis of the facts and circumstances of this case as presented before the administrative hearing officer, there was not substantial evidence to support a finding of refusal.

The plaintiff supports this claim by stating that there was no evidence that the plaintiff either refused to take the test or that the plaintiff intentionally failed to perform the test. In contrast, the plaintiff points out, there was evidence that he took the test. He claims that there was no indication that the testing device was properly checked for accuracy nor was there any indication that the officer who attempted to administer the tests was certified to operate the machine. The plaintiff states that it is unclear what the results of the second and third tests were.* He also makes the argument based on Dorman v. DelPonte, 41 Conn. Sup. 437, 440, 582 A.2d 473 (1990), that lack of cooperation alone does not constitute refusal to take the test. Finally, the plaintiff claims that, in the absence of a statutory definition of “refuse,” the hearing officer failed to apply the commonly approved usage of the word.

We hold that where it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b. Such refusal must be supported by substantial evidence. A conelusory statement by the arresting officer that the driver has failed to provide an adequate breath sample and has, therefore, refused, does not constitute such evidence.

It is not in dispute that the plaintiff orally consented to take the breath alcohol test. It is also not disputed that the plaintiff attempted three times to take the test. The arresting officer inferred that the plaintiff refused to be tested by not furnishing sufficient breath samples to enable a measurement of his breath alcohol levels. The arresting officer provided no information to support this inference adequately. There are grounds for this conclusion from only four other evidentiary sources: (1) the portion of the police report that states that the plaintiffs “refusal” was witnessed by a second officer; (2) the portion of the police report that lists “aborted” as a result of the first intoximeter test; (3) the intoximeter test result tape, attached to the police report, that reads “insuff. breath”; and (4) the narrative supplement, where the officer noted that the plaintiff “was very uncooperative and would not sign any necessary papers.” Together, these sources do not amount to substantial evidence for a finding of refusal. With respect to the notation that the plaintiff was very uncooperative, an overall failure to cooperate, without additional details, cannot be generalized to show a lack of cooperation in a specific respect and, in fact, appears to relate to his refusal to sign the temporary license. As in Dorman v. DelPonte, supra, 41 Conn. Sup. 442-43, “[e]ven if intentional refusal of the driver to cooperate is a refusal to take the test within the meaning of the statute, the hearing officer never made a finding that the plaintiff intentionally failed properly to perform the test. The record does not support the finding even if the hearing officer entirely disregarded the plaintiffs testimony. . . . [T]he police officer’s opinion that the plaintiff did not blow forcefully enough into the machine ... is only a conclusion without any underlying, stated factual basis in the record.” (Emphasis in original.) In addition, it is unclear whether the remark that the plaintiff was “very uncooperative” referred only to the plaintiffs refusal to sign the documents or also to the plaintiffs conduct during the test attempts. The other sources of information do not necessarily show that the plaintiffs failure to provide sufficient breath was a result of a lack of cooperation by the plaintiff. There is no indication whether the plaintiff was, in fact, trying to provide a sufficient breath sample and was unable to do so, whether the machine was working improperly or whether the plaintiff was deliberately withholding his breath. Also, as the trial court correctly noted, the plaintiff pointed out that the arresting officer provided a single intoximeter test result tape “which indicated some inconsistency with their statements that the plaintiff failed to provide enough breath to record on the machine.”

The police officer did not include in the police report or the narrative supplement adequate information about his observations to support his conclusion that the plaintiffs failure to provide sufficient breath was, in fact, a refusal to take the test. Such information, if it existed, could have been provided through testimony or other evidence such as the narrative supplement and might have described the officer’s observations of the effort the plaintiff made in providing breath samples and in following the officer’s instructions, or other conduct of the plaintiff that would bear on whether his actions were intentional. Without adequate information to form a basis for the police officer’s inference, therefore, there was not substantial evidence for the hearing officer to determine whether the plaintiffs actions constituted a refusal.

The hearing would appear to be only the barest of formalities if it were sufficient for the arresting officer to check a box and provide no substantiating data. The informed consent statute “does not give the police or the hearing officer the authority to determine that a refusal to take the test . . . occurs when the driver consents to take the test and fails to perform it properly”; Dorman v. DelPonte, supra, 41 Conn. Sup. 443; and there is insufficient evidence here to support the decision of the police or hearing officer that there was a refusal to take the test. The statute does not authorize the administrative hearing officer to credit a conclusory determination by the police officer that the driver’s failure to provide an adequate breath sample, without more, constituted a refusal. See id.; see generally State v. Barlow, 30 Conn. App. 36, 44, 618 A.2d 579 (1993).

This court is aware of the “carnage associated with drunken drivers.” State v. Stevens, 224 Conn. 730, 739, 620 A.2d 789 (1993). “Nevertheless, in our endeavor to rid our roads of these drivers ... we cannot trample on the constitutional rights of other citizens. They are entitled to a fair hearing.” Zadroga v. Commissioner of Motor Vehicles, 42 Conn. Sup. 1, 10, 597 A.2d 848 (1991). “An operator’s license is a privilege that the state may not revoke without furnishing the holder of the license due process as required by the fourteenth amendment. Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).” State v. Hickam, 235 Conn. 614, 626, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996).

In the present case, we conclude that the evidence in the record does not support the hearing officer’s determination that the plaintiff “refused” to submit to the required test within the meaning of § 14-227b. Having so concluded, we need not address the plaintiffs third claim of error.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the appeal of the plaintiff.

In this opinion the other judges concurred.

       General Statutes § 14-227b provides in relevant part: “Implied consent to test. Suspension of license for refusing to submit to test or having elevated blood alcohol content. Hearing, (a) Any person who operates a motor vehicle in this st ate shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine . .
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both . . . and thereafter, after being apprised of his constitutional rights . . . having been afforded a reasonable opportunity to telephone an attorney prior t.o the performance of such test and having been informed that his license . . . may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal . . . may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given .... The police officer shall make a notation upon the records of the police department that he informed the person that his license . . . may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis . . . and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license . . . to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement ... by the arresting officer. If the person arrested refused to submit to such test or-analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis . . . and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.
      “(d) Upon receipt of such report, the Commissioner of Motor Vehicles may suspend any license ... of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license . . . has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license . . . is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of the suspension ....
      “(f) . . . The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced wilhin two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in 1he blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .
      "(g) If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license .... If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. The commissioner shall render a decision at the conclusion of such hearing or send a notice of his decision by bulk certified mail to such person not later than thirty days . . . from the date such person received notice of his arrest by the police officer. . . .
      “(h) The commissioner shall suspend the operator’s license . . . and revoke the temporary operator’s license . . . issued pursuant to subsection (c) of this section, of a person . . . against whom, after a hearing, the commissioner held pursuant to subsection (g) of this section . . . for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, or (B) six months if such person refused to submit to such test or analysis, (2) one year if such person has previously had his operator’s license . . . suspended under this section, and (3) two years if such person has two or more times previously had his operator’s license . . . suspended under this section. . . .
      “(j) The provisions of this section shall not apply to any person whose physical condition is such that, according to competent medical advice, such test would be inadvisable. . . .”

       Section 14-227b-9 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “If the person arrested has a current valid motor vehicle operator's license, the arresting officer, after revoking and taking possession of the person’s Connecticut operator’s license . . . shall issue to such person a temporary Connecticut operator’s license ... on a form as approved by the commissioner. The temporary operator’s license or privilege form . . . shall be signed by the person arrested and by the issuing police officer.”

