author: Lavery, J.

text:
    State of Connecticut v. Jon Ong
    (10808)
    O’Connell, Lavery and Landau, Js.
    Argued September 30, 1992 —
    decision released January 12, 1993

      Roger J. Frechette, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and Patricia A. Gilbert, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction on one count of simple trespass in violation of General Statutes § SSa-llOa. The defendant was originally charged with one count of first degree criminal trespass in violation of General Statutes § 53a-107 (2), and with one count of interfering with a police officer in violation of General Statutes § 53a-167a. By substitute information, the state’s attorney charged the defendant with simple trespass.

The defendant claims that his conviction should be reversed because (1) the trial court did not have subject matter jurisdiction to hear the case, (2) the trial court did not have personal jurisdiction over the defendant, and (3) the evidence was not sufficient to find the defendant guilty of violating General Statutes § 53a-110a. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On Saturday, November 10, 1990, the defendant, along with several other individuals, took part in an antiabortion protest at Medical Options, a clinic in Danbury. The defendant and the other protestors arrived at the clinic in a van at 8 a.m. A group of protesters, including the defendant, rushed from the van, through the outside door into the building, through the interior door into the Medical Options waiting and reception area, through the waiting area and through another door into a hall lined with offices, examining rooms, operating rooms, and recovery rooms. The group sang, prayed, shouted and held up signs. Ten members of the group chained themselves together with bicycle locks. The police arrived and asked the protesters to disperse. After refusing to leave, the protesters, the defendant among them, were arrested and removed from the building.

The following procedural history is pertinent to resolving the issues on appeal. The defendant was charged by summons and complaint on November 10, 1990, with the misdemeanors of criminal trespass and interfering with a police officer. He agreed to appear in court on November 30. The defendant appeared as scheduled, pleaded not guilty, and elected a jury trial. The state’s attorney filed a substitute information on October 22, 1991, charging the defendant with one count of simple trespass, an infraction. On October 29, shortly before the trial began, the defendant moved to dismiss the charges, claiming that the court lacked subject matter and personal jurisdiction. After the motion was denied, the defendant pleaded not guilty to the substituted charge. The case proceeded to trial, and the defendant was found guilty of simple trespass and fined $35.

The defendant first claims that the court did not have subject matter jurisdiction. We disagree, noting that State v. Anthony, 24 Conn. App. 195, 588 A.2d 214, cert. denied, 218 Conn. 911, 591 A.2d 813, cert. denied, U.S. , 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991), is dispositive of this issue on appeal.

The defendant argues that subject matter jurisdiction was not established because the state’s attorney initiated the prosecution of the infraction, simple trespass, when he filed a substitute information. The defendant claims that the prosecution of an infraction must be initiated by the local or state police in accordance with General Statutes § 51-164n. As we noted in Anthony, General Statutes § 51-164s confers original jurisdiction for all causes of action on the Superior Court, except for those causes over which the Probate Court, by statute, has original jurisdiction. General Statutes § 51-164n does not provide for an exclusive procedure for the initiation for infraction violations, nor does it affect or diminish the original jurisdiction of the Superior Court. Initiating prosecution by means of summons and complaint was established in order to allow the police, as well as the prosecuting authorities, to begin the process. State v. Anthony, supra, 202. Granting police this discretion allows them to “avoid the imposition of a custodial arrest, unless found necessary to ensure appearance for trial.” A. Spinella, Connecticut Criminal Procedure, p. 394.

Misdemeanors, violations, and infractions may be prosecuted by either information or complaint. Practice Book § 616. A prosecutor has broad authority to amend an information prior to the commencement of trial. Practice Book § 623. “There is no constitutional requirement that the state use a particular type of charging document when prosecuting a crime.” State v. Weisser, 9 Conn. App. 255, 258 n.1, 518 A.2d 655 (1986) (Spallone, J., concurring), cert. denied, 202 Conn. 803, 519 A.2d 1207 (1987). In this case, the defendant was originally charged with criminal trespass and interfering with a police officer. The state’s attorney then reduced the charge by substitute information. The defendant has “failed to show that the prosecutor abused his discretion in choosing to proceed under a statute that imposed a lesser punishment.” State v. Steinmann, 20 Conn. App. 599, 608, 569 A.2d 557, cert. denied, 214 Conn. 806, 573 A.2d 319 (1990).

Next, the defendant claims that the court did not have personal jurisdiction over the defendant. We are unpersuaded. Personal jurisdiction may be established by consent of the accused or by waiver unless an objection is properly preserved. The accused waives his objection to personal jurisdiction by pleading not guilty and by going to trial. State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984). The record shows that the defendant pleaded not guilty to the original charges on November 30,1990. Just prior to trial on October 29, 1991, the defendant moved to dismiss for lack of personal jurisdiction. The defendant claimed that because he did not plead to the reduced charge by the method set out in General Statutes § 51-164n, there was no personal jurisdiction. The court denied this motion and granted the defendant an exception before accepting the defendant’s plea of not guilty on the reduced charge. The defendant’s argument that personal jurisdiction was not established is based on his claim that the prosecuting authorities may not initiate a prosecution for an infraction. It has been established that the Superior Court did have subject matter jurisdiction in this matter; therefore, the defendant’s second claim cannot stand.

The defendant’s third claim is that the evidence presented at trial did not sufficiently support his conviction for simple trespass. Because the appellant did not comply with the requirements of the rules of practice that he preserve an adequate record for review, we choose not to address his evidentiary claim. Although the state, for its own purposes, did provide a copy of the transcript of the proceedings in this case, it remains the responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992).

The defendant’s brief makes it clear that he deliberately chose not to file a transcript of the trial. Citing State v. McNellis, 15 Conn. App. 416, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), the defendant argues that it is the state’s burden to point to a specific part of the record to substantiate a claim that the evidence was sufficient to support a conviction. State v. McNellis, supra, does not support the defendant’s argument. In that case, we declined to review the defendant’s claim that the trial court relied on improper information in determining the defendant’s sentence because the defendant did not provide this court with a vital transcript of an earlier proceeding and “a clear statement of the facts relevant to this issue.” Id., 448.

Our rules of practice place the burden of proving error squarely on the appellant. In this case, the section of the defendant’s brief claiming insufficiency of evidence fails to comply with Practice Book § 4065,* which requires the appellant to support the statement of facts with appropriate references to the record or transcript, and does not permit reliance on any fact that is not set forth in a statement of facts or appropriately incorporated into the brief. Here, the defendant’s brief contained “no more than the bare assertion that insufficient evidence existed . . . .” State v. Buster, 27 Conn. App. 263, 277, 606 A.2d 9, cert. granted, 222 Conn. 909, 608 A.2d 692 (1992).

Absent full compliance with these rules, we are compelled to deny review of an evidence claim. To do otherwise would condone a practice that, in the end, would do a disservice to the bench and bar.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-110a provides: “(a) A person is guilty of simple trespass when knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property.
      “(b) Simple trespass shall be an infraction.”

       The defendant phrased this claim in his brief as follows: “In finding the defendant guilty when there was no proof of ownership or possession, and the premises were open to the public at large.”

       General Statutes § 51-164n provides in pertinent part: “(a) There shall be a centralized infractions bureau of the superior court to handle payments or pleas of not guilty with respect to the commission of infractions ....
      “(b) If the person elects to pay the fine and any additional fee established for the infraction ... he shall send payment, by mail or otherwise, to the centralized infractions bureau. Such payment shall be considered a plea of nolo contendere ....
      “(c) If the person elects to plead not guilty, he shall send the plea of not guilty to the centralized infractions bureau. The bureau shall send such plea and request for trial to the clerk of the geographical area where the trial is to be conducted. . . .”

