author: Freedman, J. Lavery, J.,

text:
    State of Connecticut v. Charles Anderson
    (10039)
    Daly, La very and Freedman, Js.

      Argued May 11
    decision released September 1, 1992

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and two counts of the crime of carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court (1) improperly instructed the jury regarding self-defense, and (2) made a series of improper interrelated rulings that had the cumulative effect of depriving the defendant of his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning hours of March 21, 1990, the victim was involved in a craps game with the defendant and another individual, “Cat” Bunkley, at the defendant’s apartment in Hartford. The game ended at approximately 2 a.m. when the victim had won approximately $1100 from the defendant and Bunkley. At that time, there was a discussion between the defendant and the victim about the return of some money to the defendant, which he claimed the victim owed to him for a loan made approximately one year earlier. The victim refused to give the defendant any money, but stated that he would “see what [he could] do.” The victim then decided to return to his apartment, which was directly across the street, to count his winnings.

On his way out of the apartment building, the victim stopped by the apartment of some friends, William and Kenneth Stewart, and told them about his winnings and asked them to escort him across the street to his apartment. The three left the Stewarts’ apartment, and were accompanied across the street by the defendant and Bunkley. While they walked, one of the Stewarts heard the defendant ask the victim, “Do you have anything for me?”

When the group reached the victim’s apartment, the victim and the Stewarts entered through a door that opened into the kitchen. They closed the door behind them, leaving the defendant and Bunkley in the hall. The victim began counting his cash when the defendant knocked on the door. When the victim opened the door, the defendant asked for money from the victim, who advised the defendant to wait until he finished counting his winnings and then closed the door. The defendant then knocked on the door again. The victim opened the door a second time and told the defendant to wait, and when the victim tried to close the door again, the defendant stuck his foot in the threshold to prevent the victim from closing it.

At this time, the victim moved toward one side of the kitchen to light a cigarette over the stove, which was near the doorway in which the defendant was then standing. As he did so, the defendant pulled out a pistol and shot the victim in the right shoulder. The defendant then left the scene.

The defendant first claims that the trial court improperly instructed the jury on the law applicable to his self-defense claim. Specifically, he claims that in instructing the jury on self-defense pursuant to General Statutes § 53a-19, the trial court improperly stated that the “reasonable force” to be evaluated by the jury “is that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more.” (Emphasis added.) In other words, this portion of the charge given by the trial court instructed the jury to evaluate the defendant’s use of force strictly on an objective basis. The defendant argues that this definition of reasonable force impermissibly replaced the subjective-objective standard required by § 53a-19 and, therefore, deprived the defendant of his constitutional right to have his jury properly instructed.

The defendant has not properly preserved this claim for appellate review. He seeks review, however, under the well established principles for reviewability of unpreserved constitutional claims as set forth in State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989), because his fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn. App. 624, 632-33, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). On the basis of State v. Williams, 25 Conn. App. 456, 462, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991), we conclude that the defendant cannot prevail on this claim because the court’s instruction, although containing an incorrect statement of the law, was harmless beyond a reasonable doubt.

In Williams, the defendant challenged the following language of the trial court’s instruction on self-defense: “ ‘[Reasonable force’ . . . ‘is the amount of force that would be used by an average person of ordinary intelligence, acting under the same circumstances.’ ” Id., 463. As the state concedes in its brief, an instruction on self-defense that fails to instruct the jury to evaluate the defendant’s use of force on a subjective-objective basis, such as the challenged instruction here and that given in Williams, is an incorrect statement of the law under § 53a-19. Section 53a-19 requires that the jury evaluate, among other things, the perception of the danger that the defendant faced and his use of force in response to that perceived danger. “Where, as here, the improper instruction is of constitutional dimension, the test is whether it is reasonably possible that the jury was misled.” Id., 465.

As Williams points out, the defendant’s perception of the danger he faced, and his use of force in response to that perceived danger, although two distinct legal concepts for purposes of analyzing the trial court’s instructions, “are so inextricably intertwined that they cannot be analyzed in a vacuum, one separated from the other. The degree of force used by a defendant must necessarily be evaluated in relationship to something. That something is the danger that was perceived by the defendant.” (Emphasis in original.) Id. The Williams court then considered the instructions given by the trial court regarding the perception of danger, and determined that that part of the instruction “enabled the jury properly to carry out its duty to examine the evidence both subjectively and objectively, while keeping in mind that the defendant’s conduct must ‘be judged ultimately against that of a reasonably prudent person.’ ” Id., 466. The court concluded, therefore, that the improper instruction was harmless beyond a reasonable doubt.

As previously stated, the challenged portion of the jury instruction here is nearly identical to that challenged in Williams. The trial court’s instruction regarding the defendant’s perception of danger is also nearly identical to that given in Williams. Because we see no meaningful distinction between the facts of Williams and the facts of the present case, we conclude that it is not reasonably possible that the jury was misled and that the improper instruction was harmless beyond a reasonable doubt.

The defendant suggests that the instruction given in his case is distinguishable from that given in Williams because he claims that the trial court also improperly instructed the jury regarding his duty to retreat. Section 53a-19 (b) provides that “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . .” The trial court, however, instructed the jury that the defendant would not be justified in using force if he could have retreated “with safety.” The defendant claims that the trial court’s failure to include the word “complete” in this portion of its charge was improper, and thus, when combined with the other improper portion of the instruction, it is reasonably possible that the jury was misled. We disagree. Although the trial court’s failure to include the express language of the statute in its charge to the jury may be improper; State v. Holloway, 209 Conn. 636, 651, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Cobb, 199 Conn. 322, 324-25, 507 A.2d 457 (1986); State v. Carpenter, 19 Conn. App. 48, 56-57, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); it did not alter the substantive meaning of the statute in any way. Webster’s Third New International Dictionary defines safety as “freedom from exposure to danger.” The term safety, therefore, necessarily entails complete safety and thus the absence of the word “complete” from the trial court’s instructions was harmless beyond a reasonable doubt.

The defendant’s second claim is that a combination of improper interrelated rulings had the cumulative effect of depriving the defendant of a fair trial. He claims that the trial court improperly (1) refused to admit into evidence the defendant’s entire written police statement, (2) conducted an offer of proof on the defendant’s self-defense claim, (3) failed to direct a mistrial in the light of prosecutorial misconduct, (4) permitted the state to impeach the defendant with a prior inconsistent statement made during the offer of proof, (5) failed to admit into evidence his written police statement after the state impeached him, and (6) excluded surrebuttal evidence offered by the defendant relating to the prior inconsistent statement. Additional facts must first be set out in order to address these claims.

At the time of the defendant’s arrest, he gave a sworn written statement to the police regarding the incident in question. In it he stated that when he saw the victim move toward an open drawer, “with fear for my life I then defended myself.” During the state’s casein-chief, the state sought an advance ruling, outside of the jury’s presence, regarding the voluntariness of the defendant’s police statement. The state indicated to the court that it did not intend to offer any part of the written statement into evidence, but it sought the ruling because it planned to call Detective Stanley Lukas, who took the defendant’s statement at the police station, to testify that the defendant admitted carrying a pistol.

The defendant did not object to the request for an advance ruling. Rather, he merely argued that the pistol was inadmissible because the police had seized it during an allegedly improper warrantless arrest. The court determined that the statement was voluntarily given during a police interrogation, and Lukas then testified that the defendant told him that he carried the gun for his own protection.

At the beginning of his case, the defendant called Lukas and attempted to introduce the defendant’s entire written statement through him. The defendant argued that the statement was admissible as an admission and as a declaration against interest. The court refused to permit the introduction of the statement at this time and the defendant took exception to the ruling.

The defendant then took the stand and testified as to his version of the chain of events leading up to the shooting. On direct examination, he testified that the victim was a drug and alcohol abuser and had a reputation for violence. The state objected to this testimony. It claimed that such testimony was not relevant unless the defendant presented a claim of self-defense. It requested that the defendant make an offer of proof regarding his possible self-defense claim, and the defendant did not object to this request.

