author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MARK WAYNE
    (AC 19830)
    Lavery, C. J., and Foti and Healey, Js.
    Argued September 21
    officially released November 14, 2000

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and David Gulick, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Mark Wayne, appeals from the judgment of conviction, rendered after a jury trial, of reckless endangerment in the first degree in violation of General Statutes § 53U-63, threatening in violation of General Statutes § 53a-62 and breach of the peace in violation of General Statutes § 53a-181 (a) (3). The trial court sentenced the defendant on each count to a term of two years, execution suspended after thirty days, with two years probation, concurrent, for a total effective sentence of two years, suspended after thirty days, and two years probation. The defendant claims that the court improperly instructed the jury regarding self-defense. We agree. The defendant also claims that the evidence was insufficient to sustain his conviction of any of the three charges. We disagree. We reverse the judgment of the trial court and remand the case for a new trial.

The jury reasonably could have found the following facts. On January 30,1999, at about 7:30 p.m., the defendant observed a dog belonging to his neighbor, Robert Nearing, Jr., enter his yard, at which point the defendant’s dog ran off to play with Nearing’s dog. The defendant, who holds a valid state permit to carry a firearm and was aimed with a .40 caliber handgun, followed the dogs into Nearing’s yard. Upon observing Nearing, the defendant said to him, “Can you keep your fucking dog tied?” The reply was, “What’s your fucking problem?” Nearing also told the defendant, “Drag your fucking ass. Go call the cops.” Nearing then called the defendant some profane names and punched the defendant in the head. When the defendant fell to the ground, his eyeglasses were knocked off his face and a lens popped out from the frame. The defendant then rose to his feet, withdrew his loaded handgun, pointed it at Nearing’s head and said, “What do you think about this?” Nearing at first stood still and then walked away to call the police. The defendant, who was forty-one years old at the time, had undergone hip replacement surgery in 1992. Nearing was substantially larger than the defendant.

I

The defendant first claims that the court’s jury instructions regarding self-defense were improper. The state and the defendant had filed requests to charge on self-defense. The state concedes, and we agree, that the court’s instructions were incorrect. The court improperly instructed the jury, in effect, that the act of pointing a loaded gun at another person constitutes a use of “deadly, physical force” as a matter of law. The state argues that the court should not have given a self-defense instruction because “the doctrine of self-defense was inapplicable, both as a matter of law and as a matter of fact.” The defendant thus, according to the state’s argument, received “a benefit to which he was not entitled.” We do not agree.

Self-defense is a statutory defense pursuant to General Statutes § 53a-19. The act of pointing a loaded handgun at another person fails to fit within the statutory definition of “deadly physical force” because it cannot “be reasonably expected to cause death or serious physical injury . . . .” General Statutes § 53a-3 (5). In addition to characterizing improperly the defendant’s act of pointing the gun, the court improperly confined the jury’s self-defense inquiry to determining whether the defendant was justified in using deadly physical force, that is, whether the defendant reasonably believed that Nearing was using or about to use deadly physical force on him or was inflicting or about to inflict great bodily harm on him.

The state argues that pointing a loaded handgun at someone involves no application of the use of physical force required to trigger the application of the self-defense statute, § 53a-19. The state claims that § 53a-19, which provides in relevant part that “a person is justified in using reasonable physical force upon another person to defend himself’; (emphasis added); requires an actual use and not merely a threat or show of force. The state further argues that although it requested a charge on self-defense, the facts did not warrant a self-defense instruction. Alternatively, the state argues that even if the defendant can be said to have “used” force in pointing the loaded handgun, the use of force was not at issue because none of the offenses for which the defendant was convicted contains an element that is based on the use of force. The state posits that the court’s deficient instructions were harmless and do not warrant a reversal of the judgment.

The defendant’s fundamental right to present a defense includes a proper instruction, if such is required, on the elements of self-defense. State v. Williams, 25 Conn. App. 456, 463, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). We review the charge as a whole to determine whether it presented the case to the jury so that no injustice would result. See State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993).

Our review of the entire instruction leads us to conclude that it was likely to confuse or mislead the jury, thereby causing prejudice to the defendant. While we do not agree with the defendant that the improper instruction had the effect of directing a verdict for the state, in considering it from the standpoint of its probable effect on the jurors in guiding them, it was reasonably probable that they were misled. The jury understood from the instruction that the defendant had used deadly physical force by admittedly having pointed the loaded gun at Nearing. The defendant was thus greatly prejudiced, and the jurors were left with an improper knowledge of the law so as to make it almost impossible for them properly to apply the facts relevant to the charges. The jury could not fairly perform its extremely difficult task, and, therefore, a new trial is required.

II

The defendant next claims that the evidence was insufficient to support his conviction of any of the crimes with which he was charged. We do not agree.

The standard for reviewing sufficiency of the evidence claims is well settled in this state. “When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Foster, 45 Conn. App. 369, 375, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997); see also State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); State v. Torres, 47 Conn. App. 205, 219, 703 A.2d 1164 (1997); State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996).

As to the crime of reckless endangerment in the first degree, the defendant claims that there was no evidence to show that he acted with extreme indifference to human life, that he acted recklessly or that he created a risk of serious physical injury to another person by pointing a loaded gun at Nearing. The defendant’s argument lacks merit, as do his arguments dealing with the evidence supporting his conviction for threatening and for breach of the peace.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-63 provides: “(a) A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.
      “(b) Reckless endangerment in the first degree is a class A misdemeanor.”

       General Statutes § 53a-62 provides: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.
      “(b) Threatening is a class A misdemeanor.”

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (3) threatens to commit any crime against another person or his property . . . .”

       Reckless endangerment in the first degree and threatening are both class A misdemeanors punishable by a term not to exceed one year. See General Statutes § 53a-36 (1). Breach of the peace, as charged herein, is a class B misdemeanor punishable by a term not to exceed six months. See General Statutes § 53a-36 (2). The sentences as imposed are illegal. Neither party briefed nor raised the issue either at sentencing or on appeal. The judgment file, which is part of the record, revealed the impropriety.

       Nearing testified that the phrase “drag your ass” meant “get the fuck out of my yard.”

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical iqjury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       Because we conclude as we do, we leave for another day the determination of whether the act of pointing a loaded gun constitutes the “use” of physical force. We recognize that a bizarre result would occur in concluding that it did not, i.e., to claim self-defense, one would actually have to make physical contact by shooting or striking another with 1he gun, rather than the obvious less violent act of merely pointing the weapon as a threat or show of force. The state argues that this inquiry is a question for the legislature, not the courts.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    TOWN OF WESTBROOK v. ITT HARTFORD GROUP, INC., ET AL.
    (AC 20451)
    Lavery, C. J., and Foti and Peters, Js.