       General Statutes § 51-164s provides in pertinent part: “The superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. ...”

       Practice Book § 616 provides in pertinent part: “All misdemeanors, violations, and infractions shall be prosecuted by information or complaint. . . .”

       Practice Book § 623 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

       See footnote 2, supra.

       We note that even if we were to interpret the rules of practice differently, and review the evidence presented at trial as revealed in the transcript provided by the state, it is clear that an abundance of evidence led the court to conclude beyond a reasonable doubt that the defendant violated General Statutes § 53a-110a. Evidence presented at trial showed that the defendant was among a group of individuals who rushed through the doors of a medical clinic, past the receptionist, and into a restricted area of the clinic where recovery rooms, operating rooms, and offices were located. A member of the clinic’s staff testified at the trial that patients at the clinic almost always call to schedule an appointment before their arrival. There was no evidence presented showing that the defendant or any of his companions went to the clinic for an appointment, to schedule an appointment, or even to inquire about services. After the defendant and the other protesters ensconced themselves in an area of the clinic that is clearly off limits even to waiting patients, the staff of the clinic asked them to leave. They refused to do so, and eventually had to be forcibly removed from the premises by police officers. Contrary to the defendant’s assertions, nothing in the record indicates that as a member of the public he was invited to enter the clinic in the manner he did and remain there indefinitely, disrupting the clinic’s day-to-day business activities. The trial court correctly concluded in rendering her decision from the bench that property does not lose its private character merely because the public is generally invited to use it for designated purposes. State v. Steinmann, 20 Conn. App. 599, 604, 569 A.2d 557 (1990).

       Practice Book § 4061 provides: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”

       The state, as the appellee, actually claims nothing. It is only responding to the defendant-appellant’s claim that the evidence was insufficient.

       Practice Book § 4065 provides in pertinent part: “The appellant’s brief shall contain the following: . . .
      “(c) A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in the statement of facts required by this subsection or is incorporated into the brief of the appellant in accordance with subsection (d) hereof.
      “(d) The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the record or transcript. ...”


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Barbara Bachyrycz v. Gateway Bank
    (11215)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued December 9, 1992 —
    decision released January 19, 1993

      Joseph Dimyan, for the appellant (plaintiff).

      Jennifer L. Forrence, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the trial court’s denial of her petition to discharge a judgment lien in favor of the defendant, Gateway Bank. On appeal, the plaintiff claims that the trial court improperly found that an equitable interest in real property is subject to a judgment lien pursuant to General Statutes § 52-380a. We disagree with the plaintiff and affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff and her former husband were joint owners of a marital residence in Danbury until their divorce in 1985. They entered into a separation agreement in May, 1985, that provided in relevant part that the husband “shall” convey to the wife his rights, title and interest in the family residence subject to certain conditions. One of the conditions was that when their youngest child reached twenty-one years, or if the wife remarried, the house would be sold and the husband would receive 30 percent of the net sale proceeds. The husband was also required to pay the second mortgage on the house and to make specified alimony and support payments. The separation agreement was incorporated into the dissolution decree. On July 18, 1985, the husband conveyed to the plaintiff, by quitclaim deed, his interest in the house. In a deed recorded one minute later on the same date, the wife conveyed to her husband a 30 percent “equitable lien on the premises.”

The husband still held this equitable interest in the property on February 1, 1988, when the defendant, Gateway Bank, brought suit on a note against the husband and attached his interest in the property. On May 16, 1988, the defendant obtained a judgment in the amount of $13,213.61, plus costs of $201.20. On May 20,1988, the defendant recorded a judgment lien on the husband’s interest in the subject property.

The husband later defaulted on the payments required by the dissolution decree, and the plaintiff brought a contempt proceeding against him. On May 1, 1989, the plaintiff and the husband agreed that his obligation to the plaintiff for arrearage would be satisfied by conveying to the plaintiff whatever interest he still had in the property, including the proceeds from the future sale of it.

The plaintiff argues that, because the husband’s interest in the plaintiff’s real property is an equitable interest, it is not subject to attachment by his creditors. The plaintiff, however, is ignoring legal precedent more than three centuries old. The foundation of the law of insolvency, laid down in 1647; 1 Col. Rec. 151; is that “ ‘every man should pay his debts with his estate, be it what it will be, either real or personal.’ ” Smith v. Gilbert, 71 Conn. 149, 154, 41 A. 284 (1898). The statutory predecessors to § 52-380a have never provided differently. “In conformity with the settled policy of this State, that all the property of a debtor should be holden for the payment of the debts of its owner, our courts have construed the language of these statutes as rendering liable to attachment certain legal and equitable interests in property, the absolute or legal title to which property is not in the debtor, but which interest is within his control and can be fairly appraised or sold; as the interest of one partner in the copartnership property, the interest of a cestui que trust in real estate, an equitable interest in shares of stock, a mortgagor’s equity of redemption, and such other interests in goods or lands, whether legal or equitable, as, with justice to both debtor and creditor may, in the manner provided by statute, be appropriated to the payment of the former’s debts. ” (Emphasis added.) Id.; see also Humphrey v. Gerard, 83 Conn. 346, 355, 77 A. 65 (1910); Ives v. Beecher, 75 Conn. 564, 567, 54 A. 207 (1903). Only those interests that are “so indeterminate, uncertain or contingent that [they are] incapable of being appraised or sold with fairness” are excluded from the operation of this statute. Humphrey v. Gerard, supra, 356.

In the case before us, no uncertainty exists. We know that the husband had, at the time the defendant’s lien attached, an equitable interest of 30 percent of the value of the family residence. Further, the value of this 30 percent is capable of being ascertained. Finally, the debt is one for which the husband has been found responsible. Therefore, it comes within the purview of § 52-380a.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff uses the terms “attachment” and “judgment lien” interchangeably. Attachment of real estate is governed by General Statutes § 52-285, while judgment liens are recorded pursuant to General Statutes § 52-380a. While the purpose of both is to secure an interest in real estate for a creditor, the terms are not to be confused.

       General Statutes § 52-380a provides in pertinent part: “(a) A judgment lien, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property by recording, in the town clerk’s office in the town where the real property lies, a judgment lien certificate ....
      “(b) From the time of the recording of the judgment lien certificate, the money judgment shall be a lien on the judgment debtor’s interest in the real property described.”


author: O’Connell, J.

text:
    State of Connecticut v. Timothy A. Kindrick
    (11286)
    O’Connell, Landau and Heiman, Js.
    Argued December 4, 1992 —
    decision released January 19, 1993

      Carolyn O. Brotherton, for the appellant (defendant).

      John Paul Pannone, assistant state’s attorney, with whom were Shelley L. Graves, certified legal intern, and, on the brief, C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The defendant claims that the trial court improperly (1) precluded evidence of prior sexual conduct of the victim, and (2) failed to rule on reopening the evidence to hear new evidence.

The jury could reasonably have found the following facts. The defendant, a sailor stationed at the submarine base in Groton, met the victim in early August, 1991. They had two dates and, on the evening of August 30, 1991, went on a double date with another couple. It was mutually agreed that they would rent a motel room for watching television, eating pizza and dancing. The victim claimed that, early in the morning of August 31, the defendant sexually assaulted her.