During the offer of proof, which was outside of the presence of the jury, the defendant stated that he did not intentionally shoot the victim, but that the gun accidentally discharged when he pulled it out of his coat pocket. The state argued, still outside of the presence of the jury, that the defendant did not adequately present a self-defense claim through this offer because self-defense requires an intentional act, which the defendant had stated during his offer of proof did not occur. The court rejected this argument.

The jury was called back into the courtroom and the defendant continued his direct testimony. When asked about the shooting, the defendant testified that he aimed the pistol at the victim’s shoulder and shot the victim to defend himself.

On cross-examination, the state questioned the defendant about his inconsistent versions of the incident. The defendant first acknowledged that he stated during his offer of proof that the shooting was accidental. The state then asked the defendant whether his decision to forgo an accident defense in his testimony to the jury was influenced by the state’s argument during the offer of proof that a claim of accident precludes a claim of self-defense. The defendant denied that he heard the particular argument to which the state was referring. Upon further cross-examination, the defendant denied that he stated during the offer of proof that the gun went off accidentally.

During the state’s rebuttal of the defendant’s case, the state moved to admit the portion of the transcript from the offer of proof where the defendant claimed that the shooting was accidental. The state sought to admit the transcript, not for the truth of the matter contained therein, but rather to impeach the defendant by contradicting the defendant’s testimony before the jury in which he denied that he made the accident claim. The trial court, over the defendant’s objection, admitted the transcript. The defendant then moved to present surrebuttal testimony of the defendant to clarify, contradict and explain the prior inconsistent statement. The trial court denied the defendant’s motion, to which the defendant excepted. Then, during final argument, the prosecutor highlighted the inconsistency of the defendant’s claims and suggested that the defendant changed his inconsistent defense to one of simply self-defense after he heard the prosecutor’s argument during the offer of proof.

The defendant first claims that the trial court improperly refused to admit into evidence the defendant’s entire written police statement after the state, in its case-in-chief, elicited from Lukas certain statements that the defendant made to him during interrogation. On appeal, the defendant claims that the statement should have been admitted in order to “elicit the context in which the admission was made . . . .” Although the defendant excepted to the trial court’s ruling, he failed to state on the record this reason for the statement’s admission into evidence. At trial, he argued that the entire statement was admissible as an admission or as a declaration against interest.

“In raising claims of error on appeal, parties are limited to arguing the authority and grounds for objections that were presented at trial. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982).” In re Christopher G., 20 Conn. App. 101, 107, 564 A.2d 619 (1989), cert. denied, 213 Conn. 814, 569 A.2d 549 (1990). We are not bound to consider claims that are not distinctly raised at trial. Practice Book § 4185. Review of evidentiary rulings is limited to the specific legal ground raised on the objection. State v. Velez, 17 Conn. App. 186, 192, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989). Because the defendant does not raise the same claim of admissibility of the statement that he did at trial, we will not review this claim.

The defendant’s second challenge is to the trial court’s conducting an offer of proof on the defendant’s claim of self-defense. He claims that it “clearly deprived him of fair proceedings.” This claim was not preserved at trial, but the defendant requests both Golding and plain error review of this claim.

We fail to see how this offer of proof deprived the defendant of a constitutional right. Because the defendant had not interposed a self-defense issue into the case at the time he sought to have character evidence of the victim admitted, an offer of proof was an appropriate method for ascertaining whether the defendant could properly make such a claim such that the trial court could conditionally admit the evidence at the time, subject to the defendant’s connecting it to a self-defense claim later. The defendant has failed to satisfy both the second and third prongs of Golding, and thus is not entitled to review of this claim.

The defendant’s next claim appears to be one of prosecutorial misconduct. The defendant argues that the prosecutor improperly argued that a defendant cannot legally assert inconsistent defenses. During the offer of proof on the defendant’s self-defense claim, the defendant stated that he did not intentionally shoot the victim, but that the gun went off accidentally when the defendant pulled it out of his jacket pocket. While the jury was still out, the state argued that this testimony would not inject the issue of self-defense into the case. It argued that because he testified that the gun went off accidentally, he cannot claim self-defense because self-defense requires an intentional act. Later, when the defendant presented self-defense testimony to the jury, the state attempted to impeach the defendant with the statement made at the offer of proof. Then, during its summation, the state highlighted the inconsistency in the defendant’s defense.

The defendant did not preserve this claim, but argues that it is amenable to Golding review. We first note, however, that the state’s initial argument regarding the inconsistent claims was made outside of the jury’s presence during the defendant’s offer of proof, and therefore did not harm the defendant in any way. When the prosecutor asked the defendant on cross-examination whether he changed his defense after he heard the prosecutor’s argument regarding inconsistent defenses during the offer of proof, the trial court limited the questioning to whether the defendant had heard an argument concerning the law of inconsistent defenses. The prosecutor did not state that the law prohibits inconsistent defenses. Then, when the prosecutor commented on the inconsistent defenses during summation, he did not claim that the law prohibited them, but rather highlighted the defendant’s retreat from his accident defense as bearing on his credibility. Although State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983), permits a defendant to assert inconsistent defenses, it does not prohibit the state from exposing the defendant’s inconsistent positions on cross-examination. Because the defendant has failed to demonstrate a pattern of misconduct repeated throughout the trial or that the prosecutor’s conduct was blatantly egregious, the defendant cannot prevail on his unpreserved prosecutorial misconduct claim. State v. Tweedy, 219 Conn. 489, 509-10, 594 A.2d 906 (1991); State v. Williams, 204 Conn. 523, 536-37, 529 A.2d 653 (1987).

The defendant also claims that the trial court improperly permitted the state to impeach the defendant with statements he made under oath during the offer of proof. After the defendant testified on direct examination that he shot the victim in self-defense, the state, on cross-examination, asked the defendant whether he remembered saying during the offer of proof that the gun went off by accident. The defendant, at one point in his testimony, responded affirmatively to the state’s questioning. The defendant argues that the impeachment was improper because the defendant admitted that he had made inconsistent statements.

“A trial court has wide discretion in allowing prior inconsistent statements to impeach the testimony of a witness. State v. Torres, 210 Conn. 631, 640, 556 A.2d 1013 (1989). 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 (3990).

“ Tt is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimension, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.’ State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067(1985).” State v. Torrice, 20 Conn. App. 75, 91, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). The defendant has failed to demonstrate to us how the admission of the prior inconsistent statement was harmful to him. Because of this failure, the defendant’s claim must fail.

The defendant also claims that once the prior inconsistent statement was elicited through the state’s cross-examination of the defendant, his entire written statement to the police should have been admitted to rehabilitate the defendant because in it the defendant had stated that he acted in self-defense. As the state points out and we concur, however, “the defendant ignores the fact that he never moved to admit the written statement following the state’s admission of the transcript excerpt. In essence, he does no more than fault the court for not assuming the role of his advocate.” Further discussion of this claim, therefore, is unwarranted.

Finally, the defendant claims that he should have been able to testify in surrebuttal after the state introduced into evidence certain portions of the transcript from the offer of proof. He claims that the trial court improperly precluded him from rehabilitating his credibility by explaining what he meant when he stated that the gun went off by accident.

“The trial court is vested with considerable discretion in the matter of rebuttal evidence. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986); State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). ‘Ideally, rebuttal evidence is that which refutes the evidence [already] presented . . . rather than that which merely bolsters’ one’s case. State v. Lisella, supra.” State v. Wood, 208 Conn. 125, 139, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988).

The state’s rebuttal evidence was not new evidence. Rather, it was simply relevant portions of the transcript of the defendant’s testimony during the offer of proof. The defendant had already been cross-examined about these statements and, in fact, admitted the very inconsistency that the transcript contained regarding the accidental shooting. The defendant had ample opportunity to rehabilitate his credibility when he was previously examined on redirect. The trial court concluded that the defendant “could have explained [the inconsistency] this morning.” In other words, the testimony that the defendant sought to provide on surrebuttal did not respond to anything new. We conclude that the trial court did not abuse its discretion.