      Argued September 26
    officially released November 21, 2000

      Stephen R. Beilis, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was Joseph M. Busker, Jr., for the appellees (named defendant et al.).
   Opinion

PETERS, J.

This civil appeal concerns the responsibility assumed by various insurers to defend a town against claims of tortious, contractual and statutory misconduct arising out of the termination of the town’s contract with an architect. The dispositive issue is whether the named insurers were entitled to summary judgment on their contention that the town did not qualify as an insured under the terms of the relevant policies. Contrary to the trial court, we conclude that the town was an insured and that the insurers’ motion for summary judgment should have been denied.

The plaintiff, the town of Westbrook (town), filed a complaint to recover the costs it had incurred in its defense against claims ar ising out of its allegedly wrongful termination of a contract with Carlin, Pozzi, Architects, P.C. (Pozzi). Pozzi had been hired to renovate several town school buildings. It brought two actions, one seeking arbitral relief principally from Robert Godi-ksen, chairman of the town building committee, and another seeking damages in federal court from a number of persons other than Godiksen. In both actions, Pozzi named the town as a defendant. In the arbitration proceedings, Pozzi alleged wrongful termination, injury to business reputation, tortious interference with contract, bad faith, breach of contract, failure to make payments due under the contract and copyright infringement. In federal court, Pozzi alleged copyright infringement and unfair trade practices. Although the town prevailed in both fora, it paid $487,770.36 in attorney’s fees and costs to do so.

In the first count of its complaint, the town sought recovery from the defendants, ITT Hartford Group, Inc., and related insurers, under various insurance policies issued as part of a special “Multi-Flex Policy” (Multiflex Policy). It is undisputed that the events at issue occurred within the policy period. It is likewise undisputed that the defendants denied the town’s request for defense in both the arbitration and the federal court proceedings. What is at issue is whether the coverage terms of the various policies protected the town from the loss that it had incurred.

The parties filed cross motions for summary judgment to resolve this dispute. The court granted the motion filed by the defendants and denied that filed by the town. The town has appealed.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

If, as in this case, the material facts are undisputed, appellate review of the granting of a motion for summary judgment is plenary. Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 156, 745 A.2d 178 (2000). We must decide whether the court properly concluded that the moving party was entitled to judgment as a matter of law. Id. De novo review is especially appropriate in an appeal based on a documentary record, concededly unambiguous, that is identical to the record before the trial court. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 494-95, 746 A.2d 1277 (2000).

Although other insurance coverages also were at issue, the focus of this appeal is on the proper construction of the terms of the “School District Wrongful Act Coverage” (School District Policy) and the relationship of those terms to an endorsement to the Multiflex Policy of the defendant ITT Hartford Group, Inc. In the defendants’ motion for summary judgment with respect to the School District Policy, the defendants raised only one issue. They argued that because, in their view, neither the town nor Godiksen was an insured under that policy, the town could not recover for losses that it had incurred in defending against Pozzi’s claims.

The question before us is whether the town’s rights are determined by the definition of “insured” contained in the School District Policy itself or whether, as the town maintains, they are enlarged by an endorsement to the Multiflex Policy. The court agreed with the defendants that only the School District Policy provisions are applicable. The court implicitly recognized that the endorsement to the Multiflex Policy, if applicable, would provide such coverage because Godiksen qualified as an appointed officer or member of any board or commission or agency of the town acting within the scope of his duties as such. The court concluded, nonetheless, that the endorsement was inapplicable because its language did not state expressly that it was so intended and therefore could not override the specific terms of the School District Policy.

The town argues that the court’s conclusion was improper because, reading the Multiflex Policy and the School District Policy together, the endorsement provides it coverage. We agree.

The Multiflex Policy is a cover policy applicable, as specified, to all its constituent parts, including the School District Policy. The Multiflex Policy included “Common Policy Declarations” that supplement “coverage parts . . . that are a part of this policy and that are not listed in the coverage parts . . . .” Item nine of the common policy declarations lists additional coverage parts, including an endorsement identified as IH12001185T. Endorsement IH12001185T indisputably contains a broad definition of the “town of Westbrook” that includes those who serve on its boards and committees, as did Godiksen. See footnote 8.

In defense of the court’s conclusion, the defendants make two preliminary arguments that do not address the merits. Neither is persuasive.

First, they argue that the town’s complaint did not contain a sufficient reference to the endorsement on which the town now relies. Whatever the ambiguities of paragraph twelve of the complaint might be, events have overtaken this argument. The implications to be drawn from the endorsement were considered on their merits by the court. The defendants have not identified where in the record they objected to the court’s plenary consideration of this issue. They have taken no appeal from any ruling of the court, evidentiary or otherwise. In effect, this argument has been waived.

Second, the defendants maintain that the town lacked standing to pursue its complaint at trial because only Godiksen was a named defendant in the underlying litigation. As noted previously in this opinion, the court record looks to the contrary. Furthermore, the court’s memorandum of decision does not mention any such possible discrepancy. We lack a basis on which to address this contention further. Although standing is a jurisdictional issue at trial, the defendants have cited no authority to suggest that it is a jurisdictional issue to be heard de novo in this court.

On the merits, the defendants rely, in their brief, as they did at trial, on the terms of the School District Policy by itself. Implicit in that argument is the proposition that the statement of coverage in that policy makes inapplicable any coverage statements that appear elsewhere in the Multiflex Policy. Previously in this opinion, we considered and rejected that argument. At oral argument in this court, to demonstrate further the alleged inapplicability of the endorsement, the defendants maintained that the terms of the endorsement itself preclude its applicability to the School District Policy. They attach significance to the fact that the endorsement states that it “ALSO APPLIES TO THE COMMERCIAL AUTO COVERAGE PART.” (Emphasis added.) That language, according to the defendants, should be construed as if it read APPLIES ONLY TO THE COMMERCIAL AUTO COVERAGE PART. There is no natural equivalence between “ALSO” and “ONLY,” and we are not prepared to import one. Further, to do so in this case would require us to ignore the remainder of the endorsement, which specifies the coverages to which the endorsement applies. We construe insurance contracts, like other contracts, so as to give effect to all of their provisions. O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 842, 669 A.2d 1221 (1996); Dobuzinsky v. Middlesex Mutual Assurance Co., 49 Conn. App. 398, 405, 714 A.2d 702, cert. denied, 247 Conn. 908, 719 A.2d 902 (1998).