I

The defendant first claims that the trial court improperly granted the state’s motion in limine excluding evidence of the defendant’s prior sexual conduct with the victim. Pursuant to Connecticut’s rape shield law, General Statutes § 54-86f, the trial court conducted a hearing on the motion outside the presence of the jury. The hearing consisted solely of defense counsel’s questioning of the victim regarding her relationship with the defendant. Every question elicited a denial of prior sexual conduct between the victim and the defendant. The closest the victim came to providing an answer that might be helpful to the defendant was her comment, “I do remember kissing and hugging him, but I don’t recall anything else. It’s not in my memory. I’m sorry.” The defendant did not testify at this hearing nor did he disclose, through the testimony of other witnesses, what evidence of prior sexual conduct between the victim and himself he wanted to present. Furthermore, he offered no evidence of consent by the victim.

Our rape shield statute provides that no evidence of the prior sexual conduct of the victim is admissible in evidence unless it falls within one of the four exceptions set forth therein. State v. Christiano, 29 Conn. App. 642, 645, 617 A.2d 470 (1992). The defendant argues that the evidence was admissible under the third and fourth exceptions, General Statutes § 54-86f (3) and (4).* * Subdivision (3) allows evidence of the victim’s prior sexual conduct with the defendant on the issue of the victim’s consent when consent is raised as a defense. The evidence, however, must be relevant to whether the victim consented at the time of the assault. State v. Butler, 11 Conn. App. 673, 682, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987).

The defendant complains that the trial court’s ruling improperly deprived him of the opportunity to tell the jury about his prior dates with the victim. Even if we assume arguendo that sexual activity had taken place on those dates, it was necessary that the defendant, through his own testimony or otherwise, demonstrate this fact to the trial court and at the same time show how this activity led to the victim’s consent on the occasion in question. The defendant, however, failed to show that any prior sexual conduct whatsoever had taken place between himself and the victim. By no stretch of the imagination can the denials elicited by defense counsel be construed to be evidence of prior sexual conduct.

In determining whether to admit evidence pursuant to the statute, the trial court must weigh the prejudicial impact of the evidence against its probative value. State v. Rinaldi, 220 Conn. 345, 355, 599 A.2d 1 (1991). This determination is within the trial court’s sound discretion and will be reversed only where there is a manifest abuse of discretion or injustice appears to have been done. Id. Here, the trial court properly ruled that any probative value, afforded by a repetition of the victim’s denials before the jury, would be outweighed by its prejudicial value. “In light of the fact that . . . [the victim] only would have denied the allegations again if she were allowed to testify in front of the jury, it is difficult to perceive any justification for breaking down the barriers of the rape shield statute except to harass and embarrass [the victim] and confuse or mislead the jury.” State v. Williams, 20 Conn. App. 263, 270, 565 A.2d 1365 (1989). Moreover, a condition precedent to this exception is that the defendant raise a defense of consent. State v. Daniels, 8 Conn. App. 190, 194, 512 A.2d 936 (1986). In the present case, there was no evidence that the defendant intended to raise this defense.

Subdivision (4) of General Statutes § 54-86f allows admission of the victim’s prior sexual conduct if it is “otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” Such evidence “is admissible under this statute only if it fulfills the requirements of the statute that its probative value outweighs its prejudicial effect, within the context of the facts and circumstances of the case in which it arises.” (Internal quotation marks omitted.) State v. Christiano, supra, 645-46. The evidence may be excluded where its relevancy is so “slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” (Internal quotation marks omitted.) Id., 646. Here, however, there was no evidence of the claimed prior sexual conduct before the trial court. Accordingly, the trial court’s granting of the state’s motion in limine did not violate the defendant’s constitutional rights.

II

The defendant next claims that the trial court failed to voir dire a witness who came forward while the jury was deliberating and failed to make an in-court ruling relating to the witness’ claimed new evidence. The defendant, however, never made a motion of any type concerning the alleged newly discovered evidence, nor did he make an offer of proof upon which the trial court could base a ruling. “It is elementary that to appeal from the ruling of a trial court there must first be a ruling.” State v. Kim, 17 Conn. App. 156, 157, 550 A.2d 896 (1988). Without a motion, a hearing on the motion and ultimate findings or rulings of the trial court, there is no record for us to review. “[T]his court cannot review a nonexistent ruling.” Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 179, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991). It is the duty of the appellant to furnish this court with a proper appellate record. State v. Hoeplinger, 27 Conn. App. 643, 646-47, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person . . . .”

       General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       See footnote 2, supra.


text:
    C. Michael Budlong v. James H. Nadeau
    (10612)
    Lavery, Freedman and Schaller, Js.
    Argued November 4, 1992 —
    decision released January 19, 1993

      James H. Nadeau, pro se, the appellant (defendant).

      Kathleen A. Murrett, with whom was Steven R. Dembo, for the appellee (plaintiff).
   Lavery, J.

The pro se defendant appeals from the trial court’s judgment for the plaintiff following a jury trial on both the plaintiff’s action for libel and the defendant’s counterclaim for legal malpractice. The defendant claims that the trial court (1) improperly allowed the jury to consider evidence that was not referred to in the complaint, (2) improperly instructed the jury regarding a number of issues, and (3) generally deprived him of a fair trial. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In February, 1988, the defendant contacted the plaintiff to retain legal services in an action for dissolution of marriage. At the time the plaintiff began representing the defendant, a contempt motion against the defendant was pending due to an alimony arrearage owed by the defendant. The attorney-client relationship between the plaintiff and defendant began to deteriorate by the spring of 1988, when the defendant refused to follow the advice of the plaintiff regarding the contempt motion. The plaintiff notified the defendant that he would be withdrawing his appearance with regard to the contempt motion, and the defendant then filed a pro se appearance.

At a hearing on June 28, 1988, the defendant appeared pro se and agreed before the court to an arrangement whereby the attorney for the defendant’s wife would be a court-appointed trustee over certain of the defendant’s bank accounts to ensure the defendant’s payment of alimony to his wife. After that hearing, the defendant contacted the plaintiff and asked him to remain as his attorney in the divorce action. The plaintiff agreed to this, but the defendant soon decided that he was dissatisfied with the representation provided by the plaintiff. On or about October 31, 1988, he began picketing outside the judicial district courthouse at 95 Washington Street, Hartford, wearing a sandwich board that said in large letters: “Christopher Storm [the defendant’s wife’s attorney] is a liar and a thief C. Michael Budlong is helping him.” The defendant continued to picket the courthouse until jury selection began for this case in the trial court. The defendant’s car, which he would often park in front of the courthouse during this period, had signs taped to it that said, “Christopher Storm is a liar and a thief C. Michael Budlong is helping him” and “Honest Lawyer wanted to sue Igor Sikorsky and C. Michael Budlong for unethical law practice Call Jim Nadeau 951-8966.” The defendant also posted signs the size of business cards in the courthouse bearing the “Honest Lawyer” message, and an eight and one-half by eleven inch sign bearing similar allegations against the plaintiff.

Subsequent to the defendant’s commencing his picketing, the plaintiff filed and was granted a motion to withdraw his appearance for the defendant in the action for dissolution of marriage. The plaintiff then started an action against the defendant in libel, and the defendant filed a counterclaim for malpractice.

During the trial, the defendant failed to object at any time to the admission of evidence regarding the signs on his car, or to the admission of the business card signs. In fact, the defendant himself admitted into evidence, over the objection of the plaintiff, a sign that contained a number of allegations regarding Budlong and Sikorsky, and the message that was printed on the business card signs.

“Our rules of practice make it clear that counsel must object to a ruling of evidence, state the grounds upon which objection is made, and take exception to the ruling to preserve the grounds for appeal.” State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); Practice Book § 288. “Because the defendant failed to except to the trial court’s ruling and because the defendant does not seek review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); see Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988) (applying Evans rule to civil cases); we decline to review this claim.” Capitol Restorations Corporation v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 686-87, 596 A.2d 927 (1991).