       The following exchange took place during the hearing:
      “[Hearing Officer]: After the first breath sample, what did the police officer say to you?
      “[Plaintiff]: We’re going to try another one with this nozzle.
      “Q. And then you performed a second one?
      “A. Yes.
      “Q. What, happened?
      “A. He said, ‘Try it again.’ So I did it again, and he said, ‘That’s enough.’
      “Q. Did he make any other comment like you’re being treated as a refusal—
      “A. No.
      “Q. or you’re not blowing hard enough?
      “A. No.”

       Regarding the evidence and arguments, the trial court stated the following: “The essential basis [of] the plaintiffs appeal is his contention that there was insufficient evidence that supported the hearing officer’s finding that the plaintiff refused to submit to the required test. The evidence on this issue consisted of the A-44 police report, a narrative supplement, and ... the plaintiffs testimony. In the police report the arresting officer states that the plaintiff was uncooperative. He further states that the plaintiff ‘failed to give a sufficient breath on three separate occasions, therefore resulting in a refusal of the test.’ The police officer also stated the plaintiff refused to be tested and that statement is endorsed by another police officer who signed the form.
      “In opposition to the evidence summarized above, the plaintiff testified that he tried to blow into the intoximeter machine on several occasions. He testified that he did not refuse to take [the] test. He indicated that there was some evidence that the machine was not working properly, and that the mouthpiece had to be replaced. In his argument to the [trial] court the plaintiff points out that the officer failed to check the block on the A-44 report form indicating that he was certified to operate the intoximeter machine. The plaintiff also pointed out that the police attached only one machine tape to their report which indicated some inconsistency with their statements that the plaintiff failed to provide enough breath to record on the machine.”

       Section 14-227b-8 of the Regulations of Connecticut State Agencies pro■vides: “The person who has submitted to a chemical analysis, or the person’s attorney, will be afforded access to the test results by tire department prior to a scheduled hearing.”

      The plaintiff offered evidence that the mailing date stamped on the records sent to the department was September 14, 1994, at 3:14 p.m. The plaintiff was arrested on September 10, 1994, at 2:14 a.m.

       In this action the hearing officer made the express written findings as follows:
      “1. The police officer had probable cause to arrest the above-named operator [the plaintiff] for a violation specified in [General Statutes § 14-227b (b)].
      “2. The operator was placed under arrest.
      “3. The operator refused to submit to such test or analysis.
      “4. Said person was operating the motor vehicle.’’

      In addition, claims of statutory noncompliance involving two of these specific types of allegations—failure to warn of the consequences of refusal and failure 1 o mail the arresting documentation t o the department within the three day period—have previously been reject ed on appeal. The Connecticut Supreme Court has rejected the idea that a license suspension should be overturned for failure to warn of the consequences of test refusal. “[I]n a license suspension appeal it is not necessary to determine whether a driver had been adequately warned of the consequences of his refusal to submit to the prescribed tests ” Weber v. Muzio, 204 Conn. 521, 523, 528 A.2d 828 (1987); Volck v. Muzio, supra, 204 Conn. 520. In both Volck and Weber, the alleged procedural defects included the officers’ failure to warn the motorists of the consequences of their refusal to submit to testing. This court has affirmed a trial court’s ruling upholding an administrative hearing officer’s decision to suspend a motorist’s license despite a claim that the police report was not mailed to the commissioner within three business days. Peters v. Dept. of Motor Vehicles, 26 Conn. App. 937, 601 A.2d 1 (1992), affirming Peters v. Dept. of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 701413 (July 11, 1991) (4 Conn. L. Rptr. 391); cf. Yanni v. DelPonte, 31 Conn. App. 350, 354, 624 A.2d 1175 (1993) (holding that commissioner’s mailing of notice of suspension by bulk certified mail, rather than certified mail as required by General Statutes [Rev. to 1993] § 14-227b [g], was not grounds for invalidating suspension).

       Each page of the narrative supplement also bears the signature of the arresting officer.

       The plaintiff correctly points out that the arresting officer did not check the box on the A-44 police report form stating that the “[a]nalytical device was certified, analytical device was operated by a certified operator, and analytical device was checked for accuracy in accordance with applicable state regulations.”

       The A-44 police report form has two sections where arresting officers may fill in intoximeter test results. In the section marked “First intoximeter test,” the arresting officer in this case listed the time as 2:45 a.m., the date as September 10, 1994, and the result as “aborted.” In the section marked “Second intoximeter test,” the arresting officer left the time and result sections blank and filled in the date but then crossed it out.
      The intoximeter test result tape, which bears the signature of the arresting officer and was attached to the A-44 police report, shows tire following:
      “Test Value Time
      BLK .000 02:47
      EXTSTD .096 02:48
      BLK .000 02:49
      STD .098 02:49
      BLK .000 02:50
      INSUFF. BREATH”

       In Dorman v. DelPonte, supra, 41 Conn. Sup. 440, the trial court stated: “The limited evidence before the hearing officer establishes the uncontested fact that the plaintiff was offered the breath test six times and that each time, the intoximeter failed to register an adequate reading. Nothing in the record indicates that the intoximeter was working properly at the time. Even if the plaintiffs testimony at the hearing is disregarded, other evidence in the record shows that he did consent to take the test, and did so six times. The police officer preparing the narrative report was of the opinion that the plaintiff did not blow hard enough to cause the machine to register, but the report fails to indicate the degree of effort made by the plaintiff, whether he was intentionally holding back, or whether another person could have caused the machine to register a reading given the condition it was in at the time. The officer reached iris own conclusion that the plaintiff was uncooperative and the officer construed this to be a refusal to take the test. This is not a factual conclusion that either the hearing officer or the court must accept. The police officer’s opinion is speculation . . . .”

       Wo note, however, that a finding of intent may be unnecessary to reach a decision that a motorist’s conduct in failing to provide adequate breath samples const ituted a refusal under § 14-227b. This is because such a requirement could render § 14-227b “functionally unworkable.” Buckley v. Muzio, supra, 200 Conn. 7. The Connecticut Supreme Court stated in Buckley that “[a] refusal to submit to chemical testing for purposes of an administrative sanction need not be knowing and intelligent, for it is not analogous to the waiver of constitutional rights by a person accused of a crime.” Id., 8.

       The plaintiff argues that failure to give a sufficient breath sample is, as a matter of law, not evidence of a failure to cooperate and, thus, in effect, cannot support, a conclusion that the plaintiff refused to take the test. In certain circumstances, it may be possible that evidence of failure to give a sufficient breath sample may be evidence of refusal, if supported by an adequate basis in facts supplied to the administrative hearing officer. Such evidence, however, is not per se refusal.
      The plaintiff also argues that, in the absence of a statutory definition of “refuse,” the hearing officer failed to apply the commonly approved usage of the word. Recently, this court ruled on the definition of “refuse” in the context of General Statutes § 14-227a. State v. Corbeil, 41 Conn. App. 7, 18-19, 674 A.2d 454, cert. granted on other grounds and appeal dismissed, 237 Conn. 919, 676 A.2d 1374 (1996). There we stated: “It is not necessary to define a word that carries an ordinary, commonly understood meaning, is commonly used and is defined in standard dictionaries. . . . The word ‘refuse’ is defined as ‘to show or express unwillingness to do or comply with. . . .’Consequently, the dictionary definition makes it clear that‘refusing’ to take a breath test may be accomplished by a failure to cooperate as well as by express refusal.” (Citations omitted; emphasis added.) Id.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    BOBHIC ASSOCIATES LIMITED PARTNERSHIP v. CARRABBA OB-GYN ASSOCIATES, INC., ET AL.
    (15812)
    Dupont, Lavery and Landau, Js.
    Submitted on briefs December 18, 1996
    officially released April 15, 1997

      Kent D. Mawhinney filed a brief for the appellant (plaintiff).

