author: WEST, J.

text:
    STATE OF CONNECTICUT v. RICHARD F. BOTHWELL
    (AC 21920)
    Bishop, West and Stoughton, Js.

      Argued March 31
    officially released July 15, 2003

      Russell S. Palmer, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, Colleen Zingaro, deputy assistant state’s attorney, and Prolog K. Das, former special deputy assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Richard F. Bothwell, appeals from the judgment of conviction, rendered following a jury trial, of operation of a motor vehicle while under the influence of liquor or drugs or while having an elevated blood alcohol content in violation of General Statutes (Rev. to 1999) § 14-227a, as amended by Public Acts 1999, No. 99-218, and Public Acts 1999, No. 99-255. He also appeals from the judgment, rendered following a trial to the court, convicting him of being a third time offender under § 14-227a (g). The defendant claims that (1) the state engaged in prosecutorial misconduct as a result of several comments made during the trial, (2) the court improperly admitted into evidence certain documents that were not properly authenticated and (3) the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt under the second part of the information.

The following facts are relevant to our resolution of the defendant’s appeal. At approximately 10:30 p.m. on December 3, 1999, off-duty police Lieutenant William Ferri was traveling north on Route 106 on his way to work when he encountered a traffic jam. After being delayed in traffic for approximately five minutes, Ferri decided to investigate the situation to determine the cause of the traffic delay. Ferri subsequently discovered that a stalled tractor-trailer was blocking the entire southbound lane and a portion of the northbound lane. A brown pickup truck, driven by the defendant, also was blocking the southbound lane. Ferri approached the pickup truck and yelled to the defendant to move his vehicle. The defendant did not respond. When Fern was within three feet of the defendant, he again told the defendant to move the vehicle. The defendant mumbled something that Fern could not understand. Ferri observed that the defendant’s eyes were bloodshot and that there was a strong odor of alcohol emanating from the vehicle.

At that point, Ferri ordered the defendant to stop the vehicle, which was moving slightly, and to exit from the vehicle. The defendant’s truck rolled another fifteen feet before coming to an abrupt halt. The defendant then got out of the vehicle, and Fern noticed that he was unsteady on his feet, his speech was slurred and he smelled strongly of alcohol. Ferri told the defendant to wait where he was, and Ferri then returned to his vehicle to retrieve his police equipment belt. As Ferri returned to his vehicle, the defendant walked away from the scene, up a driveway and disappeared into a wooded area. As he left the scene, the defendant ignored multiple orders from Ferri to stop.

After several on-duty police officers arrived at the scene, Ferri left to report for the beginning of his shift. One of the remaining officers, Lieutenant Steven Wood, noticed that one of the vehicles leaving the scene was traveling south on Old Stamford Road. He heard what sounded like a shout come from that direction and observed a figure climbing into the passenger side of the vehicle. The officer realized that the person entering the vehicle might be the suspect and pursued the vehicle. Wood caught up with the vehicle and stopped it. The officer observed that the passenger matched the suspect’s description and called police headquarters for Fern’s assistance with the identification. Ferri arrived at the scene and positively identified the passenger as the suspect who had fled from the scene. The defendant was then taken to police headquarters, arrested and charged.

At the station house, the defendant was subjected to four field sobriety tests: The horizontal gaze nystagmus test; the walk and turn test; the one-leg stand test; and the alphabet test. On the basis of the defendant’s performanee on those tests, the administering officer concluded that the defendant was intoxicated and that his blood alcohol content was greater than 0.10. The defendant refused to submit to a Breathalyzer test. Additional facts will be set forth as necessary.

I

We first address the defendant’s claim that certain of the prosecutor’s comments during the trial were improper and amounted to prosecutorial misconduct. Specifically, the defendant claims that the prosecutor introduced improper and extraneous commentary during an objection to a certain line of questioning posed by defense counsel during cross-examination, that the prosecutor improperly commented on the defendant’s fifth amendment right not to testify, and that the prosecutor explicitly appealed to the jurors’ emotions, biases and prejudices during closing argument by suggesting that the defendant could have killed someone while driving under the influence of an intoxicating substance.

The standard of review for a claim of prosecutorial misconduct is well settled. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

“Prosecutorial misconduct may occur in the course of cross-examination of witnesses and during closing argument. ... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors. . . . Those factors include (1) the extent to which the misconduct was invited by defense conduct or ar gument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Stevenson, 70 Conn. App. 29, 33-34, 797 A.2d 1, cert. granted on other grounds, 261 Conn. 918, 806 A.2d 1057 (2002).

“We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted. . . .

“A statement within closing argument is blatantly egregious as to implicate the fundamental fairness of the trial itself where in light of all of the facts and circumstances ... no curative instruction could reasonably be expected to remove [its] prejudicial impact. ... In reviewing a claim of prosecutorial misconduct during closing argument, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Citation omitted; internal quotation marks omitted.) State v. Gentile, 75 Conn. App. 839, 852-53, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).

A

The defendant first complains that the prosecutor prefaced one of his objections at trial with an improper comment directed at defense counsel. The alleged improper comment followed a line of cross-examination of a police officer about the officer’s description of the defendant’s eyes as bloodshot on the night of the arrest. Defense counsel requested permission from the court to have the police officer view the defendant’s eyes in the courtroom. The prosecutor objected to that request, stating: “[The defendant], with regard to coming to court prior to this, whether he drank today, whether or not he got sand in his eyes, whether his eyes look bloodshot or not to this officer is irrelevant to the issue that this officer is testifying to. I don’t know what kind of show [defense counsel] is trying to put on, but I don’t think it’s relevant and I don’t think it’s appropriate.” The court sustained the objection.

Following that objection, defense counsel inquired of the witness whether the defendant looked the same as he did when he was in custody following his arrest. The prosecutor again objected to that line of questioning, stating: “Your Honor, I would renew my objection. If counsel would like to put his client on the [witness] stand, and we can question him about whether he has been drinking today. When was the last time he drank? And several other factors with regard to his physical state.”

With respect to the prosecutor’s comments, we conclude that they did not so infect the trial with prejudice as to deprive the defendant of his right to a fair trial. The prosecutor’s comments were no more than legitimate argument in support of his objection. It is true that a party objecting to a question at trial should state only the legal basis for such objection and that argument in support of the objection should be reserved until requested by the court. See Practice Book § 5-5. We cannot say, however, that the prosecutor’s premature offer of support for his objection prejudiced the defendant.

Contrary to the defendant’s assertion, the likely import of the prosecutor’s comments was not to suggest that the defendant was so habitual a drunkard that he was intoxicated even as he sat in court during his trial. Rather, the essence of the comments was that the condition or appearance of the defendant’s eyes during trial was irrelevant to the appearance of the defendant’s eyes when he was arrested.

Moreover, the comments, although made while the jury was in the courtroom, were directed to the court, not to the jury. “While this fact alone would not excuse an egregious violation of the rule, it is properly taken into consideration as part of the context in which it is made. An indirect comment in argument to the court on a point of law is less serious than a comment in jmy summation that asks the jury to infer that the defendant’s silence is evidence of guilt. ” State v. Cobb, 27 Conn. App. 601, 607, 605 A.2d 1385 (1992).