Because the town has demonstrated that it is an insured under the Multiflex Policy and its School District component, read conjointly, the grant of summary judgment cannot be sustained on the grounds on which it was rendered. In the absence of any claim by the town that such coverage would not be adequate to cover all its losses, we need not consider whether, as the court held, the town is precluded from recovery under other insurance policies within the Multiflex Policy.

In summary, in view of the endorsement modifying the coverage afforded to the town by the Multiflex Policy, including the School District Policy, the defendants’ motion for summary judgment should not have been granted. The judgment of the court in that respect must be reversed.

TOWN’S MOTION FOR SUMMARY JUDGMENT

Without separate discussion of the merits, the court also denied the town’s motion for summary judgment. In its motion, the town had alleged that the insurance provisions at issue, including those in the School District Policy and the relevant endorsement, required the defendants to have provided a defense against the Pozzi claims. On appeal, the town reiterates this claim.

The difficulty with the town’s appellate analysis is that it assumes that the denial of a motion for summary judgment is a final judgment that may be appealed immediately. See General Statutes § 51-197a; Practice Book § 61-1. As a general rule, a judgment is not final unless it “so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The denial of a motion for summary judgment is not a final judgment and therefore is not ordinarily appealable. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991). The town has presented no argument that any special statute or rule provides an exception that permits it to appeal the denial at this juncture, when there are unresolved coverage issues that arguably were not addressed in the motions for summary judgment. We have no jurisdiction to grant the town’s request for a summary judgment on its behalf.

The judgment granting the defendants’ motion for summary judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In Pozzi’s demand for arbitration, “Town of Westbrook” is identified as “the party upon whom demand is made.” It is similarly so designated in Pozzi’s prehearing memorandum in the arbitration proceedings. In the action brought in federal court, “Town of Westbrook” is the first named defendant.

       The defendants that are involved in this appeal are ITT Hartford Group, Inc., Hartford Casualty Insurance Company and Twin City Fire Insurance Company.

       The second count of the complaint sought recovery from General Star Indemnity Company. That count is not presently before us.

       In so doing, each party agreed that the claims at issue do not involve any dispute about material issues of fact.

       This coverage was contained within a policy issued by Twin City Fire Insurance Company.

       In the special defenses filed by the defendants, they also raised other reasons why the town could not prevail. For example, they claimed that the plaintiffs losses did not fall within the “loss” coverage defined in the School District Policy. In their motion for summary judgment, however, their claim was limited to issues relating to the definition of an insured.

       The relevant provision in the School District Policy states: “Each of the following is an insured under this coverage part: 1. The ‘School District’ named in the Declarations and, while acting within the scope of their duties as such, its: a. School Board or School Committee; b. Employees; c. Student Teachers; d. School Volunteers; e. Elected or appointed members of the Board of Education, Trustees or School Directors of the ‘School District.’ ” The town has not argued that the court should read this provision to provide coverage for the town or Godiksen with respect to Godiksen’s alleged misconduct.

       The endorsement, denominated “HI12001185T”, after first noting that it “also applies to the Commercial Auto Coverage Part,” defines the named insured “Town of Westbrook” as: “Westbrook public schools; Westbrook volunteer fire department; Westbrook police department (including all elected and appointed officials, members of boards, committees, commissions and agencies, all employees, agents, volunteers and other such representatives while acting within the scope of their duties its such).”

       The defendants have not argued that, even if the endorsement applies, the town is not an insured for the purposes of this litigation.

       The defendants correctly observe that the court’s opinion did not spell out in detail why, in its view, the endorsement was inapplicable. Although it would have been better practice for the town to have filed a motion for articulation; see Practice Book § 66-5; it called the matter to the court’s attention in its motion for reargument, which the court denied.

       The defendants also rely on judicial admissions arising out of the town’s response to the defendants’ request for admissions. The record discloses that the town admitted, inter alia, that Pozzi’s claims in arbitration and in the federal court did not name the “School District” as a defendant.
      A party’s response to a request for admission is binding as a judicial admission unless the judicial authority permits withdrawal or amendment thereof. See Practice Book §§ 13-22, 13-23 and 13-24; see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 2.3.3, p. 22. This court has held that judicial admissions are not automatically conclusive. See, e.g., Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 127, 739 A.2d 280 (1999).
      In its memorandum of decision, the court did not allude to the admissions that the defendants claim to be conclusive. We have no way of knowing whether the court exercised its discretion to permit their withdrawal or found them irrelevant to the issues before it. We therefore lack an adequate record for addressing this argument.

       The record does not reveal, and the parties have not explained, what relevance the Commercial Auto Policy had to the Multiilex Policy that the town purchased.

       In support of its right to appeal before the trial has commenced, the town cites Miles v. Foley, 54 Conn. App. 645, 647, 736 A.2d 180 (1999), aff'd, 253 Conn. 381, 752 A.2d 503 (2000), and Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575, 589, 636 A.2d 1383 (1994). These precedents are, however, distinguishable, because neither allowed an immediate appeal in the face of unresolved substantive issues that were not addressed, on their merits, in the trial court’s decision denying summary judgment. If all pretrial denials of summary judgment, were appealable, appealability would become the general rule and not the exception. That is not our law. See C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.9 (c), p. 94.


text:
    AMR A. WASFI v. DEPARTMENT OF PUBLIC HEALTH ET AL.
    (AC 19418)
    Foti, Schaller and Dupont, Js.

      Argued September 15
    officially released November 21, 2000

      William F. Gallagher, with whom, on the brief, were Joseph F. Rigoglioso and Barbara L. Cox, for the appellant (plaintiff).

      Richard J. Lynch, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Heather Wilson, assistant attorney general, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Amr A. Wasfi, a veterinarian, appeals from the trial court’s judgment dismissing his administrative appeal. The defendants are the depart-merit of public health (department), which brought charges against the plaintiff, and the Connecticut board of veterinary medicine (board), which revoked the plaintiffs veterinary license. The plaintiff claims that the court improperly concluded that the board did not violate (1) General Statutes § 4-178 (7) and principles of due process by applying its specialized knowledge to the facts of this case and (2) either its statutory authority or the plaintiffs due process rights by revoking the plaintiffs license following one incident of misconduct by the plaintiff. We disagree with these claims and affirm the judgment of the trial court.