      John H. Grasso filed a brief for the appellees (defendants).
   LAVERY, J.

The plaintiff, Bobhic Associates (Bobhic), appeals from the judgment of the trial court in favor of the defendants in an action for breach of a lease. The principal issue in this appeal is whether the trial court correctly found that the plaintiffs case was fatally flawed because the plaintiff failed to present any evidence of an assignment of the lease. We disagree with the ruling of the trial court. The judgment is reversed and the case is remanded for a new trial.

The trial court found the following facts. On February 1.1990, the defendant Carrabba Ob-Gyn Associates, Inc. (Carrabba Ob-Gyn), entered into a five year lease for an office at 701 Cottage Grove Road, Bloomfield, with the Cottage Grove Development Corporation. On May 3.1990, the defendant Angelo Carrabba signed the lease in his capacity as an officer of Carrabba Ob-Gyn. On May 5, 1990, Carrabba signed a guarantee that guaranteed the obligations of Carrabba Ob-Gyn under the lease. On August 21, 1990, Daniel R. Oulette signed the lease on behalf of Cottage Grove Development Corporation.

On November 22, 1990, Cottage Grove Development Corporation, through its vice president Daniel R. Oulette, executed a warranty deed conveying the Cottage Grove Road property to Bobhic Associates Limited Partnership. Carrabba Ob-Gyn occupied the Cottage Grove Road property until it vacated the premises in October 1992. The trial court concluded that “the lease between the parties ran from February, 1990, through January, 1995. The defendants vacated in October 1992.”

The relevant procedural history is as follows. Bobhic, through a three count complaint, sought damages alleging that the defendants breached a lease, a guarantee of lease and a promissory note. At trial, the warranty deed conveying the Cottage Grove Road property from Cottage Grove Development Corporation to Bobhic was admitted into evidence. The lease entered into by Cottage Grove Development Corporation and the defendants was also admitted into evidence. A promissory note, however, that listed Angelo S. Carrabba as the maker and Bobhic as the payee, which was the subject of the third count of the complaint, was not admitted into evidence for lack of foundation.

In its memorandum of decision, the trial court found that the plaintiff failed to meet its burden of proof as to counts one and two of its complaint. The trial court also found that since the promissory note was not admitted into evidence, the plaintiff failed to meet its burden on count three.

After issuing its memorandum of decision, the trial court addressed the plaintiffs motion for articulation concerning the elements of its case on which it had failed to meet its burden of proof. In its response to the plaintiffs motion for articulation, the trial court stated: “The plaintiff failed to prove the assignment alleged in the last sentence of this paragraph. That failure is fatal to its cause of action.”

“Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. ... It is, however, not our function to retry the case or to pass upon the credibility of witnesses. . . .” (Citations omitted; internal quotation marks omitted.) Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 34, 663 A.2d 432 (1995).

Section 13.8 of the lease, which was admitted into evidence at trial, states: “Provisions binding, etc.: Except as herein otherwise provided, the terms hereof shall be binding upon and inure to the benefit of the successor and assigns, respectively, of Landlord and Tenant . . . .” (Emphasis added.) This court has held “a successor, as applied to realty, is one who takes by will or inheritance, rather than by deed, grant, gift, purchase or contract. In contrast, a successor in interest is ‘one who follows another in ownership or control of property’ . . . and does not exclude those who take by deed, grant, gift, purchase or contract.” (Citation omitted.) Drazen Properties Ltd. Partnership v. E. F. Mahon, Inc., 19 Conn. App. 471, 475, 562 A.2d 1142 (1989). In the present case, Bobhic is not a successor but a successor in interest, because it gained title to the property by deed.

Bobhic, however, is still entitled to the rent from the leased premises because there is ample support in Connecticut law for the proposition that the conveyance of property itself constitutes an assignment of the property and the rights that run with it. In Stiefel v. Lindemann, 33 Conn. App. 799, 806, 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1994), this court stated: “It is well established that where the reservation creating an easement does not mention the heirs and assigns of the grantee, a presumption exists that the grantor and grantee intended the right-of-way to be in gross.” The implication of this statement is that where the reservation mentions heirs and assigns, the easement runs with the land. Since the term heirs refers only to persons who inherit, if the easement is to inure to the benefit of persons who take by deed, those persons must be encompassed within the meaning of assigns.

Additionally, Black’s Law Dictionary states that the term assigns “generally comprehends all those who take either immediately or remotely from or under the assignor, whether• by conveyance, devise, descent or act of law.” (Emphasis added.) In Sagal v. Mann, 89 Conn. 576, 581-82, 95 A. 6 (1915), our Supreme Court held that “[t]he rent due for the use of the premises was an incident to the reversion and was carried with it. The plaintiff, by force of the conveyance of the property to him by [the original landlord], had the right to recover in his own name all rent which became due and payable subsequent to the conveyance of the property to him. The defendant, by payment of rent to the plaintiff under the terms of the lease, recognized the plaintiffs title. This right of a lessor to recover rent of the assignee of the lease is founded, not on contract, but on privity of estate. It is a general proposition, which has but few exceptions, that the transfer of a reversion carries with it the rent due and accruing thereafter by the lease creating the term, whether the assignment be by deed or mortgage.” (Emphasis added.)

In the present case, the benefits and the obligations set forth in the lease pertained to both Bobhic and Carrabba because Bobhic was an assignee by law and was in privity of estate with Cottage Grove Development Corporation, who is the original landlord. The trial court, however, relied on Feltman v. Compton, 127 Conn. 302, 16 A.2d 571 (1940), for the proposition that absent an assignment a lease cannot be enforced. That case is easily distinguished from the present case. Felt-man held that if a tenant does not assign the lease to a person who occupies the premises as a subtenant, the subtenant acquires no rights under the lease. Feltman concerns neither the sale of leased property nor the enforcement of the lease by a landlord or anyone claiming under a landlord. In the present case, however, there was a sale of the leased property to a party who is trying to enforce lease provisions on the original tenant. Furthermore, Feltman, unlike the present case, does not concern the issue of whether a purchaser of leased land may enforce the lease.

In light of the uncontroverted evidence, we find that the trial court’s finding that the plaintiff did not sustain its burden of proof because it failed to prove an assignment is improper.

The judgment for the defendants on counts one and two is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiff sought over $151,000 in back rent, late fees and interest from the defendant.

       The first 1wo counts pertain to the lease and guarantee.

       The plaintiffs claim as to the promissory note is not raised in this appeal.

       The trial court is referring to the third paragraph of the first count of the plaintiffs complaint. That paragraph states: “Cottage Grove Development Corporation, as Lessor, and Defendant, Carrabba OB-Gyn Associates, Inc., as lessee, executed a lease agreement as of February 1, 1990 (‘the lease’) for office space at 701 Cottage Grove Road, Bloomfield, Connecticut, for a term of five years ending January 31, 1995. Thereafter, title to 701 Cottage Grove Road was acquired by Plaintiff and said lease was assigned to plaintiff.”

       At issue in Stiefel v. Lindemann, supra, 33 Conn. App. 799, was whether an easement was an easement appurtenant, which runs with the land and inures to the benefit of all future owners, or an easement in gross, which is personal to grantees of the particular deed in which the easement is first described.