As the defendant correctly points out, the business card signs and the car signs were not mentioned in the plaintiffs complaint. The complaint merely alleged that the defendant picketed the courthouse with a sign that said “Christopher Storm is a liar and a thief C. Michael Budlong is helping him” on October 31,1988, and particular dates in November of that year. Since the defendant failed, however, to object to offers of evidence beyond the scope of the complaint, he cannot now allege that the trial court improperly allowed the proffered evidence to go before the jury. “The trial court has broad discretion to determine both the relevancy and remoteness of evidence, and its rulings on evidentiary matters will be set aside on appeal only upon a showing of a clear abuse of discretion.” Henry v. Klein, 15 Conn. App. 496, 500, 545 A.2d 575 (1988). We find no such abuse of discretion by the trial court in this case.

The defendant next claims that the trial court improperly instructed the jury in several respects. Again, the defendant failed to preserve this issue properly for appeal. The defendant made no written request to charge, and took only a general exception to the jury instructions.* I*** “In order to preserve full appellate review of a jury charge assigned as error, an appellant must not only move to set aside the verdict; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988); but must also set forth, either in the motion itself, in supporting briefs, or in oral argument at a hearing held on the motion, each claim of error with sufficient specificity to enable the trial court to consider the claimed errors.” Cuartas v. Greenwich, 14 Conn. App. 370, 374, 540 A.2d 1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988). Since the defendant did not preserve his claim that the trial court improperly charged the jury, we are limited in our review to whether the trial court committed “plain error.” Practice Book § 4185.

Plain error “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Cuartas v. Greenwich, supra, 375. The trial court’s charge to the jury was detailed, comprehensible to a reasonable juror, and correct in law. The charge was not only free of plain error, it contained no error.

The defendant’s final claim is that the trial court did not conduct a “fair” trial. Specifically, the defendant claims that the court erred when it removed from the counsel table a person the defendant described as a hearing assistant. At the opening of the trial, the defendant requested that, because he has some difficulty hearing, he be allowed to have a friend repeat things said during the course of the trial, or write things down for him. The court, upon determining that the defendant had a hearing problem, allowed the assistant to sit with the defendant at the counsel table, provided that she follow strict guidelines. She was only permitted to repeat things to the defendant that were said in court, or write things down. On several occasions, the court admonished the defendant’s friend for coaching the defendant when the court overheard comments that were not mere repetitions of what was said. Eventually, the court ordered the assistant to leave the counsel table when she refused to heed its warnings. The court did not allow another assistant, noting that the defendant had abused the privilege of being allowed one.

The actions taken by the court were clearly within its discretion. “The trial court is vested with a large discretion over matters occurring in the conduct of the trial. While this is a judicial discretion and therefore subject to some degree of review and control, its exercise will not be interfered with unless it has been clearly abused to the manifest injury of a litigant.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 521, 370 A.2d 1306 (1976). “The control of the order of the courtroom is necessarily within the discretion of the trial court, and unless abused cannot be reviewed.” Antel v. Poli, 100 Conn. 64, 69, 123 A. 272 (1923). Here, the trial court acted in such a way as to prevent the unlicensed practice of law from occurring in its courtroom under the guise of hearing assistance. This action was properly within the trial court’s discretion.

The defendant has also raised general claims as to the fairness of his treatment by the trial court. “This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party.” Conservation Commission v. Price, 193 Conn. 414, 421 n.4, 479 A.2d 187 (1984). The trial judge in this case complied fully with the policy of our courts concerning pro se litigants. Our review of the trial transcript revealed that the court was solicitous, fair, and extremely patient throughout the course of the trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       On appeal, the defendant claims that the trial court improperly allowed the jury to consider evidence concerning the picketing after October 31, 1988, and the signs on the defendant’s car because those issues and supporting evidence were not mentioned in the plaintiff’s complaint. The defendant’s claim is considered in this opinion.

       The defendant himself offered the larger sign into evidence, and it was admitted.

       A review of the trial transcript for August 13, 1991, reveals that the court directly asked the defendant if he had any objection to the admission of evidence regarding the signs on the car and the business card sized signs. Each time the defendant said, “No.”

       We note that in the last sentence of the defendant’s brief State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), is apparently mentioned. That sentence says, “Defendant was deprived of his Constitutional Right to a fair trial, and all errors, under Evans, are plain and harmful.” The defendant is probably referring to the State v. Evans we cited above, regarding review-ability of unpreserved claims, but we are not certain of this because of the citation form used. This reference to Evans is also located in a section of the defendant’s brief that discusses only his claim that he was deprived of a fair trial. We review that claim later in this opinion. Finally, a claim that is stated but not briefed is deemed abandoned. State v. Tanzella, 28 Conn. App. 581, 602, 613 A.2d 825 (1992). The plaintiff did not properly brief an Evans claim in any part of the brief; therefore, we are not compelled to determine reviewability under Evans.

       At trial, after the court gave the defendant a detailed explanation of the jury instruction process, and the respective rights of the parties’ during that process, the following exchange occurred:
      “The Court: Do you have any exceptions to the charge that I gave? . . . I mean, you’ve got to tell me, to preserve this for appeal, you’ve got to say, this is what you did wrong, this is what you should have done. And I ask you to do it now.
      “Mr. Nadeau: And then I say — I say I have an exception?
      “The Court: Sure. I’ll give you an exception. . . . Anything else you wish to say, sir?
      “Mr. Nadeau: I’ll leave it up to you, Your Honor.”

        In Schaffer v. Schaffer, 187 Conn. 224, 227-28 n.3, 445 A.2d 589 (1982), our Supreme Court said: “Although as a general matter the rules of evidence and of the court are to be liberally applied to pro se litigants, we cannot go so far as to ignore entirely the requirement that a party’s claims must first be presented to the trial court before they may be reviewed on appeal.” This principle applies to the defendant’s claims regarding evidence and the jury instructions in this case.

         We note that our review of the transcript reveals that the defendant did not seem any less aware of what was being said and what was transpiring in the courtroom after the removal of his assistant. We also note that on numerous occasions during the course of the trial the court asked the defendant if he heard and understood what was being said, and asked opposing counsel and witnesses to speak loudly and clearly so that the defendant could hear them.


author: Foti, J.

text:
    State of Connecticut v. William Hamilton, Jr.
    (10692)
    Foti, Landaü and Fkeedman, Js.
    Argued November 3, 1992 —
    decision released January 19, 1993

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). The defendant was committed to the custody of the commissioner of correction for a total effective sentence of thirty-five years. He received twenty year concurrent sentences for the robbery and burglary convictions, a ten year consecutive sentence for the attempted assault conviction, and a five year consecutive sentence for carrying a pistol without a permit.

On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction for the offense of carrying a pistol without a permit, (2) the trial court improperly instructed the jury on the offense of carrying a pistol without a permit by failing to define an essential element of the crime, (3) the evidence was insufficient to sustain a conviction for the offense of attempted assault in the first degree, and (4) the trial court improperly denied his request for a continuance. We reverse the judgment of the trial court in part and affirm it in part.