The following facts, found by the board, and procedural history are necessary to our resolution of this appeal. Prior to and during the incident giving rise to this litigation, the plaintiff held a Connecticut veterinary license. On November 28, 1992, a car struck Allison O’Connell’s dog. O’Connell subsequently took the dog to the plaintiffs veterinary hospital for emergency treatment. After the plaintiff diagnosed and treated the dog’s injuries, he informed O’Connell, and his treatment notes indicate, that he diagnosed a fracture to the dog’s radius and that part of the proximal surface of her olecranon bone was missing. The plaintiff also told O’Connell that he repaired the tendons in the dog’s leg with surgical steel wire. The plaintiff testified, and his treatment notes indicate, that he used number one and number two gauge nylon to repair lacerated tendons in the dog’s leg. On the basis of its own expertise, the board found that number one or number two gauge nylon is inappropriate for the treatment of injured tendons in a dog’s leg.

On December 7, 1992, O’Connell took the dog to Jeffrey LaCroix, a veterinarian, for further treatment. LaCroix removed the splint and sutures that the plaintiff had applied to the dog’s leg. LaCroix palpated and took X rays of the dog’s leg, as well as examined X rays that the plaintiff had taken of the dog’s leg. LaCroix concluded, and the board agreed, that the X rays revealed no fractures. His palpation of the dog’s leg revealed that no repair had been performed to any tendons because he found a fully mobile leg joint with no evidence of scar tissue on the leg. The board also found, on the basis of its expertise, that if the plaintiff had repaired the tendons with nylon, LaCroix should easily have been able to detect the nylon when he examined the dog. LaCroix also found that the dog was weight-bearing when he examined her on December 7, 1992. He testified, and the board found, that the dog would not be weight-bearing if she had sustained a tendon repair two weeks earlier. According to LaCroix’s testimony, the dog would not have been weight-bearing for at least four weeks had she sustained a lacerated tendon in her leg.

After her visit to LaCroix’s office with the dog, O’Con-nell contacted the department. The department held a compliance conference on August 10, 1993, and, on November 19, 1993, the department submitted charges against the plaintiff to the board. The statement of charges alleged that the plaintiff did not conform to the acceptable standard of care for veterinarians because the plaintiff (1) misdiagnosed the dog’s condition, (2) misrepresented the dog’s condition to her owners and (3) misrepresented to the owners the treatment that he provided to the dog.

On December 8, 1993, the department sent a notice of hearing to the plaintiff. The board held hearings on April 6 and 27, 1994. Counsel represented the plaintiff at the administrative hearings. In addition to hearing the testimony of the plaintiff, O’Connell and LaCroix, the board heard testimony from Edward A. Williams, a veterinarian with considerable experience treating dogs. Williams reviewed the plaintiffs treatment notes, X rays and the X rays taken by LaCroix. He testified, and the board found, that the dog did not sustain a fracture and that the plaintiff did not use surgical steel wire to treat the dog’s leg.

Williams also testified, and the board found, that the plaintiff violated the customary standard of care required of a licensed veterinarian when he informed O’Connell that the dog’s leg was fractured and that he had treated it with surgical steel wire. On the basis of the testimony of LaCroix and Williams, as well as its own expertise in reviewing the X rays and treatment notes from this case, the board found that the dog had sustained no bone fractures and that the plaintiff had misdiagnosed her injuries. On the basis of O’Connell’s testimony and LaCroix’ examination, the board also found that the plaintiff had misinformed O’Connell concerning the dog’s injuries and the treatment that he had provided.

The plaintiff defended his course of treatment and testified that he likely saved the dog’s life. He claimed that he did perform a tendon repair on the dog, using number one or number two gauge nylon. He denied using, or telling O’Connell that he used, surgical steel wire. He argued that the type of tendon repair he performed could not be seen on X ray examination and that O’Connell misunderstood his explanation of the treatment he had given the dog.

The board concluded that the plaintiffs conduct violated General Statutes § 20-202 (2). Acting pursuant to the authority granted the board by General Statutes §§ 19a-17 and 20-202, the board ordered that the plaintiffs license be revoked effective forty-five days following the issuance of its decision. The plaintiff, thereafter, appealed to the Superior Court pursuant to General Statutes § 4-183 (a). Among other claims, he alleged that the board violated his due process rights and that the record did not contain substantial evidence supporting the board’s conclusions. The court dismissed the appeal. The plaintiff thereafter filed a motion for reargument on the issue of whether the board’s sanction violated the plaintiffs due process rights. The court heard argument on the motion but denied the relief requested. This appeal followed. Additional facts will be set forth as they become relevant in the context of the plaintiffs claims.

General Statutes § 4-183 (j) governs appellate review of agency decisions. “[W]e note that our review of an administrative appeal is limited. Our Supreme Court has established a firm standard that is appropriately deferential to agency decision making, yet goes beyond a mere judicial rubber stamping of an agency’s decisions. . . . Courts will not substitute their judgment for that of the agency where substantial evidence exists on the record to support the agency’s decision, and where the record reflects that the agency followed appropriate procedures.” (Citations omitted; internal quotation marks omitted.) Menillo v. Commission on Human Rights & Opportunities, 47 Conn. App. 325, 331, 703 A.2d 1180 (1997).

“Judicial review of the conclusions of law reached administratively is also limited. . . . [ I]t is the well established practice ... to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 669, 757 A.2d 1 (2000). Our task is to review the court’s decision to determine whether it comports with the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and whether “the court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” (Internal quotation marks omitted.) Ferreira v. Zoning Board of Appeals, 48 Conn. App. 599, 605, 712 A.2d 423 (1998).

1

The board found, on the basis of its own expertise, that number one or number two gauge nylon is too thick to be used effectively in repairing tendons in a dog’s leg. The plaintiff first claims that the court improperly approved the board’s finding based on specialized technical knowledge without giving timely notice to the parties that it was doing so, in violation of General Statutes § 4-178 (7) and the plaintiffs due process rights. We disagree.

The procedural rules embodied in the UAPA, applicable to the present case, satisfy the procedural safeguards mandated by the due process clause. Pet v. Dept. of Health Services, 228 Conn. 651, 661, 638 A.2d 6 (1994). A party to an administrative hearing possesses the right to respond to evidence, cross-examine witnesses and present evidence relevant to the issues before the agency. General Statutes § 4-177c. “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” (Internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987).

A

The present dispute concerns the application of specific evidentiary rules in contested cases, namely, subsections (6), (7) and (8) of General Statutes § 4-178. General Statutes § 4-178 (6) provides that “notice may be taken of judicially cognizable facts and of generally recognized technical or scientific facts within the agency’s specialized knowledge . . . .” Section 4-178 (7) provides that “parties shall be notified in a timely manner of any material noticed, including any agency memoranda or data, and they shall be afforded an opportunity to contest the material so noticed . . . .” Agency members are prohibited from relying on nonre-cord material facts about a dispute before them, such as facts learned from first-hand investigation of case-specific details, without giving the parties before them the opportunity to rebut such evidence. See Palmisano v. Conservation Commission, 27 Conn. App. 543, 548, 608 A.2d 100 (1992). General Statutes § 4-178 (8), however, provides that “the agency’s experience, technical competence, and specialized knowledge may be used in the evaluation of the evidence.”