Because none of these issues merits our review or is meritorious upon our review of it, we conclude that the cumulative impact of these rulings did not deny the defendant a fair trial. See State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); State v. Hudson, 14 Conn. App. 463, 472, 541 A.2d 534, cert. denied, 209 Conn. 803, 548 A.2d 439 (1988).

The judgment is affirmed.

In this opinion Daly, J., concurred.

Lavery, J.,

dissenting. Because I cannot agree with the majority’s conclusion that the trial court’s jury instruction, misstating the law on self-defense in two critical respects, was harmless beyond a reasonable doubt, I respectfully dissent.

I

It is the law in Connecticut that, “ ‘[i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. [State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979)]. “[A] defendant is ‘entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).” United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976). “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) . . . .” State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982).’ State v. Fuller, [199 Conn. 273, 278, 506 A.2d 556 (1986)]. When the legislature has created a legally recognized defense, the defendant is entitled to a proper jury instruction on the elements of that defense so that the jury may ascertain whether the state has sustained its burden of disproving the defense beyond a reasonable doubt. Id.; State v. Miller, supra, 660-61.” State v. Havican, 213 Conn. 593, 597-98, 569 A.2d 1089 (1990).

In State v. Miller, supra, 660-61, our Supreme Court stated that this fundamental constitutional right to establish a defense includes properjury instructions on the elements of self-defense “so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.”

In this case the trial court twice incorrectly instructed the jury that it was to evaluate reasonable force under a strictly objective standard, that reasonable force is “that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more.” The majority concedes that this is an incorrect statement of law; State v. Hall, 213 Conn. 579, 586, 569 A.2d 534 (1990); but concludes that the incorrect instruction on reasonable force was harmless beyond a reasonable doubt in the light of this court’s decision in State v. Williams, 25 Conn. App. 456, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991).

In Williams, an instruction identical to the one at issue here was found to be improper. Id., 464. In that case, the defendant was convicted of manslaughter committed under the influence of extreme emotional disturbance. Id., 457. In addition to self-defense, the jury had to decide the effect of intoxication on the defendant’s intent, as well as whether he was influenced by extreme emotional disturbance. Id., 458-60. This court found that the “average person of ordinary intelligence” instruction was clearly improper, but that within the context of that case the improper instruction was harmless error. Id., 464-66. In the present case, where self-defense was the only contested issue, the error is harmful.

The law is clear that a jury is not to use a purely objective standard in evaluating self-defense. Indeed, the statute focuses on the person claiming self-defense. State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). “The starting point of the jury’s inquiry into whether ‘reasonable force’ was used by a defendant is whether the defendant believed that deadly force was necessary to repel the attack. State v. DeJesus, [194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984)].” (Emphasis in original.) State v. Williams, supra, 464.

The defendant’s beliefs were central to his claim that he acted in self-defense. Both he and his fiancee testified that the victim was known to be arroed and had a reputation for violence. The victim was a convicted felon, drug user, drinker, and gambler. Of paramount importance was that the victim had been armed with a gun and threatened the defendant in the past, and that the defendant believed him to be a bully and was afraid of him.

Additional evidence relevant to the defendant’s reasonable beliefs under the circumstances was that he had been robbed at gunpoint at Stowe Village, and another time his home was broken into and he personally encountered the intruder. He testified to his belief that the Stowe Village housing project, where the incident occurred, was a high crime area, especially at night, and to his belief that there were fewer police officers there at night, which is when the incident occurred. These factors were all highly relevant to how much force he believed to be necessary under the circumstances. This accumulated evidence was relevant not to what the average person would have believed, but to what the defendant reasonably believed. He was entitled to a jury that was properly instructed on how to evaluate his reasonable beliefs.

The “Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. [General Statutes § 53a-19 (a)] requires, however, that the defendant’s belief ultimately must be found to be reasonable.” State v. DeJesus, supra; State v. Williams, supra, 464. Only after the jury has focused on the situation from the defendant’s perspective, may it decide whether his belief was reasonable. “ ‘This statutory emphasis on the defendant . . . demonstrates the function of the jury in their evaluation of the self-defense claim.’ State v. Corchado, supra.” State v. Williams, supra. The jury must evaluate the danger a defendant claims to have faced, and the reasonableness of his response to that danger.

Another difference between this case and Williams is that the trial court’s instruction in Williams was incorrect only as to the reasonable force portion of the self-defense instruction. State v. Williams, supra, 462-63. In this case, the self-defense instruction incorrectly defined both reasonable force and the defendant’s duty to retreat.

II

The trial court instructed the jury that before using deadly physical force the defendant had a duty to retreat if he could have done so with safety. Section § 53a-19 (b) (1), however, provides that a person need only retreat if he can do so “with complete safety.” In reaching its conclusion that the incorrect instruction on the duty to retreat was harmless beyond a reasonable doubt, the majority decided that the word safety necessarily encompassed “complete safety.” Such a conclusion is not in accord with our well established rules of statutory construction.

“When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. . . . Similarly, we presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, that it did not intend to enact meaningless provisions . . . .” (Citations omitted; internal quotation marks omitted.) Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412, 420, 606 A.2d 725, cert. granted on other grounds, 222 Conn. 911, 608 A.2d 694 (1992). “Our conclusion is also supported by the principle that ‘ “[n]o word in a statute should be treated as superfluous, void or insignificant

Complete safety is a higher standard than mere safety, and the language of the statute calls for that standard to be applied. If the majority’s conclusion is correct, however, the word complete serves no meaningful purpose in the statute and is nothing more than mere surplusage.

The defendant testified at trial that he did not have time to retreat, and that he believed had he done so he would have been shot in the back. The defendant was entitled to a correct charge on his duty to retreat’ with complete safety, as it was a pivotal question in the defendant’s self-defense claim. A commonsense reading of the statutory language indicates that the legislature intended that the state must meet the higher burden of showing that the defendant could have retreated with complete safety, not with mere safety. I would find the omission of the word complete to be harmful.

Self-defense was the only defense presented by the defendant in this case. Because the charge on self-defense was patently incorrect in two critical respects, I cannot agree that the errors were harmless beyond a reasonable doubt. I would reverse and remand for a new trial.

Accordingly, I respectfully dissent.

       The jury acquitted the defendant of two additional charges, attempted murder, and attempted robbery in the first degree.

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

       The trial court also instructed the jury as follows: “A defendant claiming justification of self-defense may use — may only use reasonable force to defend himself. Reasonable force is the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances.”

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the defendant can prevail on his unpreserved constitutionally based claims only if the following four 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.”

       Under the subjective-objective test, the jury must first determine whether the defendant believed that the use of reasonable force was necessary, and then it must determine whether that belief was reasonable under the circumstances. State v. Williams, 25 Conn. App. 456, 464, 595 A.2d 895 (1991).

       In State v. Williams, 25 Conn. App. 456, 466 n.5, 595 A.2d 895 (1991), the trial court instructed the jury as follows regarding the defendant’s perception of the danger he faced: “The danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack, and under all the existing circumstances. The action leading to the defendant’s claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended, but what the aggressor’s act caused the defendant reasonably to believe was his intention. In other words, the danger need not have'been actual, if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable.
      “In judging the danger to himself, however, the defendant is not required to act with infallible judgment. On the other hand, one exercising the right of self-defense is required to act instantly, and without time to deliberate and investigate. Under such circumstances it is often possible to mistake an actual threat when none, in fact, existed, but the law does not require the same coolness in judgment in estimating his danger that you can exercise in reviewing the facts of this case.” (Internal quotation marks omitted.)