      “Reversion is the technical name for the interest obtained when one purchases a landlord’s interest in real property.


author: DUPONT, C. J.

text:
    ROLAND GARDNER v. MICHAEL PILATO ET AL.
    (15408)
    Dupont, C. J., and Foti and Schaller, Js.
    Submitted on briefs January 13
    officially released April 15, 1997

      Melvin J. Silverman filed a brief for the appellants (defendants).

      Katherine T. Blakeslee filed a brief for the appellee (plaintiff).
   DUPONT, C. J.

The sole question on appeal is whether a trial court, on its own motion, has the power to open a judgment of dismissal more than four months after the judgment was rendered when it is clear that the judgment was originally rendered because of an administrative mistake and a timely motion to open had previously been made and denied. The defendants appeal from the opening of such a judgment, claiming the trial court lacked subject matter jurisdiction to open the judgment.

In the usual case, a trial court loses personal jurisdiction to act in any way with reference to that case four months after a judgment of dismissal is rendered. This is not the usual case.

The relevant facts are not disputed. On November 10,1994, the plaintiffs action was “dismissed with prejudice” for failure of the parties to attend a pretrial conference and notice of the dismissal was issued on November 14, 1994. On January 9, 1995, the plaintiff filed a motion to open the dismissal. The defendants objected, and the trial court sustained the defendants’ objection, in effect denying the plaintiffs motion to open. Notice of the court’s action was issued on July 6, 1995. On July 26, 1995, the plaintiff appealed to this court from the denial of his motion to open. While the appeal was pending, the trial court reversed itself and sua sponte, on August 3, 1995, granted the plaintiffs motion to open the judgment. The plaintiff then withdrew its appeal. The reason for the court’s sua sponte action was that it determined that the case should not have been dismissed on November 10, 1994, for an alleged failure to attend a pretrial conference because the case had already been tried to conclusion by an attorney fact finder who had issued his report prior to that date and motions were pending relating to the report.

The defendants argue that the court had no jurisdiction as of August 3, 1995, to open its judgment of dismissal because four months had elapsed since the original judgment of November 10, 1994.

The plaintiffs motion to open the judgment of dismissal was timely and could have been acted on at any time thereafter without the loss of the trial court’s jurisdiction to act. Infante v. Porath, 29 Conn. App. 465, 615 A.2d 1073 (1992). Thus, the trial court could have ruled on the motion to open more than four months after the judgment was rendered, without a loss of jurisdiction, as long as the motion to open was timely. This court has jurisdiction to review whether a trial court had jurisdiction to open a judgment, and if this court determines that the trial court did have jurisdiction, this court may effect the opening of a judgment of dismissal that the trial court believed it had no power to open. Id.

This case is a variation on the Infante theme. Here, the trial court determined it had jurisdiction to open a judgment more than four months after a judgment of dismissal, and in Infante the trial court determined that it did not have such jurisdiction. The question for us is not whether the denial of a motion to open a judgment of dismissal after a timely filing of the motion ended the power of the court to act further in the matter, but whether the court retained jurisdiction to grant a timely motion to open after having denied the motion.

In this case, the trial had concluded, the attorney fact finder’s report had been issued, and motions relating to the report were pending. Obviously, the case should never have been put on a pretrial list or dismissed for failure of the plaintiff to attend a pretrial conference. After the court refused to open its judgment of dismissal, the plaintiff took a timely appeal to this court. When the trial court reversed its original denial of the plaintiffs motion to open and granted the motion, the plaintiff withdrew its appeal because the appeal then became moot. If the court had opened the judgment without having previously denied a motion to open, it would have had jurisdiction because it is the date of filing of the motion that would control. Infante v. Porath, supra, 29 Conn. App. 465. We conclude on the basis of the facts of this case that the trial court retained jurisdiction to open the judgment and to correct an injustice.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the lime of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       An affidavit of the plaintiffs attorney was before the trial court when it originally considered the plaintiffs motion to open stating that the court had been notified prior to November 10,1994, that the case should not have appeared on the pretrial calendar.


author: PER CURIAM.

text:
    SOUTHEASTERN CONNECTICUT REGIONAL RESOURCES RECOVERY AUTHORITY ET AL. v. AMERICAN REF-FUEL COMPANY OF SOUTHEASTERN CONNECTICUT AMERICAN REF-FUEL COMPANY OF SOUTHEASTERN CONNECTICUT v. CONNECTICUT RESOURCES RECOVERY AUTHORITY ET AL.
    (15911)
    (16270)
    Heiman, Hennessy and Spallone, Js.
    Argued January 27
    officially released April 15, 1997

      Roger E. Koontz, with whom were Robert E. Wright and, on the brief, William B. Heinrich, for the appellants (plaintiffs in the first case, defendants in the second case).

      William H. Narwold, with whom was William H. Bright, Jr., for the appellee (defendant in the first case, plaintiff in the second case).
   PER CURIAM.

Southeastern Connecticut Regional Resources Recovery Authority (Southeastern Recovery) and Connecticut Resources Recovery Authority (Connecticut Recovery) appeal from the judgment of the trial court denying their application to vacate an arbitration award in favor of American Ref-Fuel Company of Southeastern Connecticut (Ref-Fuel) and granting Ref-Fuel’s application to confirm the arbitration award. On appeal, Southeastern Recovery and Connecticut Recovery claim that the trial court improperly failed to hold that (1) the arbitration award must be based on the service agreement as required by the submission, (2) the arbitrator exceeded his powers and failed to issue a mutual, final and definite award and (3) the arbitrator exceeded his powers by issuing an award that manifestly disregarded the law. We affirm the judgment of the trial court.

Southeastern Recovery is a subdivision of the state of Connecticut that provides solid waste disposal services to its member municipalities. Connecticut Recovery is also a subdivision of the state of Connecticut that develops solid waste processing and disposal facilities. Ref-Fuel is a company that constructed and operates a waste to energy facility (facility) located in Preston. In December, 1987, Connecticut Recovery and Ref-Fuel entered into a service agreement, under which Ref-Fuel agreed to construct and operate the facility to provide waste processing services, and Connecticut Recovery agreed to issue bonds to finance the facility and to pay Ref-Fuel a service fee for its costs and services. Under a separate agreement between Southeastern Recovery and Connecticut Recovery, Southeastern Recovery agreed to deliver waste from its member municipalities to the facility and to pay the costs incurred by Connecticut Recovery under its service agreement with Ref-Fuel. Fees to cover those costs are collected by Southeastern Recovery from its member municipalities under separate waste management agreements. The service fees payable to Ref-Fuel from Connecticut Recovery are based on an estimate formula in the parties’ agreement and are payable on a monthly basis.

Following the 1993-1994 contract year, a dispute arose as to the amount due from Connecticut Recovery to Ref-Fuel for service fees and the interest on previous service fee underpayments. Pursuant to the service agreement, the parties agreed to submit their dispute to an independent third party for binding arbitration. On August 25, 1995, the independent third party rendered his final decision and awarded Ref-Fuel a total of $2,523,469.89. Southeastern Recovery and Connecticut Recovery filed an application to vacate and Ref-Fuel filed an application to confirm. The trial court confirmed the arbitration award. Southeastern Recovery and Connecticut Recovery appeal to this court from the judgment of the trial court.

We are persuaded by our examination of the record, briefs and arguments of the parties that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Southeastern Connecticut Regional Resources Recovery Authority v. American Ref-Fuel Co., 44 Conn. Sup. 482, 692 A.2d 874 (1996). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful puipose for us to repeat the discussion contained therein. See Kagan v. Alander, 42 Conn. App. 92, 677 A.2d 1391 (1996; Federal Hom,e Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 667 A.2d 806 (1995); State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993).

The judgment is affirmed.