Administrative boards comprised of at least a majority of members expert in their field are presumed “competent to determine the issues upon the basis of their own knowledge and experience”; Jaffe v. State Dept. of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949); and are entitled to decide the issues before them without expert testimony. See id. Our Supreme Court has noted that as long as an administrative board consists of a “majority of experts in the field involved in the case, the board may rely on its own expertise in evaluating charges against persons licensed by the board and the requisite standard of care by which to judge such cases.” (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 111, 596 A.2d 374 (1991); see also Pet v. Dept. of Health Services, supra, 228 Conn. 666.

The legislature, therefore, distinguishes between an agency’s use of nonrecord facts as proof of the specific issues in a case and the agency’s use of its expertise and technical competence when evaluating evidence on issues properly before it. Our Supreme Court discussed this distinction and noted that “[t]he difference between an administrative tribunal’s use of non-record information included in its expert knowledge, as a substitute for evidence or notice, and its application of its background in evaluating and drawing conclusions from the evidence that is in the record, is primarily a difference of degree rather than of kind.” (Internal quotation marks omitted.) Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 532, 560 A.2d 403 (1989). Parties are entitled to notice of any nonrecord facts that will constitute proof in a case. In contrast, however, “the examiner’s use of his experience in evaluating proof that has been offered is not only unavoidable but, indeed, desirable.” (Internal quotation marks omitted.) Id., 532-33.

In Breiner v. State Dental Commission, 57 Conn. App. 700, 750 A.2d 1111 (2000), this court affirmed a trial court’s decision declining to apply the futility exception to the doctrine of exhaustion of administrative remedies. The plaintiff in Breiner, a dentist, was the subject of a disciplinary proceeding before the state dental commission. He claimed that he could not receive a fair hearing because board members had taken a position publicly on a policy issue related to the dispute. Relevant to our inquiry in the present case is our reasoning in Breiner that the position taken by the board members concerned the standards of practice rather than knowledge or a position taken on the adjudicative facts specific to that dispute. “Standards of practice comment on the appropriate conduct of an entire profession, not just a particular individual. Accordingly, standards of practice . . . need not be treated as factual information contained in the record of an administrative proceeding.” Id., 707. We analyze the issue before us mindful of these distinctions.

In the present case, the court found that the plaintiff’s claim that he lacked notice that the board would use its own expertise regarding the proper gauge and type of the suture material is without merit. The court noted that after the administrative hearings, the board sent notice to the parties that it was opening the record to admit into evidence a sample of suturing material called chromic gut, also known as catgut. After the plaintiff objected, the board permitted him to present argument on the issue. At the subsequent hearing, which dealt with the issue of the suture material, the plaintiff offered the board a sample of the type of number two nylon suture material he claimed he used in his treatment of the dog. The plaintiffs attorney explained, in detail, why the plaintiff used nylon and why it was a superior suture material for the type of procedure that the plaintiff allegedly performed. The board admitted into the record the number two gauge nylon that the plaintiff offered, and the plaintiff demonstrated for the board his technique in knotting the material. The court found that this hearing alone gave the plaintiff notice and an opportunity to address the board on this issue.

Our review of the record, as well, indicates that board members discussed with the plaintiff during the initial hearings the gauge of nylon appropriate to suture tendons in the dog’s leg. During the plaintiffs questioning, the plaintiff discussed and defended his position to use number one and number two gauge nylon. A veterinarian on the board shared his experience using number two nylon to repair tendons, noting that it could be considered “rope,” and stated that he used it while treating cattle.

Despite the plaintiffs arguments, the record supports the court’s reasoning that the plaintiff had notice that the board was considering the propriety of the plaintiffs alleged use of number one or number two gauge nylon. The department’s statement of charges put the plaintiff on notice that the board would investigate his deviation from the standard of care when he misdiagnosed and misrepresented the dog’s injuries and when he misrepresented the treatment of those injuries. A central issue in this dispute focused on whether the plaintiff misrepresented the treatment he performed; resolving this issue required the board to determine if the plaintiff sutured tendons in the dog’s leg. His testimony that he sutured tendons with number two nylon and that number two nylon was the proper material to use on the dog’s injuries on November 28,1992, and his demonstration before the board showing how he used the material were properly before the board.

The composition of the board, as well as § 4-178 (8), put the plaintiff on notice that the board would use its own expertise when determining whether the plaintiffs alleged acts conformed to the standard of care. The board is comprised, in part, of practitioners of veterinary medicine. This composition alone provides notice that board members will bring their specialized knowledge to bear on the issues and evidence properly before them. The board did not import nonrecord proof about this case into its deliberations. Rather, after hearing the plaintiffs testimony about the suturing that he allegedly performed, the board applied its practical experience regarding the appropriateness of the suturing material that the plaintiff claims to have used. After hearing the plaintiffs testimony that he used nylon to repair the tendons in the dog’s leg, the board, without needing expert testimony and on the basis of its own experience, was competent to determine whether the plaintiffs choice of suturing material complied with professional standards of care. See Pet v. Dept. of Health Services, supra, 228 Conn. 666; Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991).

The plaintiff cites Marshall v. DelPonte, 27 Conn. App. 346, 606 A.2d 716 (1992), for the proposition that the board was prohibited from relying on its own expertise without giving notice to the plaintiff that it would do so. In Marshall, a hearing officer improperly relied on his own expertise or judicial notice without giving notice to the parties, in violation of § 4-178 (7). Id., 352-53. That case is distinguishable from the present case because, unlike the facts here, the agency officer in that case reached his decision by relying only on proof of the specific blood alcohol content of the plaintiff in that dispute, which was clearly outside of his professional expertise and not part of the record. The plaintiffs reliance on Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), is also misplaced. The issue in that case was whether “commissioners who have not been shown to possess expertise in [the area of a complex pollution issue] may rely on their own knowledge, without more, in deciding to deny a license to conduct a regulated activity.” (Emphasis added.) Id., 427. The court in Feinson found that the record lacked sufficient reliable evidence to sustain the commission’s action. Id. In contrast, the experts on the board in this case had the authority to apply their professional experience to the facts and testimony before them.