       The trial court charged the jury as follows: “The danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all the circumstances. The act leading to the defendant’s claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended but what the aggressor’s act caused the defendant to reasonably believe was his intention. In other words, the danger need not have been actual if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable. In judging the danger to himself, however, the defendant is not required to act with infallible judgment. Ordinarily, one exercising the right of self-defense is required to act instantly and without time to deliberate and investigate. Under such circumstances, it is often possible to mistake an actual threat when none in fact existed but the law does not require the same coolness in judgment in estimating his danger that you can exercise in reviewing the facts of this case.”

       The following dialogue between the defendant and his attorney appears in the transcript:
      “Defense Attorney: When you pulled out your handgun, what were you going to do?
      “Defendant: Well, initially, I was going to let him know not to make that move because something, you know, might happen if you threaten me about, you know, about killing me.
      “Defense Attorney: All right. And then what happened?
      “Defendant: Well, the gun went off.
      “Defense Attorney: Did you aim it at him?
      “Defendant: Well, not intentionally aimed at him because if I aimed at him and was going to use it in that respect, I would have shot him in the head or something if I was trying to kill him.
      “Defense Attorney: Did you intentionally shoot the gun?
      “Defendant: No.
      “Defense Attorney: What happened?
      “Defendant: It went off when I pulled it out. It was such a fast act with him telling me he’s going to show me and—
      “Defense Attorney: Well, how was it he was shot in the — in his right shoulder? What happened when—
      “Defendant: I don’t understand.
      “Defense Attorney: — you pulled the gun out?
      “Defendant: Would you like me to go through the motions?
      “Defense Attorney: Yes.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Diane Passamano v. Salvatore J. Passamano
    (10643)
    Dupont, C. J., Landau and Heiman, Js.

      Argued June 12
    decision released September 1, 1992

      Charles J. Irving, for the appellant (defendant).

      Lynda B. Munro, for the appellee (plaintiff).
   Heiman, J.

The defendant, Salvatore J. Passamano, appeals from the trial court’s denial of his motion to modify certain financial orders entered in connection with a prior judgment dissolving his marriage to the plaintiff, Diane Passamano. He claims that the trial court (1) incorrectly concluded that the prior order to pay the mortgage and real estate taxes on the parties’ jointly owned house constituted a nonmodifiable assignment of property to the plaintiff, and (2) improperly awarded the plaintiff counsel fees to defend this appeal. We reverse the trial court’s judgment denying the motion to modify and we affirm its award of counsel fees.

The parties’ marriage was dissolved by a judgment of the Superior Court on June 22, 1984. In connection with that judgment, the court ordered that the plaintiff and the parties’ children be permitted to reside in the family home until the youngest child reached the age of eighteen. The court further ordered that when the youngest child turned eighteen, the property be sold and the net proceeds divided equally between the parties. The court further decreed that “the defendant shall pay all mortgage payments on said real property and shall pay all real estate taxes commencing with the tax due on January 1, 1985 . . . .”

The parties’ youngest child reached the age of eighteen on December 7, 1990. On August 16, 1991, the defendant filed a motion to modify the prior judgment to extinguish his obligation to pay the mortgage and real estate taxes on the family home. After a hearing, the trial court, Arena, J., denied the motion to modify, finding that the prior order to pay the mortgage and real estate taxes on the house constituted a nonmodifiable assignment of property. This appeal followed.

After the defendant filed this appeal, the plaintiff filed a motion with the trial court seeking an award of counsel fees to defend the appeal. After a hearing on the motion, the court, Higgins, J., ordered the defendant to pay the plaintiff $2000 to defend this appeal. The defendant then amended this appeal to include a challenge to the trial court’s award of counsel fees.

I

The defendant first claims that the trial court incorrectly determined that the prior order to pay the mortgage and real estate taxes on the family home until the youngest child reached the age of eighteen constituted a nonmodifiable assignment of property. We agree.

General Statutes § 46b-81 (a) provides in pertinent part: “At the time of entering a decree annulling or dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other. Although a trial court has no jurisdiction to alter the terms of that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81; Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976); it may modify a portion of a decree pursuant to General Statutes § 46b-86 (a) upon the showing of a substantial change in the circumstances of either party. Ammirata v. Ammirata, 5 Conn. App. 198, 200, 497 A.2d 768 (1985).” Berg v. Berg, 24 Conn. App. 509, 513, 589 A.2d 885, cert, denied, 219 Conn. 908, 593 A.2d 135 (1991). Although the structure of the dissolution order may indicate whether the division of marital property is considered lump sum alimony pursuant to General Statutes § 46b-82 or a property assignment pursuant to § 46b-81, the difference between the two can be seen in their purposes. Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989). “The purpose of a property assignment is to divide the ownership of the parties’ property equitably; McPhee v. McPhee, 186 Conn. 167, 170, 440 A.2d 274 (1982); while periodic and lump sum alimony is based primarily on a continuing duty to support. Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328 A.2d 674 (1973).” Berg v. Berg, supra.

The order to pay the mortgage and real estate taxes on the house was not a property award because it did not alter the parties’ respective ownership interests. At the time that the judgment dissolving the parties’ marriage was rendered, the parties owned the house as joint tenants. The dissolution court ordered that the plaintiff and the parties’ children be permitted to occupy the marital home until the youngest child turned eighteen, at which time the property was to be sold and the net proceeds divided equally between the parties. Thus, the defendant had a one-half interest in the property when the parties’ marriage was dissolved, and was entitled to receive the value of his one-half interest after the property was sold in accordance with the dissolution court’s orders. The dissolution court assigned no portion of the defendant’s interest in the real property to the plaintiff pursuant to § 46b-81 (a).

A more reasonable construction of this order was that it served to ensure that the plaintiff and the parties’ children would be able to live in the family home until the children had reached the age of majority. Our courts consistently have held that both the amount of alimony to be awarded and the form that such alimony may take are subjects within the sound discretion of the trial judge. See Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980); Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975); Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277 (1974). Because this order resulted from the defendant’s continuing duty to support his family, not from a distribution of the parties’ property interests, it is an award of periodic alimony, which is modifiable. See Berg v. Berg, supra, 513-14.

The trial court incorrectly found that the prior order to pay the mortgage and real estate taxes on the house constituted a nonmodifiable property assignment.

II

The defendant next claims that the trial court’s award of counsel fees to the plaintiff to defend this appeal was improper because it was not based on a consideration of the proper statutory criteria. We are not persuaded.

A hearing was held on November 4, 1991, concerning the plaintiffs motion for counsel fees. The plaintiff testified as follows. The parties have two children, Gina, a full-time college student, and Shannon, a nurse and part-time college student. The plaintiff pays virtually all of Gina’s educational and living expenses and gives Shannon approximately $1000 annually. Although the plaintiff had $2824 in a bank account at the time of the hearing, the money was needed for Gina’s next semester at college. These payments were voluntary because both children are over the age of eighteen.

The plaintiff further testified that her weekly expenses, excluding all payments made for the benefit of her children, totalled $290 per week, and that her most recent financial affidavit indicated a net weekly income of $511.80. She stated that she had paid cash recently for a 1991 Nissan and had bought a parcel of land in Lebanon since the divorce. The plaintiff also testified that the defendant had failed to make the weekly court ordered child support payments from February, 1986, through 1990. In addition, the trial court had the parties’ financial affidavits before it.

After hearing the arguments of counsel, which included a discussion of the parties’ relative financial positions, the pertinent statutes and case law and after considering the probability that the defendant’s appeal from the denial of his motion to modify would be successful, the court ruled on the motion for counsel fees from the bench: “It is the ruling of the court that the expenses that the mother has undertaken to pay in connection with the child in college are reasonable and equitably justified. Taking into account the dim prospects of success on appeal, the court will award the plaintiff the sum of $2000 as an allowance to defend the appeal.” Neither counsel requested, either orally or in writing, further articulation regarding the court’s reasoning in entering this order.