       “The submission . . . defines the scope of the entire arbitration proceeding by specifically delineating the issues to be decided. . . . No matter outside that submission may be included in the award.” (Citations omitted.) Board of Education v. AFSCME, 195 Conn. 266, 271-72, 487 A.2d 553 (1985).

       The contract year runs from July 1 to June 30.

       The trial court memorandum that we adopt, filed on March 22, 1996, addresses only the application to vacate. On July 22,1996, the court granted Ref-Fuel’s application to confirm by notation at the end of the application and incorporated that decision in the consolidated judgment rendered on both files. The judgment states: “The court, having heard the parties . . . makes, in these consolidated actions, the findings set forth in its memorandum of decision . . . filed on March 22, 1996.”


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. KIMBERLY P. SCHIAPPA
    (14450)
    Dupont, O. J., and Landau and Hennessy, Js.
    Argued December 12, 1996
    officially released April 15, 1997

      Elisabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant, Kimberly P. Schiappa, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). On appeal, the defendant claims that the trial court improperly (1) admitted a hearsay statement, (2) permitted the jury to make a preliminary finding in connection with the determination of the admissibility of an adoptive admission by silence, (3) found the evidence sufficient to sustain her manslaughter conviction and (4) denied her request to recharge the jury.

The jury reasonably could have found the following facts. On December 11, 1991, the defendant, an employee at Sikorsky Aircraft in Stratford, and a coworker, Stephen Staffy, met after work. They went to a liquor store and then to Staffy’s house in Trumbull, where he lived with his roommate Gary Meier. The defendant and Staffy arrived at the house at approximately 5 p.m., when Meier, a bartender at the Huntington Inn, was leaving for work. The defendant and Staffy remained at the house, consumed alcohol and engaged in sexual intercourse. Sometime thereafter, they left the house and went to a few bars before stopping at the LIuntington Inn, where they saw Meier. They left the Huntington Inn around 11 p.m. and drove to Bridgeport to purchase drugs. While in Bridgeport, they were confronted by the defendant’s husband, James Sehiappa.

Prior to confronting the defendant and Staffy, James Sehiappa, who worked at the Country Home Bakeiy located in Bridgeport, was working the third shift from 11:30 p.m. to 7:30 a.m. James Sehiappa requested permission to leave work early, at about 12:50 a.m., because his son James, who was twelve years old, was home alone. Instead of going home, however, James Sehiappa went looking for his wife, the defendant.

As James Sehiappa approached the defendant and Staffy in his pickup truck, Staffy drove off and unsuccessfully attempted to evade him. James Sehiappa followed them into Saint John’s cemetery in Stratford and, upon stopping, exited his pickup truck and approached Stafly’s car. Staffy reached into the backseat of his car, grabbed a softball bat, exited his car and then proceeded to hit James Sehiappa numerous times with the bat. Staffy also kept a knife under the front seat of his car. James Sehiappa was stabbed in the neck and the back. The defendant and Staffy left the scene and drove back to Staffy’s house.

An employee of the Ella Grasso Center, located adjacent to the cemetery, heard noises coming from the area of the cemetery at approximately 1:10 a.m. The employee called her supervisor, Delores Evans, and told her what she had heard. After hearing more noises from the same area, Evans called the Stratford police at approximately 1:15 a.m. Officer Thomas Clements was dispatched to the location and, upon entering the cemetery, noticed a pickup truck. Clements exited his patrol car and observed a white male, later identified as James Schiappa, lying in front of the truck. He showed no signs of life.

Meanwhile, Meier returned home from work and, before exiting his car, was approached by Staffy who said, “Turn off the lights, I just killed somebody.” As this was said, the defendant was standing behind Staffy. The defendant, Staffy and Meier went into the house and shortly thereafter Staffy, holding a pair of boots and a leather jacket, said to Meier, “This stuff has to go.” Staffy put the boots, jacket and a knife in a sheath into a plastic bag and gave the bag to Meier, who took it to Juniper Ridge Road and threw it into a pond. He then returned home.

The next day, a highway supervisor employed by the town of Trumbull noticed that the pond on Juniper Ridge Road was high and saw a garbage bag against the outflow pipe. He pulled the bag ashore and in the process ripped the bag. In the bag were a pair of boots, a leather jacket and a knife in a sheath. Detective Richard Yeomans of the Stratford police department was called to the pond and observed the contents of the bag, including a canceled check belonging to Staffy found in the jacket. The items were tested and the tests revealed a blood type matching that of James Schiappa on the boots and the jacket.

I

The defendant first claims that the trial court improperly admitted a hearsay statement. We agree.

Additional facts are necessary for the resolution of this issue. After Meier tossed the plastic bag containing Staffy’s leather jacket, boots and knife into the pond, he returned home and told Staffy to turn himself in to the police. Meier expressed concern to Staffy that the defendant would be caught and implicate Staffy in the crime. According to Meier, Staffy responded, “She’s not going to say nothin’. She beat his ass too.”

The defendant argues that Staffy’s statement, “She’s not going to say nothin’. She beat his ass too,” given to allay Meier’s concern that the defendant would be caught and inculpate Staffy, was inadmissible hearsay. The defendant argues that the statement does not fall under any recognized hearsay exception, was not made in circumstances assuring reliability and was not corroborated by any other evidence in the case.

The state argued at trial that the statement was admissible as a declaration against penal interest, as a prior inconsistent statement, and as impeachment of Staffy’s testimony that he could not remember making this statement to Meier. The trial court found that the statement was reliable and admitted it under the declaration against penal interest exception to the hearsay rule. On appeal, we limit our review to whether the trial court properly concluded that the statement satisfied the declaration against penal interest exception to the hearsay rule.

The principal grounds for the exclusion of hearsay statements are the “absence of an oath and the lack of the test of cross-examination. Shea v. Hyde, 107 Conn. 287, 289, 140 A. 486 [1928]. See also State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 [1979]; General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548 [1967], A third concern has also been expressed: the lack of the personal presence of the out of court declarant, which results in the jury’s inability to observe the declarant’s demeanor so as to judge credibility. Douglas v. Alabama, 380 U.S. 415, 418-19, 85 S. Ct. 1074,13 L. Ed. 2d 934 [1965].” State v. DeFreitas, 179 Conn. 431, 440, 426 A.2d 799 (1980).

Exceptions to the hearsay rule have arisen when the party offering the hearsay evidence sufficiently establishes the necessity and reliability of that evidence. “The necessity factor is reflected in the prerequisite that the declarant be unavailable. . . . Several exceptions to the hearsay rule require the declarant to be unavailable as a witness at the present trial.” (Citation omitted.) Id., 440-41.

A requirement for admitting third party declarations against penal interest is the unavailability of the declarant’s testimony. State v. Bryant, 202 Conn. 676, 694, 523 A. 2d 451 (1987); State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980). Connecticut has adopted the definition of unavailability set forth in Rule 804 (a) of the Federal Rules of Evidence, the relevant portion of which includes situations where the declarant “testifies to a lack of memory of the subject matter of the declarant’s statement.” Fed. R. Evid. 804 (a) (3); State v. Lynch, 21 Conn. App. 386, 396, 574 A.2d 230 (1990). A determination of unavailability is normally a question of fact within the trial court’s discretion. Fontaine v. Coyle, 174 Conn. 204, 209, 384 A.2d 616 (1978); State v. Lynch, supra, 398.