We also reject the defendant’s contention that the prosecutor’s comments implicated the exercise of the defendant’s fifth amendment right not to testify. “The ultimate test is whether the language used by the prosecutor was clearly of such character that, in the context in which it was used, the jury would naturally and necessarily interpret it to be a comment on the failure of the defendant to testify.” Id., 609. In the present case, the prosecutor’s objection was prompted by defense counsel’s attempt to impeach the testimony of the witness on the basis of a comparison of the defendant’s physical condition on the night of his arrest with his condition during trial. In objecting to that line of questioning, the prosecutor merely pointed out that such a comparison was irrelevant to the issue of the defendant’s condition at the time of his arrest. Accordingly, we conclude that the prosecutor’s comments were not improper.

B

Turning to the prosecutor’s comment during closing argument, we conclude that such comment also was not improper. We recognize that “[w]hen presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. . . . Nevertheless, [i]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered .... Ultimately, therefore, the proper scope of closing argument lies within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Gentile, supra, 75 Conn. App. 852.

In the present case, the sole alleged improper comment made by the prosecutor during closing argument was the statement: “The danger of a drunk driver is that he is going to continue down the road and kill somebody.” Following that comment, the defense requested a mistrial, which was denied. At the conclusion of oral argument, the court did, however, give the jury a curative instruction.

We agree with the state that the prosecutor’s comment was not an improper appeal to the emotions and prejudices of the jury, but was offered to support the reason that Feni did not pursue the defendant into the wooded area after he fled the scene. Moreover, the dangers of drunken driving are within the scope of the common sense and knowledge of the jury. It is well established that arguments that appeal to the common knowledge and experience of the jurors are permissible during closing arguments. See State v. Rolli, 53 Conn. App. 269, 281, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999).

After careful review of the whole record, we find no substantial prejudice resulting from the comments of which the defendant complains.

II

We next address the defendant’s claim that the court improperly admitted into evidence certain documents that were not properly authenticated. Specifically, the defendant claims that the court improperly allowed into evidence documents purporting to be certified copies of final judgments when the individuals certifying the documents testified that they did not compare the facsimile copies of the documents with the original final judgments and could not testify that the copies accurately reproduced the original final judgments. We disagree.

The following facts are relevant to our disposition of the defendant’s claim. In part B of the information, the state charged that the defendant had been convicted of violating § 14-227a on two prior occasions. Specifically, the state charged that the defendant had been convicted in Norwalk on December 23, 1992 (1992 Norwalk conviction), and that he had been convicted in Stamford on January 9, 1997 (1997 Stamford conviction). During trial, the state offered into evidence documents purporting to be certified copies of the judgment files of the defendant’s two previous convictions.

The state introduced a facsimile copy of the judgment file of the defendant’s 1992 Norwalk conviction through the clerk of the Norwalk court. The witness testified that once a case is disposed of, the information is entered into the computer at the clerk’s office and the paper record of the judgment file is then sent to the records center for filing. The witness further testified that his role in compiling the record is to ensure that the proper information regarding the defendant’s convictions is entered into the computer.

The file in issue was a facsimile copy sent from the Superior Court records center in Enfield to the Norwalk clerk’s office. The clerk testified that on receiving the facsimile transmission, he compared the information in that facsimile to the information contained in the computer records. He further testified that following the disposition of a case, the information concerning the disposition is fed into the computer, and then placed into a special envelope and sent to the records center with the dispositions for that particular date. The information can then be retrieved by the docket number or the date of disposition.

Similarly, a facsimile copy of the judgment file of the defendant’s 1997 Stamford conviction was entered into evidence through the deputy clerk of the Stamford judicial district. That witness testified that the maintenance of records at the Stamford courthouse followed essentially the same procedure as that described in the previous testimony regarding the Norwalk records.

The situation presented by the facts of the present case is similar to that in Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 384, 739 A.2d 311, cert. denied, 251 Conn. 928, 742 A.2d 362 (1999). Carabetta involved the introduction into evidence of printouts of certain computer screens of data. The defendants claimed that the introduction of the paper printouts was improper because the witness testifying as to their authenticity did not testify that the hard copy was identical to what was on the computer screen at the time that the copy was made. We rejected that argument, stating that the transcript contained substantial evidence of the reliability of the computer hardware and software systems, and that “[t]o accept the defendants’ invitation would place an impossible burden on the proponent of the use of the business records rule as to records generated by computer.” Id., 397.

That same logic applies to the present case. The state of current technology is such that certain records may be quickly and easily copied without the fear of mistaken transcription or scrivener’s errors that might accompany the hand copying of such records. The witnesses testified that they compared the information contained in the facsimile copies with the information stored on the computer for each of the dispositions. The witnesses testified that the information matched. Our rules of evidence should not be construed in such a manner so as to vitiate the advantages that technology offers.

There was sufficient testimony as to the reliability of the facsimile copies of the judicial records to warrant their admission. As the court properly noted, the defendant’s concern related to the weight of the evidence rather than to its admissibility. We conclude that the facsimile copies were sufficiently authenticated by the clerks of the respective courts to be admitted pursuant to the public records exception to the hearsay rule.

Ill

The defendant also claims that the evidence presented at trial was insufficient to find that in 1992 and 1997 he had been found guilty of having violated § 14-227a. We disagree.

The defendant presents three arguments in support of his claim. With respect to the 1997 Stamford conviction, the defendant argues that the state failed to prove beyond a reasonable doubt that he was convicted of violating § 14-227a on January 9, 1997, as charged in the information. The defendant takes exception to an apparent discrepancy between the date of the conviction as charged in the information and the date of the conviction as it appears in the court record. The defendant’s argument rests on the fact that the court record introduced as proof of that conviction indicates that he was convicted not on January 9,1997, but on December 17, 1996.

“Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” (Internal quotation marks omitted.) State v. Reed, 55 Conn. App. 170, 175, 740 A.2d 383, cert. denied, 251 Conn. 921, 742 A.2d 361 (1999). The record of the defendant’s Stamford conviction indicates that although he was convicted on December 17,1996, the court suspended the execution of the sentence until January 9,1997, the date contained in the state’s information. The exhibit clearly indicates that January 9, 1997, was the disposition date of the case. The clerk of the court testified that such records are filed under the case docket number and disposition date. Therefore, the date in part B of the information put the defendant on notice of the charge at issue. Accordingly, the defendant’s challenge with respect to the sufficiency of the evidence to support the charge that he had been convicted in 1997 must fail.

The defendant also challenges the sufficiency of the evidence to support the charge that he had been convicted in 1992. With respect to that conviction, the defendant takes exception to the discrepancy between the prior offense as charged in the state’s information and the offense as recorded in the Norwalk court record. Specifically, he argues that the record introduced into evidence indicates that he was convicted of violating General Statutes § 14-227 rather than § 14-227a.

We agree with the state that the reference in the court records to the defendant’s conviction of having violated § 14-227, rather than § 14-227a, is nothing more than a scrivener’s error. That conclusion is amply supported by the circumstances surrounding that charge. Section 14-227, the statutory predecessor of § 14-227a, was repealed by the legislature in 1963. See General Statutes §§ 14-227 and 14-227a. Logically, the defendant could not have been convicted of violating § 14-227 in 1992. The prevailing rule is that “scrivener’s errors should generally be overlooked on review.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003).