B

Even if we were to conclude that the board violated § 4-178, we conclude that the board’s finding on this specific issue nonetheless constituted harmless error under the circumstances of this case. The board made numerous findings, apart from finding that the plaintiffs choice of number one or number two gauge nylon was, in its experience, inappropriate, to support the conclusion that the plaintiff misdiagnosed and misrepresented the dog’s injuries. The critical finding underlying the board’s decision occurred when the board believed LaCroix’s testimony that “no repair had been done” and that “a dog would not be weight-bearing on a limb that had a tendon repair two weeks earlier.”

The plaintiff contends that the board should have given him notice “that it would consider the appropriateness of the gauge of the suturing material used in the treatment of the dog.” The plaintiff argues that if he had been given such notice, he “could have presented expert evidence concerning the gauge of the material as well.” We are not persuaded that the additional testimony would have had any bearing on the board’s critical finding that the plaintiff did not perform any tendon repair.

II

The plaintiff next argues that the board’s revocation of his license to practice veterinary medicine based on “a single charge of unskillfulness” violates his rights to substantive due process. The plaintiff essentially argues that this penalty is disproportionate “in light of the nature of the claimed dereliction, the equivocal evidence in the record supporting the charges, the complete recovery of the dog and the hardship to [the plaintiff].” We disagree.

Under state law, a licensed veterinarian may not have his or her license revoked except for cause. The plaintiff, therefore, had a constitutionally protected property interest in keeping his license. See Hunt v. Prior, 236 Conn. 421, 437-38, 673 A.2d 514 (1996). “[A] licensed physician has a right and estate in his profession of which he cannot be deprived without due process of law. . . . Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right . . . .” (Internal quotation marks omitted.) Lewis v. Swan, 49 Conn. App. 669, 679, 716 A.2d 127 (1998).

A

To the extent that the plaintiff challenges the relevant statutes that govern the disciplinary action in this dispute, namely, §§ 20-202 and 19a-17, we evaluate the issue under a well established standard. “Constitutional attacks on the rationality of economic or social welfare legislation must rebut the presumption of constitutionality that attaches to such legislation. [T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” (Internal quotation marks omitted.) Connecticut Education Assn., Inc. v. Tirozzi, 210 Conn. 286, 299, 554 A.2d 1065 (1989).

Once the board finds any of the enumerated causes listed in § 20-202, it may take disciplinary action as set forth in § 19a-17, the section governing professions under the jurisdiction of the department of public health. General Statutes § 20-202 (2) permits the board to take action pursuant to § 19a-17 when there is “proof that the holder of [a veterinary] license . . . has become unfit or incompetent or has been guilty of cruelty, unskillfulness or negligence towards animals and birds . . . .” General Statutes § 19a-17 (1) allows for the revocation of a practitioner’s license or permit. After finding that the plaintiff violated § 20-202 (2), the board revoked his license.

We conclude that it is neither arbitrary nor irrational for the legislature to permit the board to take disciplinary action against practitioners whom it finds to have acted negligently or unskillfully. The legislature certainly may protect the public interest by ensuring that licensed veterinarians adhere to professional standards of care. It is rational to allow the board, comprised in part of professionals, to protect the quality of the profession and the care given to animals by adjudicating alleged instances of unskillfulness or misconduct by licensed practitioners. Likewise, permitting the board to assess the appropriate penalty does not violate substantive due process. The legislature could have reasoned that board members who are familiar with the standards of the profession and the unique facts of each case that come before them are in the best position to levy an appropriate penalty against fellow practitioners. Also, the fact that the legislature delegated the power to revoke a professional’s license following just one instance of misconduct is rationally related to the interests of punishing transgressors and preventing future harm to the animals under the care of such practitioners.

B

We next consider whether the board abused its discretion in its application of §§ 20-202 and 19a-17. As a preliminary matter, it is necessary to set forth our well established standard of review. “ ‘If the penalty meted out is within the limits prescribed by law, the matter lies within the exercise of the [agency’s] discretion and cannot be successfully challenged unless the discretion has been abused.’ Gibson v. Connecticut Medical Examining Board, 141 Conn. 218, 230, 104 A.2d 890 (1954). Sentencing is an inherently fact bound inquiry. In an administrative appeal, a reviewing ‘court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence.’ Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983).” Pet v. Dept. of Health Services, supra, 228 Conn. 677-78. In other words, “[o]ur ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

Section 19a-17 permits the board, after finding good cause, to take any of the available disciplinary actions, which vary in severity, enumerated in that section. The record contains substantial evidence supporting the department’s charges against the plaintiff that he violated § 20-202 (2). The issue is whether the board abused its discretion by revoking the plaintiff’s license under § 19a-17 (1) because of that incident. The plaintiff argues that his license was revoked for “a single instance of claimed unskillfulness.” Given the board’s findings that the plaintiff misrepresented that he repaired tendons in the dog’s leg, misrepresented that he used surgical steel wire in those repairs, misdiagnosed a fractured radius and misdiagnosed an injury to the olecranon, we cannot conclude that the plaintiff has been punished for a single act.

In any event, the statute does not state that the penalty of revocation applies only to individuals who commit multiple acts of misconduct. We are bound to read and interpret statutes as they are written. Mack v. Lavalley, 55 Conn. App. 150, 166, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). To read the statute as preventing the board from revoking a practitioner’s license following one serious incident of misconduct until other acts of misconduct occurred would be inconsistent with the policies the statute was designed to implement. See Doucette v. Pomes, 247 Conn. 442, 455, 724 A.2d 481 (1999). When the legislature has deemed it necessary to impose such limitations on agency decision making, it does so expressly. The agency is not bound to explain its decision to impose one penalty as opposed to the other available penalties set forth in § 19a-17.

In several instances, our Supreme Court has upheld the revocation of a professional license based on one instance of misconduct. In one case, the state board of nursing examiners revoked a registered nurse’s license after it found that she converted a drug to her own use. Leib v. Board of Examiners for Nursing, 177 Conn. 78, 81, 411 A.2d 42 (1979). In Gibson v. Connecticut Medical Examining Board, supra, 141 Conn. 220-21, a physician’s license was revoked because of several acts of misconduct during the course of treatment of one patient. Furthermore, the court in Jaffe v. State Dept. of Health, supra, 135 Conn. 355, held that the medical examining board’s choice of appropriate discipline was not an abuse of discretion, when the board revoked a physician’s license after it found that he had performed an operation in an unprofessional maimer.