The trial court found that Staffy was selective in his memory which “virtually . . . [made] him unavailable to testify” on this issue. The record reflects, however, that, at trial, Staffy did not testify to a lack of memory of the subject matter to establish unavailability. Our review of Staffy’s testimony reveals that he was able to recall a substantial portion of the evening’s events. Staffy testified in part to the following course of events on December 11 and 12, 1991. He remembered leaving work with the defendant, going to a liquor store and then to his house. He remembered seeing Meier, who was leaving for work, and then engaging in sexual intercourse with the defendant. He testified that they left the house and went to a couple of bar’s. Later, they stopped at the Huntington Inn for a couple of drinks and to see Meier, and then went to Bridgeport to purchase drugs. He remembered seeing James Schiappa, trying to evade him and then confronting him at the cemetery. He testified that he hit James Schiappa with the bat because he felt threatened and, further, that he did not check to see if James Schiappa was alive when he and the defendant left the cemetery because he was nervous and scared. He also remembered returning to his house with the defendant, seeing Meier and telling him that he had been in a fight.

It is clear from the foregoing that Staffy testified at great length about the events of December 11 and 12, 1991, and was available to testify and to be cross-examined. While he was unable to recall some specific facts, that did not amount to a lack of memory of the subject matter. We decline to extend the scope of unavailability to include situations, as in this case, where a witness testifies, but, because he is unable to recall a few specific facts regarding an event that occurred almost three years prior, is found unavailable. Our search of Connecticut case law has failed to reveal a case that has extended the scope of unavailability to that extent. The effect of expanding the scope of unavailability to include such situations would almost eviscerate the requirement of necessity in determining whether a hearsay statement is admissible. Such a result is undesirable and would likely lead to the admission of unreliable statements.

Here, the trial court improperly found that Staffy was unavailable and, thus, abused its discretion. Because Staffy was not unavailable, the trial court improperly admitted the hearsay statement into evidence as a declaration against penal interest.

II

The defendant next claims that the trial court improperly permitted the jury to make a preliminary factual determination in determining the validity of an adoptive admission by silence. The defendant neither filed a request to charge nor noted an exception to the instructions she now challenges and, therefore, this claim is unpreserved. The defendant requests, however, Golding review; State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); arguing that this claim implicates her due process rights to an adequately instructed jury. Since the record is adequate for review and the claim advanced implicates a fundamental constitutional right, the defendant has satisfied the first two prongs of Golding, and is entitled to a review of her unpreserved claim.

A challenge to a jury instruction requires a review to determine whether it is reasonably possible that a jury was misled; State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); and the instruction is to be read as a whole to judge its total effect rather than its individual parts. State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995). “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. ...” (Citation omitted; internal quotation marks omitted.) State v. Panella, 43 Conn. App. 76, 80, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996). We further note that it is “well established that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977).” State v. Preyer, 198 Conn. 190, 198, 502 A.2d 858 (1985).

In Meier’s December 15,1991 statement to the police, he stated that Staffy, in response to Meier’s inquiry about what happened, said, “Her old man started some shit and I killed him. Or we killed him.” At trial, Meier testified that after Meier arrived home from work on December 12, 1991, Staffy said, “Her old man started some shit and I killed him.” On cross-examination Meier testified that he did not think that Staffy said “We killed him.” On redirect examination Meier was asked, after reviewing his sworn police statement of December 15, 1991, whether reviewing the statement helped him recall what Staffy had said, and Meier responded, “I don’t believe so.” The trial court charged the jury that it should make the preliminary determination as to what was said and thereafter, based on that determination, should consider the statement as an adoptive admission by silence on the part of the defendant.

The defendant’s contention that the trial court improperly delegated the preliminary determination of what Staffy said to the jury implicates the constitutional right of the defendant to an adequately instructed jury. The trial court, rather than the jury, should have determined whether Staffy said “I killed him” or “We killed him.” Although issues of fact are usually for the jury, in some instances, preliminary questions of fact are properly decided by the court. State v. Estrada, 26 Conn. App. 641, 651, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992). “Where hearsay accusations are sought to be introduced as evidence against a defendant in a criminal proceeding on grounds that the hearsay was ‘adopted’ by the defendant . . . the trial court must first determine that the asserted adoptive admission be manifested by conduct or statements which are unequivocal, positive, and definite in nature, clearly showing that in fact defendant intended to adopt the hearsay statements as his own. . . . State Village of New Hope v. Duplessie, 304 Minn. 417, 425, 231 N.W.2d 548 (1975). State v. Morrill, 197 Conn. 507, 537, 498 A.2d 76 (1985).” (Internal quotation marks omitted.) State v. Moye, 199 Conn. 389, 393, 507 A.2d 1001 (1986).

Our Supreme Court has developed standards to govern the admissibility of evidence of a defendant’s prearrest silence in the face of accusation. “[T]he trial judge must decide, as a preliminary matter, whether proffered evidence of a defendant’s silence in the face of accusation is, under the circumstances, sufficiently probative of assent by the defendant to the accusatory statement made in his presence. See Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315, 268 A.2d 639 (1970); Obermeier v. Nielsen, [158 Conn. 8, 11, 255 A.2d 819 (1969)]. The inference of assent may be made only when no other explanation is equally consistent with silence. State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985); State v. Harris, 182 Conn. 220, 229,438 A.2d 38 (1980).” State v. Estrada, supra, 26 Conn. App. 651-52.

In this case, the determination of what Staffy said was a preliminary question of fact and, thus, a factual predicate to be decided by the trial court. Before the trial court could make a determination that the asserted adoptive admission was manifested by conduct or statements that were unequivocal and definite in nature, it first had to determine what Staffy said. The instruction was improper as a matter of law and, therefore, a violation of the defendant’s due process right to an adequately instructed jury.

Although the evidence before the trial court, including Staffy’s two statements, was sufficient to sustain the verdict on the manslaughter in the first degree count, we find that the admission of the two statements was improper. As a result of our resolution of the defendant’s first two claims, and to be consistent with State v. Gray, 200 Conn. 523, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), we refrain from reviewing the defendant’s remaining claims.

In Gray, our Supreme Court, adopting the reasoning of the Missouri Supreme Court in State v. Wood, 596 S.W.2d 394, 398-99 (Mo.), cert. denied, 449 U.S. 876, 101 S. Ct. 221, 66 L. Ed. 2d 98 (1980), stated: “When the trial court erroneously admits evidence resulting in reversal . . . the State should not be precluded from retrial even though when such evidence is discounted there may be evidentiary insufficiency. The prosecution in proving its case is entitled to rely upon the rulings of the court and proceed accordingly. If the evidence offered by the State is received after challenge and is legally sufficient to establish the guilt of the accused, the State is not obligated to go further and adduce additional evidence that would be, for example, cumulative. Were it otherwise, the State, to be secure, would have to assume eveiy ruling by the trial court on the evidence to be erroneous and marshall and offer eveiy bit of relevant and competent evidence. The practical consequences of this would adversely affect the administration of justice, if for no other reason, by the time which would be required for preparation and trial of every case. This is consistent with Burks v. United States, [437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)], which lists among examples of trial error which do not invoke the Double Jeopardy Clause with regard to retrial, the incorrect receipt or rejection of evidence.” (Internal quotation marks omitted.) State v. Gray, supra, 200 Conn. 538-39. “Double jeopardy does not automatically bar retrial [even] where an insufficiency of evidence results from material being held on appellate review to have been erroneously admitted at trial.” (Internal quotation marks omitted.) Id., 539, quoting State v. Van Isler, 283 S.E.2d 836, 838-39 (W. Va. 1981).

Because we cannot say unequivocally that the state will be unable to meet its burden of proof without the two statements we have found to be inadmissible, we do not exclude a retrial. See State v. Gray, supra, 200 Conn. 540.