The defendant attempts to support his claim by arguing that the clerk authenticating the document testified that an individual convicted of having violated § 14-227a could not receive the sentence imposed, a $500 fine, a six month sentence of incarceration, execution suspended, and eighteen months probation. The transcript clearly shows, however, that the clerk was testifying that a defendant could not receive that sentence for the lesser offense of driving while impaired in violation of subsection (b) of § 14-227a, thereby rebutting the implication raised by defense counsel during cross-examination. The record establishes that the summons issued in connection with the 1992 Norwalk conviction charged the defendant with violating § 14-227a. The sentence imposed was within the permissible range for violations of subsection (a) of § 14-227a, driving while under the influence of liquor or drug. Accordingly, we find no error.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 36-14, the defendant was charged in a two part information. Part A of the information charged the defendant with the substantive offense while part B charged the defendant with being a repeat offender for the purpose of sentencing. See State v. Fitzgerald, 54 Conn. App. 258, 262, 737 A.2d 922 (1999), rev’d on other grounds, 257 Conn. 106, 777 A.2d 580 (2001).
      Practice Book § 36-14 provides in relevant part: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. ...”

       Practice Book § 5-5 provides: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he or she desires it to go upon the record, before any discussion or argument is had. Argument upon such objection or upon any interlocutory question arising during the trial of a case shall not be made by either party unless the judicial authority requests it and, if made, must be brief and to the point.”

       The court instructed the jury as follows: “You should keep in mind that arguments and statements by the attorneys in final argument, or during the course of this case, are not evidence. Specifically, I’m going to mention that during the state’s attorney’s initial argument, there was a comment about the danger imposed by drunk driving. Whether drunk driving is dangerous or not is not an issue in this case and is not to be considered by you in determining guilt or innocence of the defendant. Please remember the context that that remark was made in. In any case, you are only to consider the evidence of [the] case. And once again, arguments of counsel are not evidence.”

       The defendant also claims that the evidence was insufficient to find that he was the person named in the record of the 1992 conviction. The defendant bases his argument on the fact that the summons related to the 1992 N or walk conviction showed the operator’s date of birth as March 22,1992, while the defendant’s actual date of birth is March 22,1962. Because the 1992 conviction occurred on December 23, 1992, the recorded birth date is obviously a scrivener’s error that the court may disregard on review. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). Notwithstanding the discrepancy regarding the birth dates, the clerk of the court testified that the name, address, license number and race identification in the records of the prior conviction were identical to that of the defendant. We conclude, therefore, that the evidence was sufficient to support the conclusion that the defendant was the person named in the 1992 record of conviction.

       General Statutes (Rev. to 1999) § 14-227a (i), as amended by Public Acts 1999, No. 99-218, and Public Acts 1999, No. 99-255, provides: “Any person who violates subsection (b) of this section shall be fined not more than two hundred dollars.”

       The following colloquy took place:
      “[Defense Counsel]: And going to the next line, we have the same charge on this, which appears on the document; is that correct?
      “[The Witness]: That’s correct.
      “[Defense Counsel]: Which is § 14-227?
      “[The Witness]: Yes.
      “[Defense Counsel]: It doesn’t say which subdivision, does it?
      “[The Witness]: No.
      “[Defense Counsel]: So, it could be driving while impaired, couldn’t it?
      “[The Witness]: It could be.
      “[Defense Counsel]: All right. Which is not a crime is it? That’s an infraction, right?
      “[The Witness]: That’s correct.
      * * *
      “[Prosecutor]: . . . [I]f you know, under § 14-227a—
      “(Interruption by defense counsel requesting his copy of the exhibit back.)
      “[Prosecutor] — can you get a $500 fine, six months [incarceration] execution suspended, eighteen months probation?
      “[The Witness]: No.
      “[Prosecutor] So, under an impaired, that is what type of—
      “[The Witness]: It should be a lesser amount, being a lesser conviction.” (Emphasis added.)

       General Statutes (Rev. to 1999) § 14-227a (h), as amended by Public Acts 1999, No. 99-255, § 1, now (g), provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall . . . (A) be fined not less than five hundred dollars nor more than one thousand dollars and (B) be . . . (ii) imprisoned not more than six months, with the execution of such sentence of imprisonment suspended entirely and a period of probation imposed


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN M. WOLOD ET AL. v. RAYMOND P. BOLASH ET AL.
    (AC 22725)
    Lavery, C. J., and Schaller and West, Js.
    Argued February 13
    officially released July 15, 2003

      James C. Whitney, for the appellants (defendants).

      JohnM. Wolod, pro se, the appellee (named plaintiff).
   Opinion

PER CURIAM.

The defendants, Raymond P. Bolash, Margaret Bolash and Robert Bolash, appeal from the judgment of the trial court denying them any award of damages for the physical damage and emotional distress they asserted were inflicted on them by the plaintiffs, John M. Wolod and Michael J. Wolod, pursuant to counts four and five of the defendants’ counterclaim. They claim that the court improperly determined that (1) proof of specific financial expense is an element of a cause of action for intentional infliction of emotional distress and (2) proof of specific economic loss is a necessary element of a claim of trespass. We are not persuaded.

The defendants’ arguments are premised on their assertion that the court found that they had proven the elements of the causes of action brought against the plaintiffs and, therefore, that they were entitled to damages. Contrary to that assertion, a review of the record, including the court’s memorandum of decision, reveals that the court merely found that “the plaintiff John Wolod may have committed acts of vandalism” and that the defendant Robert Bolash “may have been harassed by the [plaintiff] John Wolod.” The court did not find that the defendants had proven the elements of their causes of action by the appropriate standard of proof. The court then indicated, essentially, that in any event, no proof of damages had been established with respect to either legal claim and no damages would be awarded. Because neither cause of action was proven by the defendants, the court properly denied recovery.

The judgment is affirmed.


author: PETERS, J.

text:
    RUDY’S LIMOUSINE SERVICE, INC. v. DEPARTMENT OF TRANSPORTATION ET AL.
    (AC 23013)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued March 18
    officially released July 15, 2003

      John J. Morgan, with whom, on the brief, were Albert J. Barr and Douglas R. Penn, for the appellant (plaintiff).

      Charles A. Walsh, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and for the appellees (defendants).
   Opinion

PETERS, J.

Anyone who wants to operate a vehicle in livery service in Connecticut must first obtain a permit from the department of transportation. In deciding whether to grant an application for such a permit, the Connecticut department of transportation (department) must decide whether the proposed service will improve “public convenience and necessity.” General Statutes § 13b-103 (b). The principal issue in this appeal is whether this standard provides the department with sufficient guidance to satisfy the principle of separation of powers mandated by the Connecticut constitution. A secondary issue is whether the department properly applied this standard under the circumstances of this case. Without addressing the constitutional issue, the trial court concluded that the department had applied the standard properly. Accordingly, the court dismissed the applicant’s appeal. Although we find it prudent to resolve the constitutional issue, we affirm the judgment of the trial court.