The plaintiff argues that we should review the board’s action in accordance with the decision of the New York Court of Appeals in Pell v. Board of Education of Union Free School District No. 1, 313 N.E.2d 321, 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974). That decision, however, involved “only disciplinary sanctions imposed internally in various administrative agencies and . . . not . . . discipline imposed upon regulated persons or entities outside an administrative agency.” Id., 331. Our task is not to second-guess the agency’s choice of sanction. We look to whether evidence existed that gave the agency the discretion to impose the penalty of revocation. Our statutes dictate that matters under an agency’s discretionary review must not be “arbitrary or capricious or characterized by abuse of discretion . . . .” General Statutes § 4-183 (j) (6). While these terms are necessarily vague, they also represent the authority that our General Assembly has vested in administrative agencies. As we are prohibited from reading into statutes provisions that are not clearly stated; see Morales v. Pentec, Inc., 57 Conn. App. 419, 429, 749 A.2d 47 (2000); we will not restrict the deference we are statutorily bound to give administrative decisions in the absence of statutory authority.

Mindful of the board’s purpose of insuring “proper veterinary care and the protection of the public health, considering the convenience and welfare of the animals being treated”; General Statutes § 20-196 (a); we cannot conclude that the board exceeded its authority or abused its discretion in revoking the plaintiffs license. In the analogous context of reviewing a board of education’s exercise of discretion in terminating a teacher’s contract following one incident of misconduct, our Supreme Court affirmed the board’s decision, noting that “[wjhether termination is justifiable on the basis of a single incident is a qualitative not quantitative analysis; one serious incident can suffice.” Rogers v. Board of Education, 252 Conn. 753, 771, 749 A.2d 1173 (2000). In the present case, members of the board found that the plaintiff performed below the standard of care in his profession, misdiagnosed injuries and deliberately misrepresented to an owner the treatment that he provided to the owner’s animal. The board’s punishment does not appear to rest on any one particular finding, but on the cumulative effect of all of the findings.

The plaintiffs argument that his misconduct did not seriously injure the dog misses the point. The board was free to find, after having the benefit of questioning the plaintiff at length, that the plaintiffs failure properly to diagnose or to treat the dog’s injuries demonstrated a risk that he would perform below the standard of care in the future. The board may have reasoned, as well, that misrepresenting to the dog’s owner the services that he performed was not a simple oversight, but the type of conduct that could harm other pet owners in the future. On the evidence presented, the board could conclude that the plaintiffs conduct betrayed the trust that is reposed in him as a licensed veterinarian and compromised the integrity of his profession. The legislature vested in the board the power to evaluate the competency of veterinarians in this state and to adjudicate complaints and impose proper sanctions when warranted. The board found the plaintiffs conduct to deviate from the standard of care to such an extent that it warranted the revocation of his license. Under these circumstances, we cannot conclude as a matter of law that the board’s action was arbitrary and capricious or an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       On July 1, 1995, the department of public health and addiction services became known as the department of public health. Public Acts 1995, No. 95-257, §§ 12, 21, 58; see also Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 3 n.3, 698 A.2d 795 (1997).

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

       General Statutes § 4-183 Q) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal . . . .”

       General Statutes § 4-177c (a) provides: “In a contested case, each party and the agency conducting the proceeding shall be afforded the opportunity (1) to inspect and copy relevant and material records, papers and documents not in the possession of the party or such agency, except as otherwise provided by federal law or any other provision of the general statutes, and (2) at a hearing, to respond, to cross-examine other parties, intervenors, and witnesses, and to present evidence and argument on all issues involved.”

       General Statutes § 20-196 (a) governs the composition of the board. Section 20-196 (a) provides in relevant part: “The board shall consist of five members appointed by the Governor, subject to the provisions of section 4-9a, as follows: Three members of said board shall be practitioners of veterinary medicine residing in this state in good professional standing and two shall be public members. No member of said board shall be an elected or appointed officer of the Connecticut Veterinary Medical Association or have been such an officer during the year immediatelypreceding his appointment, or serve for more than two consecutive terms. The Commissioner of Public Health with the advice and assistance of said board may issue regulations to insure proper veterinary care and the protection of public health, considering the convenience and welfare of the animals being treated, methods recommended by the code of ethics of the national and state veterinary associations, proper registrations of veterinarians for prompt identification and accepted health and veterinary standards as promulgated by the Department of Public Health, Department of Agriculture health ordinances and state statutes and regulations.”

       General Statutes § 19a-17 (a) provides in relevant part: “Each board or commission established under chapters 369 to 376, inclusive, 378 to 381, inclusive, and 383 to 388, inclusive, and the Department of Public Health with respect to professions under its jurisdiction which have no board or commission may take any of the following actions, singly or in combination, based on conduct which occurred prior or subsequent to the issuance of a permit or a license upon finding the existence of good cause: (1) Revoke a practitioner’s license or permit.....”

       The plaintiff argued to the court that because § 20-202 (2) describes ‘'unsMilfulness or negligence towards animals and birds,” the legislature intended punishment to be appropriate only when “repeated instances of negligence or unskillfulness” occur. (Emphasis added.) We agree with the court’s rejection of this statutory construction. Such an interpretation could result in a case where a veterinarian could commit many acts of unskillfulness or cruelty during the treat ment of a single animal, yet face no penalty. Because we are bound to interpret, statutes “based upon the premise that the legislature intends to enact reasonable public policies”; (internal quotation marks omitted) Burke v. Fleet National Bank, 252 Conn. 1, 24, 742 A.2d 293 (1999); it follows that we must interpret § 20-202 to apply to situations involving a single incident of misconduct.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. VICTOR GARUTI
    (AC 20116)
    Schaller, Pellegrino and Daly, Js.

      Argued September 20
    officially released November 21, 2000

      Laila Mary Ghabrial, deputy assistant public defender, for the appellant (defendant).

      Jessica C. Torres-Daigle, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Victor Garuti, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction (commissioner) to serve the remaining two years and 215 days of his previously suspended sentence of incarceration. On appeal, the defendant claims that the court (1) improperly found that he had violated his probation and (2) violated his due process rights. We affirm the judgment of the trial court.

The following procedural history is relevant to this appeal. On December 8, 1997, the court sentenced the defendant to the custody of the commissioner for a term of three years, suspended after 150 days, and three years probation. The defendant’s probationary period began on May 6, 1998, at which time he provided a residential address to a probation officer. During a May 14, 1998 visit to the address, the probation officer was told that the defendant did not reside there. A warrant was issued for the defendant’s arrest on a charge of violation of probation. The warrant alleged that the defendant violated a condition of his probation by failing to keep his probation officer informed of his whereabouts. On July 12, 1999, the court held a two part probation revocation hearing.

At the conclusion of the hearing’s evidentiary phase, the court prefaced its findings by stating, “I’m reasonably satisfied that the terms of probation have been violated and the beneficial purposes of probation [are] no longer being served.” The court then found that the defendant had violated his probation because “the probation officers did not know of [the defendant’s] whereabouts, did not know how to get a hold of him, and that is the violation.” During the hearing’s dispositional phase, the defendant addressed the court and requested leniency. When the entire hearing concluded, the court revoked the defendant’s probation.