The jury could reasonably have found the following facts. On July 19, 1990, between 10 p.m. and 10:30 p.m., nineteen year old Michael DelGais, Jr., was in the backyard swimming pool at his family home in Bridgeport, with his teenage friends, Cynthia Stone, Ila Swinton and Robin Posey, when the defendant walked up to the pool holding a gun that was shorter than one foot in length. After asking Michael who was in the house and determining that other family members were inside, the defendant ordered the teenagers into the house at gunpoint. He walked the group through the kitchen into the living room and ordered the young women to sit down, while he took Michael to the foot of the stairs to call his father. Michael did so and, hearing alarm in his son’s voice, Michael DelGais, Sr., came out of his bedroom and started down the stairs. As the father saw the defendant holding a gun and standing next to his son at the foot of the stairs, Michael, Jr., told his father that the defendant wanted money. Michael, Sr., then jumped back and hit the panic button on his home security alarm. As the alarm sounded and the defendant started coming up the stairs, Christopher DelGais, a younger brother of Michael, Jr., came out of his bedroom but was shoved back into the room by his father. Another brother, Gerry, opened his bedroom door, looked out, and saw the defendant raise the gun. Gerry ducked back into his room, as the defendant fired the gun up the stairway. The bullet lodged in the ceiling of the upstairs landing. After the shot was fired, the young women who had been seated in the living room ran out into the yard and hid near a shed. The defendant then went upstairs and pointed the gun at Michael DelGais, Sr., who told him not to fire it again, that he would get what the defendant wanted. The elder DelGais then proceeded at gunpoint to his bedroom, took $900 of “vacation money” off a dresser and gave it to the defendant. The defendant kept the gun pointed at Michael, Sr.’s chest while they were in the bedroom.

The defendant, who was masked, removed his mask when he came to the top of the stairs. Michael, Sr., got a good look at him and was able to make a positive identification of the defendant at both a photographic lineup and a courtroom identification.

I

The defendant first claims that the evidence was insufficient to sustain his conviction on the charge of carrying a pistol without a permit. While the defendant may have conceded at trial that the state had presented a prima facie case on the charge of carrying a pistol without a permit, he did not concede that the state had proven each and every essential element of that crime beyond a reasonable doubt. The defendant did not raise the issue of whether the state failed to prove that the weapon fell within the aegis of General Statutes § 29-27; he neither made a specific request to charge nor excepted to that portion of the charge. We nevertheless will review this claim because “there is abundant authority that states that claims of insufficiency of the evidence fall within the ameliorative penumbra of State v. Golding, [213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)]; see State v. Aleksiewicz, 20 Conn. App. 643, 645 n.1, 569 A.2d 567(1990). . . .” State v. Estrada, 26 Conn. App. 641, 659, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992).

“When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).” State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.

The defendant specifically claims that the evidence was insufficient to establish the essential element of the barrel length of the gun and, therefore, the jury had to resort to speculation and conjecture in finding him guilty of possessing a pistol without a permit. We do not agree.

A jury may draw reasonable, logical inferences from the facts proven, but may not resort to speculation and conjecture. State v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986). The state does not dispute that General Statutes § 29-27, which expressly defines a pistol or revolver as “any firearm having a barrel of less than twelve inches in length,” applies to a charge under General Statutes § 29-35, which defines the crime of carrying a pistol without a permit. The state also does not dispute that the length of the barrel is, therefore, an element of that crime and must be proven beyond a reasonable doubt. The sole question is whether the evidence was sufficient for the jury reasonably to conclude that the gun carried by the defendant had a barrel of less than twelve inches in length.

Our review of the record shows that the weapon used in the commission of these crimes was never located, so it was never introduced as an exhibit at trial. While no witness could testify as to the exact length of the barrel, two witnesses, Swinton and Stone, testified that the weapon itself was shorter than one foot. It is a matter of common knowledge that one foot is the same as twelve inches, and that a part is less than the whole. In State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977), the description of a gun as “a short one, which 'didn’t have a long barrel’ ” was not sufficiently probative evidence “upon which the jury could find the barrel of the firearm was in fact less than twelve inches in length.” In the present case, however, the jury could reasonably have concluded, on the basis of the testimony of the two witnesses, that the gun itself was less than twelve inches in length, and therefore the barrel, a part of the gun, was also less than twelve inches in length. We thus conclude that there was legally sufficient evidence presented at trial for the jury to find the defendant guilty of carrying a pistol without a permit.

II

The defendant’s second claim is that the trial court improperly instructed the jury by failing to define an essential element of the offense of carrying a pistol without a permit. We agree.

The state does not dispute, and we agree, that the definition of “pistol” contained in § 29-27 applies to a charge under § 29-35, and that the length of the barrel is an element of the crime. State v. Allen, 205 Conn. 370, 374, 533 A.2d 559 (1987); State v. Brown, supra. The state also agrees that failure to charge on an essential element of a crime is a constitutional defect. State v. Tweedy, 219 Conn. 489, 510-11, 594 A.2d 906 (1991); State v. Golding, supra, 238.

Our review of the jury instructions indicates that the court never defined the term “pistol” as specified in § 29-27. The court did not in any fashion, directly or by implication, inform the jury that in order to find the defendant guilty of carrying a pistol without a permit, it was required to find proven beyond a reasonable doubt that the weapon that the defendant carried had a barrel length of less than twelve inches.

The defendant did not object to the jury charge when given but now seeks review under Evans-Golding and under the plain error doctrine of Practice Book § 4185. The state argues that this claim is not reviewable because the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The state further argues that even if the jury charge was deficient as the defendant claims, the deficiency was harmless beyond a reasonable doubt. We disagree with the state’s position.

“A party is entitled to plain error review of an unpreserved claim in ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). An important factor to consider when determining if plain error review is necessary is whether the claimed error resulted in an unreliable verdict or a miscarriage of justice.” State v. Hopes, 26 Conn. App. 367, 373, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We conclude that the trial court’s failure to charge on an essential element of the crime affected the fundamental fairness of the trial and caused the defendant to suffer a manifest injustice. See State v. Knight, 29 Conn. App. 675, 617 A.2d 913 (1992). While we agree with the state that a defendant is entitled to a fair trial, not a perfect one; State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982); we do not agree that since the defendant’s sole defense was that he did not commit the crime, the only issue before the jury was whether there was a misidentification, and that “[cjommon sense dictates that [the jury’s] concern was limited to the single issue of identification.” It therefore follows that we do not agree with the state that “it is clear beyond chance that the instructional deletion was harmless well beyond a reasonable doubt.”

It is the state’s burden to prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990); State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989). A jury’s verdict finding an accused guilty of a crime necessarily includes a determination that the state has proven all the elements of that crime beyond a reasonable doubt. State v. Carpenter, supra, 85. Such a verdict cannot be upheld unless the jury had a proper instruction from the court as to the law, which must include an identification of each and every essential element for which the state has the burden of proof beyond a reasonable doubt. Without such a basic instruction, we cannot conclude that the jury acted in a fair manner.

The state contends that, even if the trial court had properly instructed the jury, the result here would have been the same; it argues that it “would stretch imagination beyond its tensile strength to believe that this jury in this factual milieu even considered any element of any crime.” This argument must fail. Taken to its extreme, it implies that we may completely eliminate the court’s instructions to the jury and allow the jury to determine guilt or innocence solely on the facts, without application of the controlling principles of law.

The state further argues that “assuming no serious dispute on the subordinate fact [the requirement that the barrel be less than twelve inches] the issue becomes whether the failure of the court to so charge raises a fundamental constitutional question that the ameliorative effect of the harmless error doctrine should not be considered.” The state directs our attention to the majority opinion of the United States Supreme Court in Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), in which the court held for the first time that a coerced confession could be subject to a harmless error analysis. The state posits that Fulminante “may well be a harbinger of an exponential expansion of the [harmless error] rule into areas heretofore considered sacred ground.” The state asks us to focus “on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” We do not agree. We do not consider this to be an “immaterial” error.