On July 26, 2000, the plaintiff, Rudy’s Limousine Service, Inc., filed an application with the defendant department for authorization to operate sixty-one additional livery vehicles intrastate. On May 18, 2001, after public hearings, the department granted the plaintiffs application in part, permitting the operation of five additional vehicles intrastate, rather than the requested sixty-one. The department concluded that the “maximum amount of vehicles that would improve the public’s convenience and necessity . . . would be five.”

In the plaintiffs appeal to the trial court, it claimed that (1) § 13b-103 (b) lacks the constitutionally required standards to guide the department in making determinations about permits to operate livery vehicles, and (2) the department improperly applied the “public convenience and necessity” standard to the plaintiffs application. The court declined to address the plaintiffs facial constitutional challenge of § 13b-103 (b) on the ground that a party who has sought a benefit under a particular statute cannot subsequently challenge that statute’s validity in the same proceeding. On the merits, the court concluded that the department had properly applied the standards set forth in § 13b-103 (b). The plaintiff has appealed.

The record discloses the following undisputed facts. The plaintiff is a livery operation with headquarters in Greenwich. Its business has grown steadily and, at the time of the department’s decision, was worth approximately $15.6 million. It operates a fleet of ninety vehicles, which are used primarily for interstate trips to transport passengers to places such as casinos, airports, dances and corporate headquarters. At the time of the plaintiffs application, twenty-six of its vehicles were licensed to provide intrastate services.

On appeal, the plaintiff challenges the judgment of the trial court on three grounds. It claims that (1) § 13b-103 (b) is an unconstitutional delegation of power because the statute does not contain a clear legislative principle to guide the department in addressing applications for intrastate livery vehicle permits, (2) the trial court applied an improper standard of review in adjudicating its administrative appeal and (3) the department improperly applied the standards delineated in § 13b-103 (b) in the circumstances of this case. The department asks us to affirm the court’s judgment in all respects.

Because, at this juncture, each of the plaintiffs claims raises issues of law, our review is plenary. Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002); see also Wagner v. Clark Equipment Co., 259 Conn. 114, 122, 788 A.2d 83 (2002).

I

The plaintiff first claims that the limitations contained in § 13b-103 (b) are unenforceable because the statute lacks constitutionally required standards. In so doing, the plaintiff maintains that the trial court improperly declined to consider this claim on its merits.

The plaintiff contends that the trial court improperly ruled that the plaintiff could not raise a facial constitutional challenge of § 13b-103 (b) in an administrative appeal under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. The court stated that “ [i]t is settled law that a party who has sought relief under a statute or ordinance may not challenge its constitutionality in the same proceeding. See Carofano v. Bridgeport, 196 Conn. 623, 628, 495 A.2d 1011 (1985); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968).” Because of cases decided after those on which the court relied, we disagree with its holding. In our view, the plaintiffs facial constitutional claim was properly before the court in this case.

Under the UAPA, a party may appeal from the decision of an agency to the Superior Court. The court is required to 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 . . . .” General Statutes § 4-183 (j). A party may also file a declaratory judgment action with the agency “as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.” General Statutes § 4-176 (a). After a ruling by the agency, or a decision by the agency not to issue a ruling, the party may then file a declaratory judgment action with the trial court. General Statutes § 4-175 (a).

We have not found, nor have the parties cited, any cases under the UAPA that directly address whether a party may raise facial challenges to a statute’s validity in an administrative appeal. Our Supreme Court, however, has discussed the rule governing the adjudication of constitutional issues raised in administrative appeals that do not fall under the UAPA.

For many years, Connecticut courts have held that a person cannot seek a benefit under a particular statute and then, in the same proceeding, challenge the statute’s constitutionality. See, e.g., Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955), cited in Carofano v. Bridgeport, supra, 196 Conn. 628.

Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989), advised litigants to pursue a claim of facial unconstitutionality by way of a declaratory judgment action rather than by an appeal from the denial of an application under the applicable land use regulations. Id., 563. It reasoned that the determination of the validity of a statute was a matter of interest not only to the litigant but also to other persons who might be affected by the statute. Id.

In Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), a tax appeal raised under General Statutes § 12-119, the Supreme Court overruled Cioffoletti. The court held that, in an administrative appeal from a contested administrative decision, the appellant could raise a facial constitutional challenge to the underlying statute. The court stated that the dis-positive issue was whether third parties would be so affected by the tax assessment that they needed the kind of notice provided by a declaratory judgment action. The court concluded that, in that case, they did not need such notice. Id., 576. The court expressly overturned “the Cioffoletti rule requiring that facial attacks on the validity of legislation be brought in the form of declaratory judgment actions instead of administrative appeals.” Id., 582.

The court based its conclusion on three reasons. It first held that Florentine and its progeny did not support the Cioffoletti rule because none of them had held that a declaratory judgment action was the exclusive procedural vehicle for a challenge to the constitutionality of a particular statute. Id., 579-80. Second, the court noted that it had previously permitted challenges to the constitutionality of a statute through actions other than declaratory judgment actions. Id., 580-81. Finally, the court decided that the concern for third party interests did not outweigh the legislature’s decision to authorize statutory appeals as an avenue for relief. Id., 581-82.

Stafford Higgins Industries, Inc., casts great doubt on the principle that it is improper simultaneously to seek a benefit under a particular legislation and to challenge the validity of that legislation in the same proceeding. Like Stafford Higgins Industries, Inc., this case does not place third party interests in jeopardy. Stafford Higgins Industries, Inc., is reinforced by Rayhall v. Akim Co., 263 Conn. 328, 819 A.2d 803 (2003), in which the Supreme Court held that even though the workers’ compensation review board lacked jurisdiction to consider constitutional issues, a reviewing court had such jurisdiction. Id., 337-41.

We recognize that, unlike Stafford Higgins Industries, Inc., the present case involves an administrative appeal under § 4-183 (j) rather than a statutory appeal under § 12-119. Similarly, this case is not an appeal from the workers’ compensation review board. We have, however, relied on cases arising in the context of appeals from other kinds of boards to decide the proper scope of UAPA appeals. See Mohican Valley Concrete Corp. v. Zoning Board of Appeals, 75 Conn. App. 45, 51, 815 A.2d 145 (2003).

Stafford Higgins Industries, Inc., and Rayhall strongly suggest that our older cases denying a litigant the opportunity to raise a facial constitutional challenge to a statute under which that litigant sought a benefit are no longer good law. We conclude, therefore, that the plaintiffs facial constitutional challenge to § 13b-103 (b) is properly before us.

II

We turn now to the merits of the plaintiffs facial constitutional claim. The plaintiff claims that § 13b-103 (b) is unenforceable because it is an unconstitutional delegation of legislative power in violation of the constitution of Connecticut, art. II and art. Ill, § l. The plaintiff contends that § 13b-103 (b) violates constitutional principles of separation of powers because the statute does not provide any primary standards or intelligible principles to guide the department in its consideration of applications such as the one in this case.

“ [I]n passing upon the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity .... The party challenging a statute’s constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Botlone v. Westport, 209 Conn. 652, 657, 553 A.2d 576 (1989).