The defendant claims that the court improperly failed to consider the parties’ respective financial abilities. General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse . . . to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .’’The criteria set forth in General Statutes § 46b-82 include “the length of the marriage . . . the causes for the . . . dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of the parties . . . .” Accordingly, the court must consider the parties’ respective financial abilities. Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983); Mitchell v. Mitchell, 24 Conn. App. 343, 346, 588 A.2d 242 (1991). The trial court exercises broad discretion in determining whether to allow counsel fees, and, if so, in what amount. Graham v. Graham, 25 Conn. App. 41, 50, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991); Lawler v. Lawler, 16 Conn. App. 193, 205, 547 A.2d 89, appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989).

Nothing in the record supports the defendant’s theory that the trial court failed to apply the proper criteria. The court heard extensive testimony and argument regarding the parties’ relative financial positions immediately before issuing its ruling. The court also heard the arguments of counsel regarding the pertinent statutory criteria. Its statement that it took the defendant’s “dim prospect of success on appeal” into account is of little moment. Indeed, the defendant correctly points out that our Supreme Court in Marino v. Marino, 136 Conn. 617, 73 A.2d 339 (1950), indicated that although a court may inquire into the probability of success on appeal when ruling on a request for counsel fees to prosecute an appeal, such inquiry is unnecessary when ruling on a motion for counsel fees to defend an appeal because the fact that a judgment appealed from was in the moving party’s favor is ample evidence of merit. Id., 621. Thus, even if the court’s consideration of the defendant’s prospect of success on appeal was in error, it was harmless. Further, the court’s reference to the reasonableness of the plaintiff’s expenditures for the parties’ children was pertinent to the parties’ relative financial positions, and served to address the most vigorously contested issue presented at the hearing.

We also note that no motion for articulation was filed requesting the trial court to articulate on the record the basis on which it ordered the payment of counsel fees. See Practice Book § 4051. In the absence of some evidence to the contrary, we will not presume that the trial court improperly applied the law. “ ‘[I]t would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard.’ ” Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990); Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986). The defendant has not sustained his burden of demonstrating that the trial court committed harmful error, and cannot prevail on this claim. See Carothers v. Capozziello, supra.

The judgment denying the defendant’s motion for modification is reversed and the case is remanded for a hearing on the defendant’s motion to modify the judgment of June 22, 1984, as to the ordered payment of the mortgage and real estate taxes, consistent with this opinion. The order awarding counsel fees to defend the appeal is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-14g provides in pertinent part: “Whenever a husband and wife are joint tenants in the same real estate, either together or in conjunction with others, a divorce or dissolution of the marriage, unless the divorce decree or decree of dissolution otherwise provides, severs their interests and converts them into tenants in common as to each other . . .


author: Per Curiam.

text:
    Scott M. Barlow et al. v. United Builders Supply Company, Inc.
    (10846)
    Daly, Landau and Freedman, Js.
    Argued June 4
    decision released June 30, 1992

      Jacques J. Parenteau, for the appellant (defendant).

      John J. Carta, Jr., for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Heidi I. Kraus v. James L. Kraus
    (10748)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued June 3
    decision released June 30, 1992

      James T. Flaherty, for the appellant (defendant).

      William J. Tracy, Jr., with whom, on the brief, was William J. Eddy, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Ann Morgan v. Marc Poulin
    (10073)
    Foti, Heiman and Freedman, Js.
    Argued June 2
    decision released June 30, 1992

      John F. Merchant, for the appellant (defendant).

      Mary Ann Connors, with whom, on the brief, was Michael F. Ewing, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Kazue Stamm v. Metro North Commuter Railroad et al.
    (10679)
    Norcott, Foti and Landau, Js.
    Argued June 5
    decision released June 30, 1992

      John M. Ciuffo, with whom, on the brief, was Russell J. Berkowitz, for the appellant (plaintiff).

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Daniel M. McCabe, corporation counsel, for the appellee (defendant city of Stamford).
   Per Curiam.

The judgment is affirmed.


text:
    Paul J. Marquis v. Manchester Community College
    (10689)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued June 3
    decision released June 30, 1992

      Paul J. Marquis, pro se, the appellant (plaintiff).

      Carroll T. Willis, Jr., assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Brooks, Torrey and Scott, Inc. v. Connecticut Consolidated Industries, Inc.
    (10841)
    O’Connell, Landau and Freedman, Js.
    Argued June 10
    decision released June 30, 1992

      William T. Shea, with whom, on the brief, was Michael T. Landino, for the appellant-appellee (defendant).

      Geoffrey I. Hecht, with whom, on the brief, were Milton A. Captan, John R. Scanlon and Bernard J. Virshup, for the appellee-appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Cynthia Erickson v. City of Meriden
    (10558)
    Foti, Lavery and Landau, Js.
    Argued June 11
    decision released July 7, 1992

      Paul A. Morello, Jr., with whom, on the brief, was Dennis Ceneviva, for the appellant (plaintiff)..

      Madonna A. Sacco, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Stephen J. Lajzer et al. v. Mark A. Shapiro et al.
    (10710)
    Daly, Foti and Lavery, Js.
    Argued June 12
    decision released July 7, 1992

      Michael J. Auger, for the appellants (defendants John Zubresky et al.).

      John P. Zanini, for the appellees (plaintiffs).
   Per Curiam.

In this matter, a default entered against the defendants on June 24,1991. The defendants subsequently filed a motion to open the default and the plaintiffs subsequently filed a motion for judgment, both of which were heard on August 6,1991. The trial court denied the defendants’ motion and rendered judgment for the plaintiffs. The defendants then filed a motion to reargue and a motion to open the judgment, both of which were heard by the trial court on September 30,1991, and denied. The defendants appeal from the denial of their motions.

The defendants, as appellants, are solely responsible for providing an adequate record on which this court can review the decision of the trial court. See Practice Book § 4061. The defendants have failed to provide this court with transcripts of the hearings held by the trial court in considering these various motions. Transcripts of these hearings would have provided the only possible record on which this court could review the trial court’s exercise of its discretion with respect to these motions. Because the defendants have not fulfilled their duty to provide an adequate record for review, their claims must fail. Oakes v. New England Dairies, 219 Conn. 1, 16, 591 A.2d 1261 (1991).

The judgment is affirmed.


text:
    Thomas Cohn et al. v. Peter R. Johl et al.
    (10293)
    Daly, Foti and Landau, Js.
    Argued June 11
    decision released July 7, 1992

      Peter R. Johl, pro se, the appellant (named defendant).

      Edward J. Murphy, for the appellees (plaintiffs).

      Randal J. LaFlamme, for the appellee (defendant Equity Acquisitions, Inc.).
   Per Curiam.

The judgment is affirmed.


text:
    Chelsea Groton Savings Bank v. Dorothy E. Gagnon et al.
    (10834)
    Dupont, C. J., Foti and Freedman, Js.
    Submitted on briefs June 15
    decision released July 7, 1992

      Dorothy E. Gagnon, pro se, the appellant (defendant), filed a brief.

      Jeffrey R. Godley filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Citytrust v. Joanna W. Page et al.
    (10017)
    Daly, Foti and Lavery, Js.
    Argued June 12
    decision released July 7, 1992

      Frederic S. Ury, for the appellants (named defendant et al.).

      Richard J. Buturla, for the appellee (plaintiff).
   Per Curiam.

We have fully reviewed the claims on appeal and the parties’ briefs regarding those claims. We have also reviewed the record of this case.

Although much of the trial testimony was disputed, the credibility of witnesses, the findings of facts and the drawing of inferences are all within the province of the trier of fact. Grayson v. Grayson, 4 Conn. App. 275, 298, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 211, 520 A.2d 225 (1987). “It is futile to assign error involving the weight of testimony or the credibility of witnesses.” Slattery v. Maykut, 176 Conn. 147, 149, 405 A.2d 76 (1978). This court can neither retry the facts in order to make our own findings nor pass on the credibility of witnesses; Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); “but can only review such findings to determine whether they could legally, logically and reasonably be found thereby establishing that the trial court could reasonably conclude as it did.” Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 47, 467 A.2d 938 (1983).