We have previously addressed the situation where the trial court gave no instruction on an essential element rather than a defective instruction. State v. Payne, 12 Conn. App. 408, 530 A.2d 1110 (1987). We declined, in Payne, to apply a harmless error analysis, because we concluded that “the complete omission of any instruction [on an essential element of the crime] . . . guaranteed that the jury was unable to perform its task properly.” Id., 414. In declining to apply a harmless error analysis to that type of instructional error, we recognized “that in Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967), the United States Supreme Court rejected the notion that all federal constitutional errors necessarily require reversal of criminal convictions. In [Chapman], the court set forth the principle that a constitutional error may be held to be harmless if the reviewing court concludes that it was harmless beyond a reasonable doubt. In Chapman, however . . . the court also recognized that some constitutional errors can never be treated as harmless. Some errors are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case. . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Payne, supra, 414-15.

In Payne, we concluded “that the total failure . . . to instruct on the essential elements of the crime charged is analogous to a directed verdict. . . . [This] failure . . . effectively deprived the jury of the opportunity to consider whether those elements were proven. The defendant, however, had elected a trial by jury and was entitled to have that entity apply the substantive law to the facts of the case.” Id., 415-16. We further noted that in Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 175 (6th Cir. 1986), the Court of Appeals for the Sixth Circuit concluded as we did that a trial court’s failure to instruct on an essential element of an offense is an error to which harmless error analysis does not apply. State v. Payne, supra, 416.

We find the rationale of Payne and Hoover applicable here, as well, where the trial court failed to instruct the jury that in order to find the defendant guilty of carrying a pistol without a permit it must specifically find that the defendant had carried upon his person a firearm having a barrel less than twelve inches in length. The omission of any instruction on the barrel length of the weapon deprived the jury of the ability to perform its task properly. State v. Payne, supra, 414. Therefore, the defendant’s conviction for carrying a pistol -without a permit may not stand.

III

The defendant’s third claim is that the evidence was insufficient to sustain a conviction for the offense of attempted assault in the first degree because there was no evidence to support a reasonable inference that he either intended to cause serious physical injury to Gerry DelGais or attempted to cause such injury by taking a substantial step toward accomplishing that objective. The defendant asserts that “there is no evidence to link what may well be the reckless discharge of a shot up the stairwell and into the ceiling of the DelGais’ second floor landing with the intentional action necessary to constitute an attempted first degree assault of Gerry DelGais.” We do not agree.

We earlier set forth the standards for appellate review of a sufficiency of the evidence claim in part I of this opinion. “Intent may be inferred from the conduct of the accused. State v. Carpenter, [supra, 82]; State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). Ordinarily, the intent of the actor is a question for the trier of fact. State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).” State v. Woods, 25 Conn. App. 275, 281, 594 A.2d 481, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). Generally, intent can be proved only by circumstantial evidence. State v. Carpenter, supra. The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Patterson, 213 Conn. 708, 721-22, 570 A.2d 174 (1990). “It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used . . . and the events leading up to and immediately following the incident.” State v. Allen, 28 Conn. App. 81, 89-90, 611 A.2d 886 (1992).

The defendant, armed with a gun, and in the process of committing a felony, raised the gun, pointed it at Gerry DelGais and fired it up a stairway. The shot missed Gerry, who was at the top of the stairs and facing the defendant before he ducked back into his room after seeing a masked intruder with a weapon. On the basis of these facts, the jury legally and rationally could have inferred that the defendant intended to cause serious physical injury by putting a bullet into Gerry Del-Gais rather than into the ceiling where it lodged. “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

“To constitute a substantial step, the conduct must be strongly corroborative of the actor’s criminal purpose.” (Internal quotation marks omitted.) State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). “What constitutes a ‘substantial step’ in any given case is a question of fact.” Id., 277. The defendant’s overt acts, as discussed earlier, clearly and convincingly demonstrate his firm purpose to commit the crime of attempted assault in the first degree. Our review of the record satisfies us that “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

IV

The defendant’s remaining claim concerns his contention that the trial court’s denial of his request for a continuance constituted an abuse of discretion and violated his constitutional rights to due process under the sixth and fourteenth amendments to the United States constitution and article first, § 8, as amended, of the Connecticut constitution.

The following facts are pertinent to this claim. A special public defender was appointed on October 30,1990, to represent the defendant. The record discloses no attempt to substitute counsel between that date and August 1,1991, when trial began. The defendant, who was seventeen years old at that time and not free on bond, had his father, who was present, appointed as guardian, and the jury selection process began. Following the luncheon recess, the defendant’s father failed to return to court. After it was determined that efforts to reach the defendant’s father were unsuccessful, the court then summoned a family relations officer and appointed her guardian ad litem for that day. Jury selection was completed that same day and the matter was continued for the taking of evidence on August 5, 1991.

The defendant’s father again failed to appear on August 5, so the court appointed a second family relations officer as the defendant’s guardian ad litem for purposes of the trial. The defendant’s counsel then sought a continuance because the defendant had told him that his cousin, Jimmy Cooper, had an appointment that morning with a local attorney whom the defendant hoped to retain as private counsel. The court was informed that the public defender’s office had verified this by calling Cooper and obtaining the name of the attorney being contacted. The court recessed in an attempt to get that attorney into court, and determined that although the defendant’s cousin indeed had an appointment that morning, the attorney in question had canceled the appointment. The court also determined that Cooper was a landscaper who had been represented by that attorney in the past, and that the attorney’s schedule might make it difficult for him to handle the defendant’s case.

The court denied the defendant’s request for a continuance, stating: “You have a question of continuance for the purpose of counsel. And the only viable, articulable fact that you can point to whatsoever, is a phone call from a person named Cooper to the office of Gulash. The rest of the information clearly demonstrates to the court that this accused is under bond for a case he has previously been convicted of. I learn now he is under a sentence of twenty-five years. He has a bond in this case which has never been posted. [H]e has consulted with [private counsel] at the outset of his difficulties and has seen fit not to retain him. There is no indication there is any ability to do so. No representations have been made to that other than Cooper has money but it would be for me to find out and for them to know. Well, this court does not have to go to that burden. The burden is on the defendant to demonstrate an ability. That not being demonstrated in this court on behalf of this application, the court finds no reasonable basis for this court to take this jury, which has been selected and returned here for duty and put them on a shelf and to close down a court of this state on the bold assertion that somebody named Cooper may or may not get a lawyer for the accused. No indication presently [is] obtainable from the lawyer that he is even available to take it on, never mind whether or not compensation required could be met by the parties. It is not a reasonable expectation on this court’s [part]. I could not conclude that that is a reasonable request.”

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion.” State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). “Every reasonable presumption will be made in favor of the trial court’s proper exercise of its discretion. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985).” State v. Graham, 21 Conn. App. 688, 703, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990). “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of trial.” Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). There is no mechanical test for determining whether the denial of a continuance constitutes an abuse of discretion. A reviewing court “must consider the particular circumstances of each case, paying special attention to the reasons presented to the trial court at the time the request was denied.” Statewide Grievance Committee v. Friedland, 222 Conn. 131, 142, 609 A.2d 645 (1992).

We are aware that the trial court’s discretion in granting or denying a request for a continuance should be exercised to accomplish the ends of substantial justice. State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976). We are also aware, however, that “[t]o establish an abuse of discretion, the defendant must show that denial of the continuance demonstrably prejudiced his ability to defend himself. State v. Beckenbach, [supra, 52]; State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46 (1985); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985).” State v. Jones, 22 Conn. App. 303, 306, 577 A.2d 293 (1990).

During oral argument, the defendant argued that the denial of his request for a continuance was an abuse of discretion because it deprived him of his right to an attorney of his choice under the sixth amendment to the United States constitution.