I

The defendant first claims that the court improperly found that he had violated the terms of his probation because there was insufficient evidence to support such a finding. The defendant argues that because the testimony of his witness refuted the testimony of the state’s witnesses, the latter were not credible. We disagree.

In a probation revocation proceeding, the state bears the burden of proving by a preponderance of the evidence that the defendant violated the terms of his probation. State v. Daniels, 248 Conn. 64, 74, 726 A.2d 520 (1999). We may reverse the court’s finding that a defendant violated the terms of his probation only if that finding is clearly erroneous. State v. Samuel, 57 Conn. App. 64, 68, 747 A.2d 21, cert. denied, 253 Conn. 909, 753 A.2d 942 (2000); State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). “A finding of fact is clearly erroneous when there is no evidence to support it . . . or . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 482, 723 A.2d 817 (1999). This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. See Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).

During the evidentiary phase of the defendant’s probation revocation hearing, the state entered four documents into evidence and presented four witnesses. One of the witnesses was the probation officer who conducted the May 14, 1998 visit to the address the defendant gave as his residence. The probation officer testified that he was unable to contact the defendant directly by telephone or in person. The probation officer also testified that when he went to the address that the defendant had given, a woman there told him that the defendant “had never stayed at that address and that she thought that he stayed from . . . girlfriend to girlfriend.” That woman was the defendant’s only witness. Both parties had the opportunity to cross-examine the witnesses.

At the close of the hearing’s evidentiary phase, the court stated, “I will not make a decision until I’ve looked this over.” The court then recessed. When the court reconvened, it found after “reviewfing] the evidence that we took here of the witnesses and the documents that I have had before me, considering the credibility .... The fact is that the probation officers did not know of [the defendant’s] whereabouts, did not know how to get a hold of him, and that is the violation.”

On the basis of our review of the briefs and the transcript, we conclude that there was sufficient evidence to support the court’s finding that the defendant violated the terms of his probation. The court’s decision was not clearly erroneous and it will not be disturbed.

II

Next, the defendant seeks review of his unpreserved due process claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[A] defendant can prevail on a claim of constitutional error not preserved at trial 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.” (Emphasis in original.) Id.

The defendant’s claim is that the court violated his due process rights because it failed to afford him a full revocation hearing. He bases this claim on the comment that the court made at the conclusion of the hearing’s evidentiary phase: “I’m reasonably satisfied that . . . the beneficial purposes of probation [are] no longer being served.” We have stated that “[i]n the absence of any one of [the four Golding requirements for review of an unpreserved constitutional claim] the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Atkins, 57 Conn. App. 248, 252, 748 A.2d 343, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000). We conclude that the defendant failed to establish a clear constitutional violation or that the court deprived him of a full and fair hearing. The defendant’s due process claim fails the third prong of Golding.

To satisfy due process, the defendant is entitled to a two part probation revocation hearing pursuant to General Statutes § 53a-32. “[A] probation revocation hearing has two distinct components. . . . The trial

court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation.” (Internal quotation marks omitted.) State v. Lockhart, 60 Conn. App. 119, 122, 758 A.2d 857 (2000). “If the trial court determines that the evidence has established a violation of a condition of probation [by a preponderance of the evidence], then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Internal quotation marks omitted.) Id., 122-23; General Statutes § 53a-32.

The defendant does not dispute the adequacy of the evidentiary phase of the two part revocation hearing. He also does not dispute that the court appropriately conducted the dispositional phase of the hearing. The defendant claims instead that the dispositional phase of the hearing was not meaningful because the court already had decided to revoke his probation at the conclusion of the evidentiary phase. The defendant bases this claim on a single statement at the end of the hearing’s evidentiary phase when the court stated that “the beneficial purposes of probation [are] no longer being served.”

The record does not support the defendant’s claim. It is clear that the court conducted a full and fair two part probation revocation hearing. It first determined that the defendant had violated his probation and then determined that revocation was appropriate because the beneficial purposes of probation no longer were being served. During the evidentiary phase of the revocation hearing, the state presented four witnesses and the defendant presented one witness. Both parties had an opportunity to cross-examine the witnesses. Then, both parties addressed the court. At the conclusion of the evidentiary phase, the court explained that “the primary purpose of the probation revocation proceeding is to determine whether the defendant is complying with the terms of probation.” The court then analyzed the credibility of the witnesses and weighed the evidence presented during the hearing’s evidentiary phase. Despite the court’s comment that “the beneficial purposes of probation [are] no longer being served,” the court’s findings relate only to its determination that the defendant violated the terms of his probation. There is no indication that the court determined at the conclusion of the evidentiary portion of the hearing that the defendant’s probation would be revoked.

Moreover, at the conclusion of the hearing’s disposi-tional phase, the court discussed at length how it came to the conclusion that probation was no longer serving a beneficial purpose for the defendant: “It means little for a court to go through the motions of sentencing someone with probation if the probation is meaningless to the individual. . . . [T]his court ... is going to place a meaning with probation and if you live up to that, that’s fine .... [I]f you’re not, then perhaps we have to find that it was a mistake.”

On the basis of our review of the transcript and the briefs, we conclude that the court conducted a probation revocation hearing that complied with the requirements of due process. The defendant was afforded a full two part probation revocation hearing prior to having his probation revoked.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found that as far as the probation officers were concerned, the defendant was not living at the address he gave them, had not made a change of address with the probation officers and that the probation officers were unable to visit the defendant at his residence.

       “[ A] probation revocation hearing does not require all of the procedural components associated with an adversarial criminal proceeding.” State v. Smith, 207 Conn. 152, 176-77, 540 A.2d 679 (1988). “[T]he purpose of a probation revocation hearing is to determine whether there are findings upon which a violation of a condition can rest and, if there are, whether, in the discretion of the court, those findings warrant a continuation, modification or revocation of the conditional liberty of a defendant. . . . [TJhose charged with a violation of probation . . . have only a conditional right to liberty.” State v. Baxter, 19 Conn. App. 304, 313, 563 A.2d 721 (1989).

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation ... the court . . . may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... [T]he court shall cause the defendant to be brought before it. . . for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of . . . probation or conditional discharge, shall be advised by the court that he has the right to . . . counsel and . . . shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may ... (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, 1 he court shall require the defendant to serve the sentence imposed or impose any lesser sentence. ... No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       An attorney represented the defendant during both phases of the revocation hearing. In the dispositional phase, both the attorney and the defendant addressed the court.