The judgment is reversed as to the conviction of manslaughter in the first degree and the case is remanded for further proceedings on that count.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       The defendant was also convicted of hindering prosecution in the first degree and was sentenced to a five year term of imprisonment on that count. She has not challenged her conviction with respect to that count.

       Meier testified as follows:
      “[Prosecutor]. You’ve indicated in testimony there was a discussion between yourself and Mr. Staffy regarding him turning himself in. I think we got to the point, and I’ll ask you the question now, please, what did you say to him, please?
      “[Meier]: I said you should turn yourself in because she’s going to get caught for this and she’s going to tell on you and it would be better if you were first.
      “[Prosecutor]: And what did he say in response to that, please?
      “[Meier]: He said, she’s not going to say nothin’. She beat his ass, too.”

      ‘The trial court, after hearing argument from both counsel, ruled as follows: “What I’m being told here is that this is a third party statement which is against penal interest and it does appear to be that, certainly, and whether it can be used under circumstances that would be reliable or whether it was made under circumstances that would be reliable. Certainly it would appear that Mr. Staffy would have nothing to gain by making this statement to this individual. If he was in custody, of course, then it would be a different ball game but he’s making it to his roommate or his housemate whom he apparently had some faith in because he was asking to dispose of items which were prejudicial [to] him so from the reliability standpoint it would appear to fit that category and it also, as to his availability to testify, certainly Mr. Staffy was here and was subject to examination and cross-examination but I think it goes without saying is that he was very selectively unable to remember a good deal of what occurred either for reasons that he was under the influence of the alcohol or drugs or both or that he just choose not to remember. The court can’t really make that determination but he seemed to be kind of selective in his memory. That virtually makes him unavailable to testily certainly on an issue such as this. So, I think under all the circumstances that I think that the statement can be admitted as being reliable and being as against interest and these are against his interest as well as against the interest of the defendant and so it’s not just that it’s self-serving to exculpate him, he’s inculpating himself with the statements. So I believe under all the factors the corut can determine it to be admissible. I will allow it.”

       The defendant also claims that the admission of Staffy’s statement violated her state and federal constitutional rights to confrontation. Because we dispose of this claim on evidentiaiy grounds, we need not address this claim on state or federal constitutional grounds. See State v. Bryant, supra, 202 Conn. 692 n.15; State v. Gold, 180 Conn. 619, 639-40, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

       The trial court charged the jury as follows: “Now, there is also something in the law which is identified as adoptive admissions of a defendant. That is, statements made within the accused’s hearing which are relevant and material and to which she makes no reply may be given in evidence as indicative of conduct on her part and circumstances show that she heard, understood and comprehended the statement and the facts are known to her and she had an opportunity to speak and the circumstances naturally called lor a reply from her. In this case you heard the testimony of Mr. Gary Meier as to a statement made by Stephen Staffy in the presence of the defendant implicating her shortly after the—in the statement made—shortly after the beating and stabbing. Now, such an accusation ordinarily calls for a response and consequently the ensuing silence under circumst anees where the defendant should have protested her innocence could be construed as an admission of guilt. The statement that the state is relying on is alleged to have been made, according to Mr. Meier’s testimony when Stephen Staffy in the presence of the defendant stated in effect, and I’m not quoting it exactly, but stated in effect that her old man started some shit and I or we killed him. If you believe that Staffy said we killed him then it would have been an accusation against the defendant which would ordinarily call for a protesting response. If you believe that Staffy said I killed him then, of course, no response would be ordinarily expected or if you believe that the evidence is insufficient for you to make such a determination either way then the slate would have failed to establish that the statement implicated the defendant and you could not treat her silence as an adoptive admission.”

       Under Golding, a defendant can prevail on an unpreserved claim of constilutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

       The defendant also requested review under the plain error doctrine. See Practice Book § 4061.


text:
    STATE OF CONNECTICUT v. ANDREW J. LEDUC
    (16044)
    Foti, Lavery and Spear, Js.
    Argued February 25
    officially released April 15, 1997

      Michael R. Hasse, special public defender, for the appellant (defendant).

      JohnP. Gravalec-Pannone, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   PER CURIAM.

In accordance with our remand in State v. Leduc, 40 Conn. App. 233, 670 A.2d 1309 (1996), the trial court conducted an in camera inspection of the department of children and families file and found that the file does not contain (1) exculpatory evidence, (2) information material and favorable to the defense, (3) favorable evidence that might have led the jury to entertain a reasonable doubt about guilt, (4) information that probably would have changed the outcome of the trial, or (5) any evidence that is material and favorable to the defendant’s case.

Our in camera review of the department file leads us to conclude that the court on remand properly found that the file contained no evidence that was favorable and material to the defendant. In its review, the trial court fully complied with the directive of this court by our remand and properly affirmed the judgment.

The judgment is affirmed.


text:
    DEAN PARROTT v. LIQUOR CONTROL COMMISSION ET AL.
    (15779)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued February 18
    officially released April 15, 1997

      Robert A. Fuller, with whom, on the brief, was George W. Ganim, Sr., for the appellants (intervening defendants).

      John F. Fallon, for the appellee (plaintiff).

      Robert F. Vachelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (named defendant et al.).

      Christopher J. Smith, for the appellee (defendant Bart Center, Inc.).
   PER CURIAM.

In this action, the plaintiff sought a writ of mandamus to compel the defendant liquor control commission (commission) to issue the package store liquor permit that it had previously approved. The trial court found that the plaintiff had established (1) that it had a clear legal right to the issuance of the permit, (2) that, under the circumstances of this case, the issuance was a ministerial act and (3) that the plaintiff had no adequate legal remedy other than mandamus. Consequently, the trial court ordered that a writ of mandamus issue requiring the commission and its director to issue the permit. The intervening defendants, who opposed the granting of the permit, appealed to this court from the trial court’s decision. While the appeal was pending in this court, the commission issued the permit to the plaintiff.

“An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) B & D Associates v. Board of Examiners for Professional Engineers & Land Surveyors, 41 Conn. App. 827, 830, 677 A.2d 982 (1996). The issuance of the permit rendered this appeal moot.

The appeal is dismissed.

      The director of the liquor control commission was also named as a defendant.


author: FOTI, J.

text:
    JULIUS BROWN v. COMMISSIONER OF CORRECTION
    (16034)
    O’Connell, Foti and Freedman, Js.

      Argued February 26
    officially released April 15, 1997

      William S. Palmieri, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   FOTI, J.

The petitioner appeals from the trial court’s dismissal of his writ of habeas corpus. He challenges the court’s determination that a prior court’s denial of an ineffective assistance of counsel claim brought by way of a petition for a new trial is res judicata with respect to that same claim asserted in the present petition. We affirm the judgment of the habeas court.

The following facts are relevant to this appeal. The petitioner was convicted, after a jury trial in the judicial district of New Haven, of a number of offenses. On April 17, 1992, he was sentenced to be confined for a total effective sentence of twenty-two years. He thereafter filed an appeal and a petition for a new trial. At the evidentiary hearing for his petition for a new trial, the petitioner represented himself. He claimed that his trial counsel was incompetent because he was taking medication, that counsel failed to cross-examine witnesses adequately and failed to obtain medical documents that would have assisted the defense. The trial court, DeMayo, J., rejected these claims on August 31, 1992, and found that the petitioner had received adequate assistance of counsel, that the petitioner had no viable defenses and that he was in no way prejudiced by his counsel’s representation. On November 17,1992, the petitioner filed a petition for a writ of habeas corpus and, on November 1,1995, he filed an amended petition. His only claim involved ineffective assistance of trial counsel. Specifically, he claimed that trial counsel failed (1) to conduct an adequate pretrial investigation, (2) to demand that the exact times that the alleged offenses were committed be specified in the information or in a bill of particulars, (3) to demonstrate to the jury that the alleged victim had lied, (4) to prove to the jury that the petitioner had been the victim of assault and unreasonable force by one or more of the arresting officers, and (5) to prepare and to submit an adequate and proper request to charge the jury. He also alleged that prior to and during the trial his attorney was terminally ill and was disoriented and confused as a result of medication.