“It is clear that a defendant in a criminal matter has a constitutional right to the effective assistance of counsel. . . . The right to counsel, however, does not include . . . an unlimited opportunity to obtain alternate counsel ... or the absolute right to counsel of one’s choice that must give way to the need for fair and efficient administration of justice.” (Citations omitted.) Id., 306-307.

“It is well established that the sixth amendment right to counsel is a right to effective assistance of counsel, whether that counsel is privately retained or court-appointed. . . . The standard used to review claims of ineffective assistance of counsel is whether defense counsel’s performance [was] reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . The defendant, however, has the burden to show that his counsel’s conduct fell below that standard and that the lack of competency contributed to the conviction.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983). In order to evaluate the competency of the defense and the harmfulness of any incompetency, an evidentiary hearing is required. Id., 65.

We find no abuse of discretion in the trial court’s refusal to grant the defendant’s request for a continuance. The defendant has shown no specific prejudice to his defense as a result of this denial. There was no claim that counsel of record was unprepared to go forward. The defendant at no time claimed ineffective assistance of counsel. The court could not be assured that new counsel would be representing the defendant at this trial, which had already begun with counsel of record who had been representing the defendant for over nine months. Further, since the defendant did not request a specific date for a continuance, the court was unable to determine not only if, but also when, alternate counsel would be available, “thereby making the request for a continuance one for an unspecified duration.” State v. Jones, supra, 307.

The defendant has failed to show that the denial of his request for a continuance demonstrably prejudiced his ability to defend himself. We find no abuse of discretion.

The judgment is reversed as to the conviction for carrying a pistol without a permit only and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

       The defendant’s only claim on this issue relates to the length of the barrel. We therefore find it unnecessary to review the record for the sufficiency of evidence dealing with other elements of this crime.

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

       Practice Book § 4185 provides in pertinent part: “This court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       In Fulminante, the confession obtained by coercion was found not to be harmless error.

       In Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), the United States Supreme Court noted its adoption of the general rule in Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 241 (1967), that a constitutional error does not automatically require reversal of a conviction. The rule has allowed that court to apply harmless error analysis to a wide range of errors. In Fulminante, however, the court drew a sharp distinction between those cases involving “trial error” and those involving “structural defects.” “The common thread connecting these cases [where harmless error analysis has been applied to a constitutional error] is that each involved ‘trial error’ — error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Arizona v. Fulminante, supra, 1264. Other constitutional violations, not subject to harmless error analysis, are “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Id., 1265. Such a violation is not “simply an error in the trial process itself,” but is a “structural defect affecting the framework within which the trial proceeds . . . .” Id. Because the failure to instruct on an essential element of the crime charged undermines the basic function of the jury, we perceive that, in the language of Fulminante, it is not simply a “trial error,” but rather a “structural defect.”


author: Schaller, J.

text:
    Diana Klug v. Inland Wetlands Commission of the City of Torrington et al.
    (11080)
    (11081)
    Lavery, Heiman and Schaller, Js.
    Argued November 3, 1992 —
    decision released January 19, 1993

      Albert G. Vasko, corporation counsel, for the appellant (named defendant).

      Charles E. Roraback, for the appellant (defendant Eugene F. Green).

      John R. Logan, with whom, on the brief, was Mark T. Johnson, for the appellee (plaintiff).
   Schaller, J.

The defendants, Eugene F. Green and the Torrington Inland Wetlands Commission (commission), appeal from the judgment of the trial court sustaining the plaintiff’s appeal from a decision of the commission. The dispositive issues are (1) whether the plaintiff was entitled to party status before the commission under General Statutes §§ 4-166 (8) and 4-177a of the Uniform Administrative Procedure Act (UAPA), and (2) whether the commission was required to hold a new public hearing upon remand from the previous trial court decision concerning this matter. We hold that the UAPA does not apply to proceedings before the commission, and, further, that the commission was not required to conduct an additional public hearing in order to comply with General Statutes § 22a-41.* * We, therefore, remand this case to the trial court with direction to remand to the commission for further proceedings in order to comply with the directive of § 22a-41.

The facts, which are essentially undisputed, involve an earlier appeal to this court as well as several proceedings before the commission. Klug v. Inland Wetlands Commission, 19 Conn. App. 713, 563 A.2d 755 (1989) (hereinafter Klug I). In November, 1987, Eugene F. Green applied to the commission for a permit to conduct certain regulated activities in a wetlands area in Torrington. On March 22,1988, after a public hearing, the commission granted Green’s application and published notice of its decision in a local newspaper. In April, 1988, the plaintiff, an abutting landowner, appealed from the commission’s decision to the trial court, naming and serving as defendants the commission and the state department of environmental protection. That appeal was taken pursuant to General Statutes (Rev. to 1987) § 22a-43, as amended by Public Acts 1987, No. 87-338, which governed the appeal to the Superior Court.

The commission moved to dismiss the plaintiff’s appeal for lack of subject matter jurisdiction, on the basis of her failure to name and serve Green as a defendant. The court dismissed the plaintiff’s appeal, and the first appeal to this court followed. We held that the trial court improperly ruled that General Statutes § 4-183, rather than § 22a-43, governed the plaintiff’s appeal. Klug I, supra. We further held that a UAPA agency is statutorily defined as a state agency, concluding that the commission was a local agency not acting as an agent of the state when it granted the challenged permit. Id.

Thereafter, the trial court, Moraghan, J., heard the case on remand and, by decision dated September 4, 1990, rendered judgment remanding the application to the commission for “further proceedings addressing each and every one of the criteria in terms of declaring a finding on the mandate of no feasible and prudent alternative in accordance with § 22a-41 (b) of the General Statutes.” After Judge Moraghan’s remand, the commission held several meetings at which it discussed the Green application. At the meeting on December 18,1990, the plaintiff presented several petitions to the commission, including a petition for party status made pursuant to General Statutes §§4-166 (8) and 4-177a (a) and a petition for permission to present additional evidence. The commission did not act as a whole on the petitions or on the matter of whether a new public hearing should be held. The chair of the commission indicated, however, that the commission declined to entertain the Klug petitions, neither granting nor denying them. Acting on the advice of its counsel that the commission was not empowered to hold a further public hearing on the matter, the chair further indicated that the commission would not take any additional evidence on the Green application.

On March 27, 1991, the commission granted the Green application in part and denied it in part. Regarding the portions of the application that were granted, the commission indicated that “no prudent and feasible alternatives” exist. The commission, however, neither specified the reasons for those findings nor addressed the criteria specified in § 22a-41, as ordered by Judge Moraghan. The decision of March 27, 1991, was appealed to the Superior Court pursuant to the provisions of §§ 22a-43 and 4-183.

On appeal, the trial court, Pickett, J., rendered judgment in the plaintiff’s favor, holding that the commission acted illegally, arbitrarily, and in abuse of its discretion (1) in failing to grant the plaintiff party status or to consider the petitions that she had filed, and (2) in failing to hold a public hearing as it understood Judge Moraghan had directed on September 4, 1992. This appeal followed.

The defendants raise two principal claims in this appeal: (1) that the trial court improperly held that the commission should have granted party status to the plaintiff pursuant to General Statutes §§ 4-166 (8) and 4-177a (a); and (2) that the trial court improperly found that, on remand following Judge Moraghan’s decision, the commission was required to hold a new public hearing. We find the defendants’ arguments persuasive.

I

The defendants correctly assert that the UAPA does not govern procedures before an inland wetlands commission. Rather the UAPA applies only to appealsjrom the commission to the Superior Court. As such, the plaintiff was not entitled to party status pursuant to §§ 4-166 (8) and 4-177a of the UAPA.