“The law-making power is in the legislative branch of our government and cannot constitutionally be delegated . . . but the General Assembly may carry out its legislative policies within the police power of the state by delegating to an administrative agency the power to fill in the details. ... In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform.” (Citations omitted; internal quotation marks omitted.) New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 149, 384 A.2d 337 (1977). “Where a statute . . . vests public officials with the discretion to grant, refuse or revoke a license to carry on an ordinarily lawful business, and does not set an express standard to guide and govern the exercise of this discretion, the attempted delegation of power is a nullity.” Id., 151.

Under § 13b-103 (a) (1), to decide whether to issue a livery service permit, the department must determine “the nature and extent of the service to be rendered” and must certify “that public convenience and necessity will be improved by the operation and conduct of such livery service. . . .” General Statutes § 13b-103 (a) (l). Section 13b-103 (b) instructs the department to “take into consideration the present or future public convenience and necessity for the service the applicant proposes to render, the suitability of the applicant or the suitability of the management if the applicant is a limited liability company or corporation, the financial responsibility of the applicant, the ability of the applicant efficiently and properly to perform the service for which authority is requested and the fitness, willingness and ability of the applicant to conform to the provisions of this chapter and the requirements and regulations of the department under this chapter.” General Statutes § 13b-103 (b).

The plaintiff argues that the “public convenience and necessity” standard lacks the certainty required to pass constitutional muster. This absence of certainty, according to the plaintiff, makes the department’s decisions arbitrary. We disagree.

“The test for constitutionally sufficient standards to govern the exercise of delegated powers requires only that the standards be as definit[e] as is reasonably practicable under the circumstances.” (Internal quotation marks omitted.) State v. Campbell, 224 Conn. 168, 180, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993). “[T]he legislative process would frequently bog down if the General Assembly were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied .... To require any more specificity in the standards . . . would hamper the flexibility needed [for the department to carry out its duties]. ” (Citations omitted; internal quotation marks omitted.) University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 398-99, 512 A.2d 152 (1986).

Applying that test in this case, we conclude that the criteria set out in § 13b-103 (b) are constitutionally sufficient. The statute directs the department to consider specified factors in its determination of whether to issue livery vehicle permits. These factors focus on the financial status and operational capabilities of the applicant and the public need for the service proposed by the applicant. The constitution does not require a statute to stipulate the exact number of livery permits that would meet the public need and an applicant’s capacity for livery service.

Our decision comports with the balance that our Supreme Court has struck between preserving an agency’s flexibility in carrying out its duties and the constitutional mandate of reasonable specificity. See id. (upholding statute allowing governor to reduce budgetary allotments when there was “a change of circumstances” or when governor “deems necessary”); see also Cioffoletti v. Planning & Zoning Commission, supra, 209 Conn. 560-61 (recognizing that term “necessary” is used in many legal settings). The court likewise has upheld the constitutional validity of a statute containing a standard similar to that contained in § 13b-103 (b) that empowered an agency to apply the standard of “public convenience and necessity.” See Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 267-68, 140 A.2d 874 (1958); Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 670-71, 103 A.2d 535 (1954).

For a contrary point of view, the plaintiff cites Mitchell v. King, 169 Conn. 140, 363 A.2d 68 (1975). In that case, the Supreme Court held that General Statutes (Rev. to 1975) § 10-234 had unconstitutionally authorized the defendant, a board of education, to expel disruptive students. Mitchell v. King, supra, 144-45. The statute provided that “[t]he board of education of any town may expel from school any pupil . . . who after a full hearing is found guilty of conduct inimical to the best interests of the school.” Id., 141 n.l. The court concluded that the meaning of “inimical to the best interests” was “virtually unlimited” and did not sufficiently guard against arbitrary agency action. Id., 144.

In our view, Mitchell is distinguishable. The standard in § 13b-103 (b) is “public convenience and necessity,” a standard that permits an applicant to provide relevant factual data in support of a permit application. The standard in § 13b-103 (b) is in the nature of a moving target reflecting changing commercial circumstances. In addition, the holding in Mitchell was premised on the proposition that the statute was void for vagueness, not that it embodied an unconstitutional delegation of authority. Id., 144-45. Cases subsequent to Mitchell have characterized it in this way. See, e.g., State v. Jason B., 248 Conn. 543, 556, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999); Packers. Board of Education, 246 Conn. 89, 115, 717 A.2d 117 (1998).

We conclude that § 13b-103 (b) provides the department with sufficient guidance to grant or to deny permit applications against the myriad of factual scenarios that may arise. The statute therefore is not an unconstitutional delegation in violation of the constitutional doctrine of separation of powers.

Ill

The plaintiff also claims that the trial court employed an improper standard in reviewing the department’s decision. In addressing the department’s interpretation of § 13b-103 (b), the court stated that it “gives deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purpose. MacDermid, Inc. v. Dept. of Environmental, Protection, [257 Conn. 128, 138, 778 A.2d 7 (2001)].”

MacDermid, Inc., held that the scope of judicial review of an administrative agency’s action under the UAPA is “very restricted.” Id., 136. The substantial evidence rule that governs UAPA appeals is satisfied “if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. . . . Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) Id., 137. Only administrative determinations of novel questions of law are excluded from the principle of special deference. Id.; see also Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 260-63, 788 A.2d 60 (2002).

The plaintiff argues that the trial court’s decision in this case was too deferential because the court failed to recognize that the questions presented by its application were purely questions of law. The plaintiff is mistaken.

In the proceedings before the department, the plaintiffs application presented questions both of fact and of law. The department was required to make extensive findings of fact about the plaintiffs capabilities to operate a livery service and the public need for the service proposed by the plaintiffs application. The department then had to apply to those facts the factors delineated in § 13b-103 (b). MacDermid, Inc., holds that when an agency must make a case-by-case determination of matters that fall within the department’s expertise, a deferential standard of review is proper even if the particular legal issue is a novel one. MacDermid, Inc. v.Dept. of Environmental Protection, supra, 257 Conn. 139. As was the case in MacDermid, Inc., the plaintiffs application required a “technical, case-by-case review . . . that is precisely the type of situation that calls for agency expertise.” (Citation omitted; internal quotation marks omitted.) Id.

For a contrary precedent, the plaintiff relies on Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 708 A.2d 202 (1998). That case is distinguishable. In Texas-Ohio Power, Inc., the plaintiff sought a declaratory ruling from the department of public utility control about the retail sale of electricity by the defendant. Id., 639-40. There were no disputed facts. Id., 643. Because the only questions raised by the plaintiff were questions of law challenging the agency’s interpretation of the applicable statutes, the court held that deferential review was unwarranted. Id., 643-44.

Unlike Texas-Ohio Power, Inc., this case required administrative evaluation of the plaintiffs application with respect to mixed questions of law and fact. We conclude, therefore, that the trial court employed the proper method of analysis in its review of the plaintiffs claims of administrative error.

IV

The plaintiffs final claim is that the trial court improperly concurred in the department’s interpretation of § 13b-103. In its view, it was entitled to more than five additional intrastate vehicle permits because (1) the department improperly construed the statute to require an applicant to satisfy all five criteria enumerated in § 13b-103 (b) and (2) the department improperly applied the “public convenience and necessity” factor because it failed to articulate a definitive standard for that determination. Both claims are unpersuasive.