On November 8, 1995, the respondent filed a motion to dismiss the petitioner’s amended petition, citing Practice Book § 529H (3) and (5) and invoking the doctrines of res judicata and collateral estoppel. The habeas court, in a thorough and well reasoned memorandum of decision, dismissed the petition on May 6, 1996, concluding that the petitioner’s habeas claims were barred by the principle of res judicata.

The petitioner argues that a claim of ineffective assistance of counsel must be resolved in a habeas corpus proceeding, where the standard of proof is greater than in a petition for a new trial, therefore affording him greater protection. He also argues that as a pro se litigant he should be entitled to less strict construction of the law so as to allow his claims to be heard fully and fairly. We do not agree.

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.

“[Our Supreme Court has] adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. . . . [W]e compare the complaint in the second action with the pleadings and the judgment in the earlier action. . . . The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.” (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 191-93, 680 A.2d 1243 (1996); Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589-92, 674 A.2d 1290 (1996).

The purpose of a law suit is not only to do substantial justice but also to bring an end to controversy. Orselet v. DeMatteo, 206 Conn. 542, 550, 539 A.2d 95 (1988). Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction. Dunham v. Dunham, 221 Conn. 384, 391, 604 A.2d 347 (1992). The doctrine applies to criminal as well as civil proceedings and to state habeas corpus proceedings, including matters previously litigated in federal court. McCarthy v. Warden, 213 Conn. 289, 294—98, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).

This case presents a clear example of the type of relitigation that the doctrine of res judicata is designed to prevent. We determine, as did the habeas court, that the judgment rendered by the trial court in the prior action, involving the petition for a new trial, constituted a judgment on the merits of the issue of ineffective assistance of counsel. We conclude, therefore, that the petitioner’s habeas action is barred by the doctrine of res judicata. We also conclude that the habeas court properly determined that there was no meaningful difference between the claim litigated in the petition for a new trial and that asserted in the habeas proceeding.

The habeas court, in acting on the respondent’s motion to dismiss, accepted as evidence a transcript of the proceedings before the trial court at the petitioner’s petition for a new trial, along with the memorandum of decision in the judgment rendered by that court. At the hearing on the petition for a new trial, the petitioner informed the court that he intended to prove that his trial counsel was taking a mind altering drug at the time he was representing the petitioner in his trial, and that trial counsel was “inadequate.” The petitioner then called his trial counsel as a witness, whom he questioned extensively concerning not only medication taken during the trial, but also his pretrial activities, including whether he had obtained the police report, the victim’s statements and the results of medical tests performed on the petitioner after his arrest. The petitioner argued that trial counsel had not conferred with him adequately before trial, had failed to raise self-defense and diminished capacity as issues and had not adequately cross-examined the complaining witness at trial in regard to her own police record.

The trial court informed the petitioner that his burden was “to show two things, that this performance was substandard and that it caused you to be convicted.” The court stated that “[i]f this were a habeas corpus proceeding, that would be what you would be trying to prove. Here, you’re trying to show through his performance [that] a grave injustice was done, and you were improperly and unjustly convicted.”

In its analysis of the petition for a new trial, the trial court specifically determined that “it is appropriate for the court to deal with the overall issue of adequate representation.” The court expressed its view that the evidence against the petitioner at trial was overwhelming and that trial counsel had made the most of a difficult situation.

The petitioner conceded, at oral argument, that a claim of ineffective assistance of counsel can be raised in a petition for a new trial. He claims, however, that he raised additional issues before the habeas court than he did before the prior court. We find this argument to be without merit. He had a fair hearing before that prior court, and his claims were fully litigated. He is, therefore, barred from any future actions on matters raised or that could have been raised in the first proceeding. See Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 592. A judgment is final not only as to every matter that was presented to sustain the claim, but also as to any other admissible matter that might have been offered for that purpose. State v. Aillon, 189 Conn. 416, 423-24, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983).

We conclude that because the petitioner has attempted to assert, in his habeas petition, a claim that has previously been adjudicated fully on its merits, the habeas court properly dismissed his petition.

The judgment is affirmed.

In this opinion the other judges concurred.

        State v. Brown, 35 Conn. App. 699, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994).

       Practice Boole § 529H provides in relevant part: “The court may, at any time . . . dismiss the petition ... if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . .
      “(5) any other legally sufficient ground for dismissal of the petition exists.”

      ’The petition for a new trial contained in a second count a separate claim that trial counsel had failed to obtain and to use as evidence medical documents that, could have assisted in his defense.

       We find it unnecessary to review the petitioner’s meritless claim that because he represented himself at the hearing for his petition for a new trial, he is in some way entitled to greater protection of the law.


text:
    GINO ORIGLIA v. CALVIN TROWBRIDGE ET AL.
    (15689)
    O’Connell, Lavery and Hennessy, Js.
    Argued March 4
    officially released April 15, 1997

      Calvin D. Trowbridge, pro se, the appellant-appellee (named defendant).

      Edward S. Domnarski, Jr., for the appellee-appellant (plaintiff).
   PER CURIAM.

This case arose from a small claims matter in which the plaintiff, Gino Origlia, sought to recover a $1000 deposit that he had given to the defendants’ real estate broker. The case was transferred to the regular docket of the Superior Court, and the defendant counterclaimed for damages resulting from the plaintiffs repudiation of the real estate agreement.

An attorney trial referee found that the plaintiff materially breached the purchase and sale agreement for the purchase of the defendants’ real property. The attorney referee found that the defendants were entitled to the $1000 deposit as liquidated damages on their counterclaim. The attorney referee believed, however, that the defendants had already been paid that amount from the deposit given to the realtor and, on the basis of that belief, recommended that the trial court render judgment for the plaintiff on the counterclaim. The trial court accepted the attorney referee’s recommendation and rendered judgment for the plaintiff on the counterclaim. Nevertheless, the $1000 is being held in escrow by the real estate broker who was involved in the transaction.

After considering the oral arguments and reviewing the record and files of this case, we agree with all of the attorney referee’s recommendations on which the trial court rendered judgment except the decision concerning the counterclaim. Because it is an uncontroverted fact that the $1000 deposit continues to be held in escrow by the real estate broker pursuant to § 20-328-7a of the Regulations of Connecticut State Agencies, the defendant is entitled to that sum.

The judgment for the plaintiff on the counterclaim is reversed and the case is remanded with direction to render judgment for the defendant on the counterclaim in the amount of the $1000 deposit.

       The defendants are Calvin Trowbridge and Lee Trowbridge.

       Regs., Conn. State Agencies § 20-328-7a (b) provides: Any real estate broker who, in the course of the real estate broker’s real estate business and in connection with any transaction, accepts from any principal, client or other person any moneys, to which the real estate broker is not personally and legally entitled, including but not limited to any down payment, earnest money, deposit, rental money or other money to be held by the real estate broker in trust, shall deposit such moneys in an escrow or trust account in a bank doing business in the State of Connecticut unless otherwise required by law.”