We are mindful that in analyzing legislative action our goal is to “ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). In doing so, “[w]e look first to the plain, unambiguous language of the statute.” Arway v. Bloom, 29 Conn. App. 469, 473, 615 A.2d 1075 (1992), citing Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Absent any ambiguity, we cannot properly engage in an analysis of the history underlying a governing statute. Arway v. Bloom, supra.

In this case, the relevant language of the Inland Wetlands Act then in effect is plain and unambiguous. General Statutes (Rev. to 1987) § 22a-43 (a), as amended by Public Acts 1987, No. 87-338, provides in pertinent part that “any person owning or occupying land which abuts any portion of land . . . involved in any regulation, order, decision or action made pursuant to [the Inland Wetlands Act] may appeal to the superior court ... in accordance with the provisions of section 4-183.” This language on its face indicates that the legislature intended to do no more than provide a procedural framework for appeals taken from the commission to the Superior Court. A plain reading of that statutory language leaves no room for doubt as to this limited legislative purpose.

Indeed, in Klug I, supra, we held that the commission was a local board and not subject to the provisions of the UAPA. Although the legislature has amended § 4-183 since our decision in Klug I, supra, this change does not affect the issue of whether the UAPA governs the commission’s actions prior to an appeal to the Superior Court. While expanding its application to all appeals from the commission rather than merely to “contested cases,” the amendment to § 4-183 did not operate to make the UAPA applicable to proceedings of the commission itself. In short, we conclude that the plain and unambiguous language of § 22a-43 (a) governs, not proceedings before the commission, but rather appeals from the commission to the Superior Court. The trial court, therefore, improperly determined that the plaintiff was entitled to party status before the commission.

II

The defendants next claim that the trial court, Pickett, J., improperly interpreted Judge Moraghan’s prior remand order as requiring the commission to conduct a public hearing. We agree with this contention.

The following additional aspects of the record are relevant to the disposition of this claim. As noted above, the record reveals that Judge Moraghan ordered “the application . . . remanded to the commission for further proceedings addressing each and every one of the criteria in terms of declaring a finding on the mandate of no feasible and prudent alternative in accordance with § 22a-41 (b) of the General Statutes.” Earlier in his decision, Judge Moraghan indicated that “[t]his court is satisfied that a commission is obligated to make a finding with regard to ‘feasible and prudent alternatives.’ ” The court further noted that “[a] review of the record discloses that while alternatives to certain aspects of the regulated activities were considered by the commission, the commission failed to make the ‘no feasible and prudent alternative’ finding as required by the statute. This court is constrained by the commission’s failure to make the subject finding to order a remand/or that specific purpose.” (Emphasis added.) See A.D.A.M. Land Development Corporation v. Conservation Commission, 21 Conn. App. 122, 572 A.2d 364 (1990). Judge Moraghan further observed that “a commission is obligated to make a finding with regard to ‘feasible and prudent alternatives.’ ”

Our interpretation of Judge Moraghan’s remand order must comport with established guidelines for the interpretation of judgments. As an issue of law, “ ‘[t]he interpretation of a judgment may involve the circumstances surrounding the making of the judgment.’ ” Nauss v. Pinkes, 2 Conn App. 400, 411, 480 A.2d 568, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). “The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Citations omitted; internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985). Mindful of these principles, we do not read Judge Moraghan’s remand order as requiring the commission to conduct an additional public hearing.

In this case, the commission had already conducted a public hearing, at which time citizens, including the plaintiff, were afforded an opportunity to be heard. Upon this hearing, the commission rendered its decision by granting the disputed application. As Judge Moraghan made clear in his decision, the commission “considered” alternatives to the regulated activities. The agency granted the application, however, without expressly stating its findings as to prudent and feasible alternatives. General Statutes § 22a-41. It was this deficiency that Judge Moraghan sought to rectify when ordering the case remanded to the commission. His order is devoid of any reference to the need for an additional public hearing in order for the commission to comply with § 22a-41.

Established definitions of the term “proceeding” also bear out this interpretation of Judge Moraghan’s remand order. For example, Black’s Law Dictionary defines “proceeding” as, inter alia, “any action, hearing, investigation, inquest or inquiry (whether conducted by a court, administrative agency ... or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given.” This definition is premised on the notion that “hearing” is a subset of “proceeding.” Thus, the plaintiff’s claim that “proceeding” and “hearing” are synonymous is without merit.

Moreover, the applicable enabling statute makes clear that for each application the commission may only conduct one public hearing. General Statutes § 22a-39. “ ‘An administrative agency can act only within the bounds of authority granted to it by its enabling statute and within constitutional limitations. It is wholly without power to modify, dilute or change in any way the statutory provisions from which it derives its authority . . . .’ Goldberg v. Insurance Department, 9 Conn. App. 622, 626, 520 A.2d 1038 (1987).” Nelseco Navigation Co. v. Department of Liquor Control, 27 Conn. App. 614, 620, 608 A.2d 707 (1992). Here, § 22a-39 provides that “[t]he commissioner shall . . . [cjonduct a public hearing . . . .” (Emphasis added.) There is no provision in the Inland Wetlands Act that authorizes multiple public hearings for a single application.

Our Supreme Court’s interpretation of similar enabling statutes supports this reading of § 22a-39. For instance, in Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 452-54, 440 A.2d 163 (1981), the court addressed the public hearing provision of General Statutes § 8-26, which governs the approval of subdivisions. This statute provided, inter alia, that “the commission may hold a public hearing regarding any subdivision proposal . . . .” (Emphasis added.) The court specifically stated that “§ 8-26 does not authorize multiple public hearings in connection with a single subdivision proposal.” Id. We do not interpret Judge Moraghan’s decision as suggesting that the commission conduct itself in such a way as to exceed the scope of the enabling statute. The remand order simply requested the commission to articulate its findings regarding the issue of feasible and prudent alternatives.

We conclude that the trial court, Pickett, J., misinterpreted Judge Moraghan’s remand order when ordering the commission to conduct a second public hearing. Judge Moraghan’s order appropriately remanded the case to the commission for an articulation of its basis for granting Green’s application in accordance with § 22a-41.

The judgment sustaining the plaintiffs appeal is reversed and the case is remanded to the trial court with direction to render judgment remanding the case to the commission for further proceedings consistent with this opinion in order to comply with the directive of General Statutes § 22a-41.

In this opinion the other judges concurred.

       General Statutes § 4-166 (8) provides in pertinent part: “ ‘Party’ means each person . . . (C) who is granted status as a party under subsection (a) of section 4-177a.”

       General Statutes § 4-177a provides in pertinent part: “(a) The presiding officer shall grant a person status as a party in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least five days before the date of hearing; and (2) the petition states facts that demonstrate that the petitioner’s legal rights, duties or privileges shall be specifically affected by the agency’s decision in the contested case.”

       General Statutes § 22a-41 provides: “(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to . . . licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.
      “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       General Statutes (Rev. to 1987) § 22a-43, as amended by Public Acts 1987, No. 87-338, provides in pertinent part: “(a) . . . any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court ... in accordance with the provisions of section 4-183 . . . .” (Emphasis added.) We are aware that this provision was amended in 1991 to, inter alia, eliminate the language, “in accordance with the provisions of section 4-183.” Public Acts 1991, No. 91-13b. We decline, however, to apply the amended version of § 22a-43 (a) retroactively. Enfield Federal Savings & Loan Assn. v. Bissel, 184 Conn. 569, 571, 440 A.2d 220 (1981). In any event, a retroactive application of the amended § 22a-43 (a) would not alter the outcome in this case.

       See also Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 574, 538 A.2d 1039 (1988) (“the [zoning] commission, in conducting multiple hearings, did not ‘[act] within [its] prescribed legislative powers’ ”), quoting Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983).