Appellants have the burden of showing that there was error in the judgment from which an appeal is taken. Messenger v. Messenger, 18 Conn. App. 825, 559 A.2d 1193 (1989). We conclude that the defendants have not met their burden in this case.

The judgment is affirmed.


text:
    Citytrust v. Lise-Lotte E. Knudsen et al.
    (10618)
    Daly, Lavery and Freedman, Js.
    Argued June 9
    decision released July 7, 1992

      Lise-Lotte E. Knudsen, pro se, the appellant (named defendant).

      Roberta Napolitano, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Wilcox Trucking, Inc. v. Leslie and Elliott Company et al.
    (10955)
    Daly, Landau and Heiman, Js.
    Argued June 15
    decision released July 7, 1992

      John K. Harris, Jr., for the appellants (defendants).

      Morton N. Katz, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Charles LaFlamme, Sr., et al. v. Milton L. Cooke, Jr., et al.
    (10349)
    Daly, Foti and Lavery, Js.
    Argued June 12
    decision released July 28, 1992

      James M. S. Ullman, for the appellants (defendants).

      John R. Palumbo, for the appellees (plaintiffs).
   Per Curiam.

After a careful review of the record and briefs in this matter, we find no plain error. In this matter, counsel agreed that our review is limited to the plain error standard. “When our review is limited to the plain error standard, the appellant does not have access to plenary review. Review for 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. . . . We consider the . . . claims of error in the light of this rarefied standard of review.” (Citations omitted; internal quotation marks omitted.) Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988).

We find that no extraordinary situation exists.

The judgment is affirmed.


text:
    John Piorek v. Lawrence F. DelPonte, Commissioner of Motor Vehicles
    (10712)
    Norcott, Lavery and Cretella, Js.
    Argued May 6
    decision released July 28, 1992

      Donald G. Leis, Jr., for the appellant (plaintiff).

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

The defendant appeals from the judgment of the trial court upholding the suspension of his driver’s license for six months pursuant to General Statutes § 14-227b. On appeal, the defendant argues that the trial court improperly determined that he refused to submit to a chemical test or analysis when he requested that he first be allowed to telephone an attorney pursuant to § 14-227b (b).

General Statutes § 14-227b (f) limits the issues in an administrative license suspension hearing to the following: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis; and (4) was such person operating the motor vehicle. Volck v. Muzio, 204 Conn. 507, 511-12, 529 A.2d 177 (1987); Buckley v. Muzio, 200 Conn. 1, 6, 509 A.2d 489 (1986); see also Kramer v. DelPonte, 26 Conn. App. 101, 102, 598 A.2d 670 (1991) (per curiam) (trial may not go beyond the four limited suspension criteria of § 14-227b [f]).

We have fully considered the plaintiffs claims and have thoroughly reviewed the parties’ briefs as well as the record of this case. We conclude that the trial court’s finding that the plaintiff refused to submit to the test was reasonably supported by the evidence.

The judgment is affirmed.


text:
    Noel H. Schenkel et al. v. Modern Motors, Inc., et al.
    (10088)
    Daly, Laveky and Heiman, Js.
    Argued March 27
    decision released July 28, 1992

      Herbert Watstein, for the appellants (plaintiffs).

      Vincent E. Roche, with whom, on the brief, was Joan B. Keating-McKeon, for the appellee (named defendant).
   Per Curiam.

We note that at the time of oral argument, the plaintiff sought to have the court review copies of a supplemental request to charge the jury that he claimed had been filed with the trial court. The named defendant objected to its introduction before this court because he did not have a copy of the supplemental request to charge that had been filed in the trial court for comparison purposes. We reviewed the trial court file and were unable to find a supplemental request to charge. The named defendant’s counsel notified us through the clerk’s office that he had not been able to locate a copy of a supplemental request to charge. On this basis, he continued to object to our review of the supplemental request to charge which was offered to us on the date of oral argument. A tape recording of the trial court proceedings was located, and the tape recording revealed that the trial court had permitted the plaintiff to file a supplemental request to charge.

On the basis of this fact, we have reviewed, over the named defendant’s objection, the supplemental request to charge that was filed on the day of oral argument.

The judgment is affirmed.


author: Lavery, J.

text:
    Connecticut Health Facilities, Inc., et al. v. Zoning Board of Appeals of the City of Stamford
    (10651)
    O’Connell, Lavery and Cretella, Js.
    Argued June 8
    decision released September 8, 1992

      James V. Minor, assistant corporation counsel, with whom, on the brief, were Daniel M. McCabe, corporation counsel, and Paul D. Shapero, former corporation counsel, for the appellant (defendant).

      Michael J. Cacace, with whom, on the brief, was Paul T. Tusch, for the appellees (plaintiffs).
   Lavery, J.

This appeal arises from the denial by the Stamford zoning board of appeals (board) of the plaintiffs’ application for a special exception to build a 120 bed nursing home and child day care center in a single family residential district. The trial court sustained the plaintiffs’ appeal. On appeal to this court, the board claims that the trial court improperly (1) limited the discretion of the board over a special exception application, (2) overturned the board’s denial based upon the criteria for special exceptions, (3) overturned the board’s denial, which was based upon valid criticism by other agencies and evidence about the location of the project, and (4) ruled, sua sponte, that the Stamford zoning regulations were vague and unconstitutional, without the issue being raised in the plaintiffs’ complaint or in the briefs. We agree that the trial court improperly sustained the plaintiffs’ appeal and we reverse.

The pertinent facts are as follows. On October 31, 1989, the plaintiffs, Connecticut Health Facilities, Inc., and James A. Fieber, trustee, filed an application for a special exception to build a 120 bed nursing home and child day care center on a 14.416 acre parcel of land located in Stamford on the New Canaan border. The property is in a single family residence zone and had previously been approved for thirteen single family home building lots. An adjoining parcel of land owned by Fieber located in New Canaan had previously been approved for a sixteen lot subdivision. The whole property, located both in New Canaan and Stamford, was formerly a monastery.

The public hearing on the application was held on December 5,1989. The plaintiffs presented expert witnesses who testified that there was a need for a nursing home in the area, that the project would minimally affect traffic, that local real estate values would not be adversely affected, that the design and location of the building on the property would minimize the impact and intrusion on the neighborhood, that there would be sufficient access and egress for emergency vehicles, that there were sufficient sewer and water facilities, and that the landscaping would blend into the neighborhood.

Because the Stamford planning commission was equally divided on the application, it did not make a recommendation. Members of the commission in favor of the application believed that the facility could be accommodated on the site, that it would not be detrimental to surrounding homes, and that it would have little impact on traffic. Members who opposed the facility believed that a land use of this character and intensity would dramatically change the character of the neighborhood. They also noted that there were no similar institutions in the neighborhood, that the neighborhood would not have expected such a change, and that the proposed use would be in conflict with the goal of the master plan, which is to prevent unwarranted intrusions into sound residential neighborhoods. The application was opposed by the southwestern regional planning agency, which cited the distance from the site to hospitals, traffic impact on both Stamford and New Canaan, the lack of proof as to a need for such a facility, and the failure of the plaintiffs to specify what use will be made of the nine acres of land which will not be used for the facility.

The application was likewise opposed by a large number of residents who voiced concerns over traffic, impact on the neighborhood, the need for the facility, and its deviation from the master plan. One neighbor, a licensed nursing home administrator who was aware of the skilled nursing bed market in Stamford, testified there was no need for such a facility. A health care worker testified that the distance from the facility to area hospitals would be too far. Neighbors also testified as to the present adverse traffic conditions, the conditions of the road and the history of major accidents in the neighborhood. Others addressed the adverse effect on the neighborhood.

On March 21,1990, the board denied the application, finding that (1) the location, size and scale of the proposed structure would be more objectionable to nearby properties than the public necessity demands, and (2) the nature and intensity of the proposed use in relation to its site and surrounding area would produce more potential disturbances to the health, safety or peaceful enjoyment of property than the public necessity demands.