“We follow the method of statutory interpretation recently articulated in State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003). The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.” (Internal quotation marks omitted.) Nastro v. D’Onofrio, 76 Conn. App. 814, 821, 822 A.2d 286 (2003), quoting State v. Courchesne, supra, 577.

“[I]t is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . When an agency has expertise in a given area and a history of determining factual and legal questions similar to those at issue, its interpretation is granted deference by the courts.” (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 138-39.

We agree with the trial court that the department reasonably interpreted § 13b~103 (b) to require an applicant to satisfy all of the factors enumerated therein. Textually, the factors enumerated in the statute are separated by the conjunction “and” as opposed to the conjunction “or.” In addition, § 13b-103 (a) (1) expressly requires the department, in the absence of certain exceptions, to certify “that public convenience and necessity will be improved by the operation and conduct of such livery service. ...” The plaintiff has not cited any legislative history to support its narrower reading of § 13b-103 (b). Finally, it has not suggested why, as a matter of policy, the legislature would have intended to limit the department’s consideration to only one of the statutory factors.

We also agree with the court that the department properly applied the “public convenience and necessity” factor in this case. The department reviewed the plaintiffs trip sheets for a five day period selected by the plaintiff, heard testimony from individuals associated with the plaintiffs business and reviewed letters from former clients. In light of this evidence, the department reasonably determined that, although the plaintiffs interstate business had grown over the years, its intrastate business had not.

The department’s interpretation of “public convenience and necessity” centered on the usage of the plaintiffs vehicles for intrastate trips. The department explained that it relied primarily on the plaintiffs own trip records so as “to ensure that the [plaintiff] is using its intrastate fleet for such intrastate service and that these vehicles are being used to their fullest extent, thereby showing that the present and future public convenience and necessity will be improved by a grant of additional authority.”

This reading of the statute comports with a decision of our Supreme Court interpreting the same statutory language in General Statutes (1958 Rev.) § 16-283, now § 13b-389. That statute, like § 13b-103 (a) (1), requires a new common carrier to obtain a certificate of “public convenience and necessity.” In Briggs Corp. v. Public Utilities Commission, 148 Conn. 678, 174 A.2d 529 (1961), the Supreme Court interpreted that phrase to mean that “the benefits to be derived from the operation [of the motor vehicle] will not be limited to a few persons in a particular locality. It means benefit to the public generally, and, in the determination of public convenience and necessity, the effect of the commissioner’s action upon the whole public instead of a small part of it must be considered.” Id., 682; see also Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., supra, 145 Conn. 261 (considering General Statutes [1949 Rev.] § 5646, now § 16-235, governing utility structures, “public convenience and necessity” refers to immediate public need).

The plaintiff asserts, however, that the trial court should have held that the department improperly limited its assessment of the plaintiffs business and the public need for the service proposed. In the plaintiffs view, it was impermissible to examine trip records for only five days, even though the plaintiff chose the particular five days. The proper inquiry, the plaintiff argues, should focus on periods of peak demand. Presumably, the plaintiff thinks that no one five day period demonstrates peak demand livery usage. The department, however, was not required to agree with the plaintiffs insistence that peak demand usage was the proper measure of public usage.

We conclude, therefore, that the trial court’s judgment was proper both procedurally and substantively. The court employed the proper standard in reviewing the plaintiffs appeal of the department’s decision. Furthermore, the court properly determined that the department had acted properly in construing § 13b-103 (b) to require a multifactor analysis and in applying the “public convenience and necessity” standard to the plaintiffs application for additional intrastate livery service.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants named in this action are Laila Mandour, who was the hearing officer, and Richard Blumenthal, attorney general.

       The plaintiff does not challenge any of the factual determinations of the department or the trial court. Additionally, the plaintiff does not contest the judgment of the court, Cohn, J., granting the department’s motion to strike the second count of the plaintiffs complaint seeking a declaratory judgment as to the validity of § 13b-103 (b).

       The cases cited by the trial court do not involve administrative appeals brought under the UAPA. In Garofano, the plaintiff police officers sought an ipjunction challenging the defendant municipality’s ordinance requiring all police officers to live within the city limits. Carofano v. Bridgeport, supra, 196 Conn. 625-26. On appeal, the plaintiffs challenged the constituí ionality of General Statutes § 7-473c, the “mandatory binding arbitration” statute that governs disputes between municipalities and representatives of their employees over collective bargaining agreements. Id. In J & MRealty Co., the plaintiff appealed from the disapproval of its subdivision application by the Norwalk common council. The plaintiff challenged the validity of the relevant municipal regulations on the ground that they were impermissible delegations of power. J & M Realty Co. v. Norwalk, supra, 156 Conn. 187.

       General Statutes § 4-183 (j) provides: “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 1he 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 1he 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 and, if appropriate, may render a judgment under subsection (lc) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.” (Emphasis added.)

       General Statutes § 4-176 (a) provides: “Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

       General Statutes § 4-175 (a) provides in relevant part: “If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides .not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. . . .”

       It is worth noting that the court, in Cioffoletti, did not preclude review of the plaintiffs’ constitutional claim, despite the plaintiffs’ failure to file a declaratory action. In that case, the plaintiffs had claimed that the commission’s decision not to grant the plaintiffs’ application for an excavation permit constituted a taking without just compensation in violation of the fifth amendment to the United States constitution. Cioffoletti v. Planning & Zoning Commission, supra, 209 Conn. 546. Although recognizing the principal articulated in Florentine, the court concluded that the legislature, in enacting General Statutes § 22a-43a (a), carved out a specific exception to takings claims brought against an agency carrying out the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45. Cioffoletti v. Planning & Zoning Commission, supra, 550-51.

       Although the plaintiff also argued in its brief that § 13b-103 (b) was unconstitutionally vague in violation of the fourteenth amendment to the United States constitution, it abandoned this claim at oral argument.

       General Statutes § 13b-103 (a) (1) provides in relevant part: “No person, association, limited liability company or corporation shall operate a motor vehicle in livery service until such person, association, limited liability company or corporation has obtained apermit from the Department of Transportation, specifying the nature and extent of the service to be rendered and certifying that public convenience and necessity will be improved by the operation and conduct of such livery service. . . .” (Emphasis added.)

       None of these exceptions is applicable to the present case. See General Statutes § 13b-103 (a) (2) through (4).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. SALVATORE CARACOGLIA
    (AC 22607)
    Foti, Schaller and Flynn, Js.

      Argued May 2
    officially released July 15, 2003

      Darcy McGraw, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and George Ferko, Sr., senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Salvatore Caracoglia, appeals from the judgment of conviction, rendered after a jury trial, of two counts of breach of the peace in violation of General Statutes (Rev. to 2001) § 53a-181 (a) (2) and (5). On appeal, the defendant claims that the trial court improperly allowed the state to amend the information. The defendant also claims that § 53a-181 (a) (5) is unconstitutional under the first* and fourteenth amendments to the United States constitution because it is vague and overbroad, and that he was convicted under that statute in violation of article first, §§ 5 and 8, 6of the Connecticut constitution. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Stephen Ozga, had known each other since the late 1970s and had had a friendly relationship until recent years. On September 1, 2001, the parties were no longer friendly and happened to meet at about noon at the Ace Hardware Store on South Main Street in Middletown.