The plaintiffs appealed to the Superior Court. The court sustained the appeal, and found that the plaintiffs had complied with all of the “ascertainable regulations and standards applicable to this appeal,” and that the record failed to show that the plaintiffs violated any zoning regulation applicable to the application. The court further found, sua sponte, that certain Stamford zoning regulations (§ 19.3.2 [a] [1], [2], [3] and [4]) were unconstitutional as impermissibly vague. The defendant then appealed to this court.

The trial court rendered its judgment in an oral decision and later summarized its decision in a written memorandum of decision in response to a motion for articulation. The trial court found that the plaintiffs satisfied all ascertainable standards in the regulations, such as size, dimension setbacks, and the like, but that the standards found in § 19.3.2 (a) (1), (2), (3) and (4) were unconstitutional as impermissibly vague.

The plaintiffs failed to argue or brief the issues of vagueness and unconstitutionality of the standards at the trial court. Rather, the trial court raised them sua sponte. In Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992), our Supreme Court stated, “[w]e have held that the burden of showing that regulations are unconstitutionally vague rests with the plaintiff. Russo v. East Hartford, 179 Conn. 250, 257, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980); see also Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973). Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case. Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991); see also Ghent v. Planning Commission, [219 Conn. 511, 518, 594 A.2d 5 (1991)]. The plaintiff has not met these burdens in this appeal.”

In this case, the plaintiffs never alleged that the regulations were vague or unascertainable nor did they demonstrate that the regulations were vague as applied to the facts of this case. A zoning commission acts in an administrative capacity in its review of an application seeking a special permit use. Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1969). Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process.

Conversely, when a zoning commission reviews a site plan, it is engaged in a ministerial process much like a review of a subdivision application. Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). In these instances, the review process may be accomplished without a public hearing, and the General Assembly has provided for automatic approval if the zoning board fails to act within the statutory time limit. The same is not true of the special permit application process. A public hearing is mandated by General Statutes § 8-3c. If the special permit process were purely ministerial there would be no need to mandate a public hearing. On more than one occasion, our Supreme Court has held that standards set forth in the zoning regulations for the grant of a special permit may be general in nature.

In West Hartford Methodist Church v. Zoning Board of Appeals, 143 Conn. 263, 269, 121 A.2d 640 (1956), the court held that the board did not act arbitrarily, illegally or so unreasonably as to have abused its discretion in denying the plaintiffs petition for a special exception where the standard to be applied by the board was general in nature. In sustaining the action of the board, the court stated that the town’s zoning regulations empowered the zoning board of appeals to authorize a special exception to permit the location of a church in a “residence A” zone if, in the judgment of the board, the public convenience and welfare will be substantially served and the appropriate use of neighboring property will not be substantially or permanently injured. Id., 267. The court concluded that although the new church planned by the plaintiff, including a rear parking lot for 150 cars, would serve the public convenience and welfare, its location in the middle of a highly developed residential area would substantially injure the use of neighboring property by reason of the increase in traffic, the loss of privacy and other conditions. Id., 268-69.

Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 192 A.2d 886 (1963), furnishes another example of the authority of a local commission in dealing with applications pending before it for special exceptions. In Cameo Park Homes, Inc., the Stratford zoning regulations permitted garden apartment development in RS-3 districts, which were zoned primarily for one family dwellings, if approved by the commission as a special exception. Id., 673-74. The garden apartment development planned by the applicant complied with the regulations governing such matters as number and character of dwelling units in each building and the percentage of land to be occupied by the buildings. Id., 675. The commission refused approval, however, because the proposed development would increase the density of population above the prescribed maximum for the zone, would affect the mode of living in the area by creating problems of safety for children, would tend to decrease the value of surrounding homes by increasing traffic and thus limiting privacy, and would be inconsistent with the comprehensive plan, which contemplated preservation of the land as a natural recreation and screen protection area. Id., 675-76. In reaching its holding that the commission did not act arbitrarily, illegally or in abuse of its discretion in refusing to approve the application for the reasons given, the court stated that “[t]he commission’s power to stipulate such restrictions as appear to it ‘to be reasonable and the minimum necessary to protect property values in the district as a whole and the public health, safety and welfare’ necessarily implies the power to withhold its approval of the proposed use in its entirety if the commission finds that the circumstances warrant that action.” Id., 676-77. Further, the court concluded that there was no merit to the plaintiff’s claim that the commission’s function was limited to specify such further restrictions as it might consider necessary because the development satisfied the structure and planned use requirements for garden apartment development. Id., 676.

Likewise, in Malafronte v. Planning & Zoning Board, 155 Conn. 205, 213-14, 230 A.2d 606 (1967), the court upheld that section of the Milford zoning regulations which required that special permits be based on a finding that the specific permitted use will not be hazardous, inconvenient or detrimental to the character of the neighborhood. See also Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 113-14, 248 A.2d 922 (1968); Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 353-54, 232 A.2d 916 (1967); and Farmington v. Viacom Broadcasting, Inc., 10 Conn. App. 190, 196, 522 A.2d 318, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987).

We conclude that the standards set forth in Stamford zoning regulation § 19.3.2 are intelligible, are not vague, and are easily applied to the facts of this case.

Finally, a review of the record shows that the board had “substantial evidence” to sustain the reasons it gave for denial. “The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984). The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site; id., 49-50; or through their personal knowledge of the area involved. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). Where a zoning authority has expressed the reasons for its decision, a reviewing court ‘may only determine if the reasons given are supported by the record and are pertinent to the decision,’ and the authority’s action ‘ “must be sustained if even one of the stated reasons is sufficient to support it.’ ” Torsiello v. Zoning Board of Appeals, supra, 50, quoting Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1981).” Oakwood, Development Corporation v. Zoning Board of Appeals, 20 Conn. App. 458, 460-61, 567 A.2d 1260, cert. denied, 215 Conn. 808, 576 A.2d 588 (1990).

In the present case, both of the board’s stated reasons for denial were amply supported by the record. The property in question was in a single family residential zone. There was evidence in the record to support the following findings: there was no need for an additional nursing home in the area; the location was too far from general hospitals; there was no public transportation available in the area; the local roads were narrow and winding, and lacked sidewalks; the facility would necessarily bring commercial and emergency vehicles into the area which would endanger children in the residential neighborhood; property values would be adversely affected; the sightlines on the streets were inadequate for such increased traffic; and there was not a sufficient need in the area for a 120 bed, 68,000 square foot facility to warrant intrusion into a single family neighborhood, especially because the facility was to be squeezed onto five acres of a fourteen and four-tenths acre parcel. On the basis of the record, including the board’s members’ knowledge of the area, we cannot say that the board acted arbitrarily in determining that the plaintiffs did not meet the standards set forth in the regulations. The reasons stated by the board were supported by the record.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other judges concurred.

       Section 19 of the Stamford zoning regulations, entitled “Variances and Special Exceptions” provides in pertinent part:
      “3.2 Standards and Conditions.
      “(a) Special Exceptions shall be granted by the reviewing board only upon a finding that the proposed use or structure or the proposed extension or alteration of an existing use or structure is in accord with the public convenience and welfare after taking into account, where appropriate:
      “(1) the location and nature of the proposed site including its size and configuration, the proposed size, scale and arrangement of structures, drives and parking areas and the proximity of existing dwellings and other structures.
      “(2) the nature and intensity of the proposed use in relation to its site and the surrounding area. Operations in connection with special exception uses shall not be injurious to the neighborhood, shall be in harmony with the general purpose and intent of these regulations, and shall not be more objectionable to nearby properties by reason of noise, fumes, vibration, artificial lighting or other potential disturbances to the health, safety or peaceful enjoyment of property than the public necessity demands.
      “(3) the resulting traffic patterns, the adequacy of existing streets to accommodate the traffic associated with the proposed use, the adequacy of proposed off-street parking and loading, and the extent to which proposed driveways may cause a safety hazard, or traffic nuisance.
      “(4) the nature of the surrounding area and the extent to which the proposed use or feature might impair its present and future development.
      “(5) the Master Plan of the City of Stamford and all statements of the purpose and intent of these regulations.”