The defendant approached the victim, stood directly in front of him and said, “I want to talk to you, motherfucker.” The victim replied, “Sal, get away from me,” and tried to walk around the defendant to get to his car. The defendant, however, pursued him and said, “You asshole, you motherfucker.” The reply again was, “Sal, would you just get away from me?” For a third time, the defendant called the victim a “motherfucker.”

As the victim again tried to get around the defendant, the defendant punched him in the chest near the left shoulder. At that point, the victim said, “Sal, let’s straighten this out. Let’s call a cop. Let the cop straighten this out.” The defendant again punched the victim on the left side. The victim turned to retreat into the store, and the defendant kicked him in his buttocks. At no time did the victim attempt to strike the defendant. At the time of the attack, people were walking in the parking lot and passing in cars.

I

The defendant first claims that the court improperly permitted the state to amend the information after the conclusion of all the evidence in violation of Practice Book § 36-18. On appeal, our review of the court’s decision to permit an amendment to the information is one of abuse of discretion. State v. Morris, 49 Conn. App. 409, 416, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

Practice Book § 36-18 provides in relevant part: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. ...” The only limiting requirement under that section is that the state may not charge additional or different offenses in an amendment and that the amendment may not prejudice the substantive rights of the defendant. State v. Prat, 66 Conn. App. 91, 98, 784 A.2d 367 (2001). Practice Book § 36-18 “is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. ... It is the defendant’s burden to provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” (Citation omitted; internal quotation marks omitted.) State v. Morris, supra, 49 Conn. App. 415.

In this case, the state, on October 24, 2001, by substitute information, charged the defendant with two counts of breach of the peace in violation of § 53a-181. The trial began on October 30, 2001. On November 2, 2001, after the parties had presented all the evidence, but before closing arguments and jury instructions by the court, the state filed its second substitute information, which still contained two counts of breach of the peace. In count one, however, the state eliminated the allegations of “recklessly creating a risk” and “engaging in tumultuous behavior.” Count one, therefore, alleged as relevant “that the defendant, acting with the intent to cause inconvenience, annoyance or alarm, used abusive or obscene language in a public place . . . .” Count two remained unchanged.

The defendant, who had requested a charge to the jury on self-defense, was told by the court during a charging conference that the court would deliver such an instruction as to count two, but not as to count one. The defendant responded: “Just to put on the record, Judge, I note that when the case was originally submitted to the jury in the original information, was read to them, it did include tumultuous behavior which would connote some sort of physicality and, therefore, I understand that the state has amended that. The court’s position is that it would not apply since it’s only language. Just note that, I guess I don’t have much of an objection — I don’t have much of a basis to object on the current case law. I just say on the grounds of fairness, I think that the case was originally submitted — count one originally submitted as tumultuous behavior, and on that basis I’d object. I don’t think it’s fair . . . [t]o the extent that the information was amended at this late stage in the game once both sides had already rested their cases.”

The very limited record also discloses that the court stated: “It’s just [the] court’s belief, though, to address that issue at least briefly, that the state is allowed to amend the information up until the time the jury receives it for deliberation so long as the state does not increase or change the charge against the defendant. So, it’s the court’s position that the state is allowed to, in fact, conform its information to what it believes it has presented to the juiy beyond a reasonable doubt, and your exception to the state amending the information is noted, but I don’t believe there is any basis to prevent the state because [it] did not increase or change the charge in any manner.” The defendant argues that the court failed to make a finding of good cause and failed to find that he was not prejudiced.

The defendant’s failure to object on the basis of a lack of good cause speaks for itself. The basis of the defendant’s objection at trial was “fairness,” specifically, that his self-defense argument was taken away because “tumultuous behavior” was not proven and therefore was removed from the case. The defendant’s position is without merit. The sole issue on his claim is whether the amended information gave him sufficient notice of the charges to allow him to prepare an adequate defense. State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). The defendant does not claim, nor can he, that the state charged an additional or different offense by the omission of “tumultuous” behavior, and cannot demonstrate that a substantive right may have been prejudiced by the amended information.

“Moreover, an amendment to an information does not necessarily prejudice a defendant’s substantive rights within the meaning of Practice Book § [36-18] simply because the defendant may have evidence available to contradict a factual allegation of the original charge, and, as a result of the amendment, he no longer faces that particular factual allegation.” Id., 615 n.15.

Because the amendment deleted one of the two subdivisions, the defendant would be hard pressed to show prejudice or that the amended information in any way deprived him of adequate notice for preparation of his defense. We conclude that the court did not abuse its discretion in allowing the state to amend the information.

II

The defendant next claims that prosecution under the first count pursuant to § 53a-181 (a) (5) violated his constitutional right to a fair trial because the statute is vague and overbroad. The defendant did not raise that issue at trial and, thus, failed to preserve it properly for appeal. Nevertheless, a defendant may prevail on an unpreserved claim of constitutional error if it meets all of the conditions set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

We conclude that the record is adequate for review and that the claim is of constitutional magnitude. See State v. Indrisano, 228 Conn. 795, 800-801, 640 A.2d 986 (1994) (in reviewing unpreserved constitutional claim of vagueness, first two prongs of Golding met where record reflects defendant convicted under statute in question and sufficiently shows conduct that formed basis of conviction). We therefore proceed by addressing Golding’s third prong, namely, whether a clear constitutional violation deprived the defendant of a fair trial. Id.

The defendant alleges that subdivision (5) of § 53a-181 (a) has become unconstitutionally vague and over-broad. He claims that because our Supreme Court also has construed subdivision (1) as encompassing a proscription of “fighting words,” that creates an inherent ambiguity about the meaning of “the use of abusive or obscene language in a public place,” and that he could not have foreseen that his actions would constitute a breach of the peace. He also claims that subdivision (5) is overbroad, as it no longer proscribes “fighting words” and, therefore, is susceptible to arbitrary enforcement and may be used to proscribe otherwise protected speech. We disagree with both assertions.

As a preliminary matter, we note that legislative enactments carry with them a strong presumption of constitutionality. Hammond v. Commissioner of Correction, 259 Conn. 855, 876, 792 A.2d 774 (2002). A party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt. Id. “In the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. ... In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” (Citations omitted; internal quotation marks omitted.) Sassone v. Lepore, 226 Conn. 773, 778, 629 A.2d 357 (1993). We construe statutes to give effect to all of their provisions. State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996).

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. . . . [The doctrine] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . The United States Supreme Court has emphasized that the more important aspect of the vagueness doctrine is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . and must not impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. . . . Finally, [i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness . . . for [i]n most English words and phrases there lurk uncertainties. . . . [T]he statute must contain some core meaning within which the defendant’s actions clearly fall. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. McMahon, 257 Conn. 544, 551-53, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002).

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue.” Packer v. Board of Education, 246 Conn. 89, 105, 717 A.2d 117 (1998). “To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute].” (Internal quotation marks omitted.) Id., 106. “[W]hen an allegedly vague statute implicates the first amendment right of free speech, the statute’s constitutionality is tested for vagueness on its face.” (Internal quotation marks omitted.) State v. Ehlers, 252 Conn. 579, 584, 750 A.2d 1079 (2000). In such a case, “the defendants may challenge the validity of a statute’s application to marginal situations even though [their] own conduct may clearly fall within the statute’s proscriptions.” (Internal quotation marks omitted.) State v. Proto, 203 Conn. 682, 697, 526 A.2d 1297 (1987).

The basis of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by freedom of speech. Ramos v. Vernon, 254 Conn. 799, 812, 761 A.2d 705 (2000). Challenges for vagueness and overbreadth are closely related, but they are not identical. State v. Indrisano, supra, 228 Conn. 798 n.4. In certain situations, however, they may be functionally indistinguishable. State v. Proto, supra, 203 Conn. 706.

The defendant argues that our courts have introduced “confusion into the definition of ‘fighting words’ under Connecticut’s breach of the peace statute [in that it] fails to provide notice of what conduct is proscribed under subdivision (a) (1) as opposed to (a) (5), and there are now insufficient guidelines to protect from arbitrary and discriminatory enforcement.” The defendant argues that “abusive language” cannot be penalized unless it consists of “fighting words,” but that not all forms of fighting words necessarily are “abusive or obscene.”

In State v. Indrisano, supra, 228 Conn. 795, our Supreme Court, in considering the mens rea required by the disorderly conduct statute, General Statutes § 53a-182, stated that “the predominant intent is to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” State v. Indrisano, supra, 810. Under “subdivision (1) of § 53a-182 (a) . . . physical fighting, and physically violent, threatening or tumultuous behavior” rather than mere verbal speech is prohibited. Id., 812. In Szymkiewicz, a case in which the breach of the peace statute, § 53a-181 (a) (1) was at issue, our Supreme Court stated that § 53a-181 (a) (1) “does not require proof of actual physical conduct on the part of the defendant with a victim,” and concluded “that a fair reading of Indrisano indicates that speech can be proscribed not only when accompanied by actual physical conduct, but also when it can be identified as fighting words that portend physical violence.” State v. Szymkiewicz, supra, 237 Conn. 620. Through those cases, our Supreme Court has concluded that the words “engaged in fighting or in violent, tumultuous or threatening behavior” should not reach speech protected by the first amendment.

Our Supreme Court stated that “[subdivision (1) of § 53a-181 (a) proscribes speech that properly can be characterized as fighting words when, under the totality of the circumstances, that speech amounts to ‘violent, tumultuous or threatening behavior’ that portends violence, while subdivision (5) proscribes ‘abusive or obscene language.’ ” Id., 622. The court also made clear that all forms of fighting words were not necessarily abusive or obscene, and that the court would, “[w]hen and if a case arises in which the prosecution proceeds under subdivision (5) of § 53a-181 (a) . . . construe ‘abusive’ and ‘obscene’ under the particular facts of that case, taking into account, of course, the principle that the legislative language may not be considered as mere surplusage.” Id.

Although the constitutionality of subdivision (5) of § 53a-181 (a) was not at issue, the Szymkiewicz court rejected a surplusage argument and did not disturb the fighting words gloss from the punishment of abusive speech. “Fighting words” may consist of language that is neither obscene nor abusive. The language of the statute leads us to conclude that the distinction that may be drawn between the “fighting words” as contemplated under subdivision (1) and those under subdivision (5) can be found “under the totality of the circumstances,” as expressed in Szymkiewicz, which gives rise to the use of the words. Subdivision (1) proscribes fighting words uttered in a violent, tumultuous or threatening manner; id., 618-20; whereas subdivision (5) proscribes fighting words that tend to induce immediate violence by the person or persons to whom the words are uttered because of their raw effect. The core meaning of subdivision (5) remains intact; fighting words may arise in different contexts not confined to abusive or obscene language. We therefore must conclude that § 53a-181 (a) (5) is not unconstitutionally vague.

“To determine whether a statute reaches a substantial amount of constitutionally protected conduct, we must first interpret its language and determine the scope of its prohibitions.” State v. Linares, 232 Conn. 345, 365, 655 A.2d 737 (1995). We view subdivision (5) as not prohibiting protected speech or other expressive conduct. Speech or expressive conduct is not proscribed unless and until the words or expressive conduct rise to the level of fighting words so as to result in a breach of the peace. Subdivision (5) is not overbroad; it does not prohibit constitutionally protected speech. We therefore conclude that there was no clear constitutional violation that deprived the defendant of a fair trial and that his claim fails to satisfy the third prong of Golding.

Ill

The defendant also alleges that his conviction under subdivision (a) (5) violated article first, §§ 5 and 8, of the constitution of Connecticut. The defendant in his principal brief states that “Connecticut decisions have left an unsolvable ambiguity as to the meaning of ‘abusive or obscene’ under subdivision (a) (5) of the breach of the peace statute. Thus, for all the reasons the statute is vague and overbroad under federal analysis, it is so for purposes of the Connecticut constitution.” Although we agree that an even greater degree of scrutiny may be applied under our state constitution, we conclude that § 53a-181 (a) (5) is not vague or overbroad under the Connecticut constitution for the same reasons that it is not vague or overbroad under the federal constitution. As discussed in part II, “abusive language” may be interpreted as “fighting words,” which are not protected by our state constitution.

The judgment is affirmed.

In this opinion the other judges concurred.

       1 General Statutes (Rev. to 2001) § 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: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which he is not licensed or privileged to do . . . .”

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No state shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person . . . the equal protection of the laws.”

       Article first, § 5, of the Connecticut constitution provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have the right ... to be informed of the nature and cause of the accusation . . . .”

       Count one alleged, inter alia, that the defendant “acting with the intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, engaged in tumultuous behavior in a public place and used abusive or obscene language in a public place ... in violation of Section 53a-181 (a) (1) and (a) (5) . . . .” Count two alleged, inter alia, that the defendant “did assault or strike another person ... in violation of Section 53a~181 (a) (2)----”

       The defendant does not argue that the state may not amend an information to conform to the evidence as presented; see State v. Ryan, 53 Conn. App. 606, 620, 733 A.2d 273 (1999); or dispute that Practice Book § 36-18 is limited only by the requirement that no additional or different offense may be charged in and no substantive rights of the defendant may be prejudiced by an amended information. State v. Van Eck, 69 Conn. App. 482, 491, 795 A.2d 582, cert. denied, 260 Conn. 937, 802 A.2d 92, cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002). Under the circumstances of this case, because the state deleted a reference to one subdivision and because the defendant made no objection as to “good cause,” we conclude that the court’s action implies a finding of good cause.

       In Golding, our Supreme Court held that “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.) State v. Golding, supra, 213 Conn. 239-40.

       Our Supreme Court in Szymkiewicz found the interpretation of the language in the disorderly conduct statute, General Statutes § 53a-182, to be applicable to the breach of the peace statute, General Statutes § 53a-181 (a) (1). State v. Szymkiewicz, supra, 237 Conn. 618-20.