       General Statutes § 8-3 (g) provides in pertinent part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. ...” (Emphasis added.)
      General Statutes § 8-26 provides in pertinent part: “All plans for subdivisions and resubdivisions, including subdivisions and resubdivisions in existence but which were not submitted to the commission for required approval, whether or not shown on an existing map or plan or whether or not conveyances have been made of any of the property included in such subdivisions or resubdivisions, shall be submitted to the commission with an application in the form to be prescribed by it. . . . The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. . . . The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. . . .” (Emphasis added.)

       General Statutes § 8-3c (b) provides in pertinent part: “The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception .... Such commission shall decide upon such application or request within the period of time permitted under section 8-7d. . . .” (Emphasis added.)

       “This so-called substantial evidence rule is similar to the ‘sufficiency of the evidence’ standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action ... it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).


author: O’Connell, J.

text:
    Joseph Consolini et al. v. Inland Wetlands Commission of the City of Torrington et al.
    (10552)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued June 15
    decision released September 8, 1992

      Maureen E. Donahue, for the appellants (plaintiffs).

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

      Brian R. Smith, with whom was John F. Besozzi, for the appellee (defendant Torringford Commercial Associates).
   O’Connell, J.

The plaintiff appeals to this court from the trial court’s decision dismissing his appeal to the Superior Court from the decision of the Torrington inland wetlands commission (commission) that allowed the defendant Torringford Commercial Associates to proceed with the development of a parcel of land. The plaintiff claims that the trial court improperly dismissed his appeal because (1) the approval of two previous permits by the commission allowing Torringford to develop the parcel of land did not excuse the commission’s failure to require a permit application for the revised development plan, (2) the commission reversed its decision that would have required a third permit application without any evidence demonstrating a change of conditions or intervening considerations, and (3) the trial court improperly allowed the inland wetlands enforcement officer to testify. We affirm the trial court’s decision.

The following facts are pertinent to this appeal. In April, 1988, Torringford applied to the commission for a permit to conduct certain activities, including the creation of two retention ponds in a wetland. The permit application was submitted in connection with Torringford’s planned development and construction of a 300,000 foot shopping mall to be known as “Litchfield Hills Mall.” In July, 1988, the commission approved Torringford’s wetland permit application. Specifically, the permit allowed for the creation of the two detention ponds, and the placement of fill for beams, installation of piping, riprap, plunge pools and swales for storm drainage. In January, 1989, the commission issued a companion permit allowing construction of a driveway and the increase of wetlands within detention basin number two. No appeal was taken from either permit approval, and both permits remained valid throughout these proceedings.

Prior to January 23, 1990, Torringford submitted a plan to the commission for “Litchfield Hills Plaza,” which was a scaled down version of the initially proposed development. Torringford submitted this plan to the commission to ascertain whether a third permit application would be required for the development proposed on the same parcel of land. The matter was scheduled for the commission’s January 23,1990 meeting at which counsel for the plaintiff appeared and argued that a new application should be required because the plan was substantially different than the two outstanding permits. Torringford was not present. The plaintiff’s counsel proved convincing in her unopposed role and the commission voted to require a reapplication by Torringford.

The plot thickens, however, because Torringford’s absence was not the result of inadvertence, disinterest or negligence on its part. Through mistake or misadventure, Torringford had been erroneously informed by an inland wetlands commissioner that its plan would not be on the agenda of the January 23 meeting. Upon learning that information, the commission rescheduled the matter for its February 27,1990 meeting in order that both sides could be properly heard.

On February 27, the matter again appeared on the commission’s agenda. This time both Torringford and the plaintiff were represented and heard at this meeting. Torringford’s oral and written evidence explained that the project was a scaled down version of the previous plan for which it already held two permits. As such, Torringford contended that a new permit was not required. The commission then voted to reverse its prior decision requiring a new permit. The plaintiff appealed this decision to the Superior Court, which dismissed the appeal. Additional facts will be included in the following discussion.

I

The plaintiff first claims that the effect of the trial court’s dismissal of his appeal was to allow the commission discretion to allow regulated activity in a wetland without requiring a permit application in violation of our Inland Wetlands and Watercourses Act. General Statutes § 22a-36 et seq.; see General Statutes § 22a-42a (c).

The wetlands statute delegates the power to regulate wetlands and watercourses within its territorial limits to the municipality. It is well settled that a commission empowered to regulate the wetlands within its jurisdiction is afforded discretion in carrying out its duties. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722, 563 A.2d 1339 (1989).

Our statute prohibits any person from conducting any regulated activity within the wetland area without a permit. General Statutes § 22a-42a (c). Torringford’s plan is indisputedly a regulated activity as defined by General Statutes § 22a-38 (13). The specific question raised by the facts in the present case is whether the commission properly decided that the new and downsized plan was within the scope of the two permits which had already been issued. This was a question of fact to be determined by the commission which possessed expertise in this technical area. See Cannata v. Department of Environmental Protection, 215 Conn. 616, 625, 577 A.2d 1017 (1990). Administrative appeals are in general determined by the record before the trial court. Leib v. Board of Examiners for Nursing, 177 Conn. 78, 92, 411 A.2d 42 (1979). The trial court may not retry the facts but must search the record in order to determine if it supports any reason given for the agency’s decision. See Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). In the present case, the court recognized that the commission heard conflicting evidence but held, nevertheless, that evidence before the commission supported a finding that an application and permit for the new downsized plan did not require another application and permit in light of the fact that the commission had previously issued two wetland permits for the same area.

II

The plaintiff next claims that the trial court improperly dismissed his appeal because the commission reversed its prior decision requiring a third permit without any evidence demonstrating a change of conditions or intervening considerations. Our Supreme Court has consistently held that, “ ‘[ojrdinarily, an administrative agency cannot reverse a prior decision unless there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.’ ” Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988); see Strong v. Old Lyme, 28 Conn. App. 435, 611 A.2d 427 (1992).

Because Torringford was told by a member of the commission that the matter would not be addressed at the January meeting, no representative of Torringford appeared at that meeting. John Larson, a representative of Torringford, however, did appear at the February meeting and presented both oral testimony and written evidence addressing the commission’s concerns. The trial court found that the information put before the commission by Larson constituted both a significant change in conditions and intervening considerations that allowed the commission to reverse its prior decision. We agree with the trial court.

Ill

The plaintiff’s last claim on appeal is that the trial court improperly allowed the inland wetlands enforcement officer Edward Lukacovic to testify about the information not contained in the administrative record. The plaintiff also argues that the trial court improperly allowed Lukacovic’s written affidavit into evidence.

We need not reach this claim. The trial court’s finding that “[t]he Commission was presented with and the record reflects sufficient evidence to support the Commission’s decision not to require [Torringford] to submit a new wetland application” is dispositive of the matter. Whether additional evidence was improperly admitted by the trial court could not retroactively affect a decision properly reached by the commission.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       The trial court found that only Ronald Clifford was an aggrieved party. Thus, the other plaintiffs are not parties to this appeal and any reference to the plaintiff hereinafter refers to Clifford only. Further, the commissioner of the department of environmental protection filed an appearance and a brief in the trial court. When the plaintiff filed this appeal, however, the court granted the commissioner’s motion to withdraw.

       Minutes of the commission’s February 27, 1990 meeting indicate that one commissioner explained that Torringford had been told that its item would not be on the January 23, 1990 agenda and the commission chairman apologized to Torringford for “the confusion.”

       The pertinent part of General Statutes § 22a-42a (c) provides: “|N]o regulated activity shall be conducted upon any inland wetland and watercourse without a permit. Any person proposing to conduct ... a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located. . . .”

       General Statutes § 22a-38 (13) defines regulated activity as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses [but excluding certain permitted uses].”