author: PETERS, J.

text:
    STATE OF CONNECTICUT v. KEITH BEAULIEU
    (AC 23297)
    Sehaller, Flynn and Peters, Js.

      Argued February 23 —
    officially released May 11, 2004

      John R. Williams, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and L. Mark Hurley, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

In this criminal appeal, the defendant challenges the validity of his conviction for kidnapping in the first degree and sexual assault in the first degree. The principal issue on appeal is whether the prosecutor deprived the defendant of a fair trial by a continued course of conduct designed to influence the jury’s assessment of the credibility of the state’s most important witness. We conclude that the manner in which the prosecutor conducted this case requires us to set aside the defendant’s conviction for sexual assault but not his conviction for kidnapping. Accordingly, we affirm the judgment of the trial court in part and reverse it in part.

In a two count information, the state charged the defendant, Keith Beaulieu, with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). The defendant, having waived his right to counsel, proceeded to trial pro se with the assistance of standby counsel. After the jury found the defendant guilty on both counts, the court sentenced him to a total effective sentence of twenty years imprisonment followed by a period of ten years special parole.

In the defendant’s appeal from this adverse judgment, he raises three issues. He claims that (1) the evidence before the jury was insufficient to support his conviction of sexual assault, (2) the trial court improperly admitted hearsay evidence that implicated both his conviction of sexual assault and his conviction of kidnapping, and (3) the prosecutor violated the defendant’s due process rights to a fair trial as a result of numerous instances of misconduct in the prosecutor’s questioning of witnesses and in his closing argument to the jury. We are persuaded only by the claim of prosecutorial misconduct.

I

EVIDENTIARY SUFFICIENCY

The defendant claims that there was insufficient evidence to support his conviction of sexual assault in the first degree because, in his view, the state did not establish that (1) the crime occurred within the state of Connecticut and (2) he was not married to the victim at the time of the assault. We are not persuaded.

Our standard of review for challenges to the sufficiency of the evidence is well settled. We apply a two part test, interpreting the evidence, if possible, to sustain the verdict and ascertaining whether the evidence and the inferences therefrom suffice to establish the defendant’s guilt beyond a reasonable doubt. E.g., State v. Merriam, 264 Conn. 617, 628-29, 835 A.2d 895 (2003).

The jury reasonably could have found credible the victim’s account of the following events. After meeting in the summer of 1999, the defendant and the victim began a romantic relationship and came to share a residence in Milford. When the victim decided to end the relationship and to move out, the defendant responded with physical violence, threats of suicide and surveillance of the victim’s car.

On December 12, 2000, the victim returned to the residence to retrieve certain personal property. The defendant’s vehement refusal to permit her to do so resulted in a prolonged verbal and physical confrontation. At one point, the defendant put his hand over the victim’s mouth to stop her from screaming at the defendant and appeared to be reaching for a gun.

Eventually, the victim was able to leave the residence and to return to her car but the defendant forcibly prevented her from driving away. After another serious physical confrontation, the defendant forced her to relinquish her car keys to him, and he took over the operation of the car.

After stopping briefly at a fast food restaurant and a gasoline station, the defendant drove southwesterly through various Connecticut towns and then to Pound Ridge, New York. He continued to threaten to kill the victim if she left him.

At some point during these travels, the defendant pulled the vehicle over near a vacant dark house that appeared to be a new construction site. Parking the car in such a way that the victim could not open the passenger door, the defendant, with the victim’s reluctant assent, performed cunnilingus on her. Then, despite the victim’s repeated verbal protests, he forcibly penetrated her vaginally.

Eventually, the defendant and the victim returned to the defendant’s residence. The victim immediately reported the sexual assault to the police. Police photographs of her body, taken a few days later, revealed bruises on the victim’s arm and buttocks. The defendant subsequently was arrested.

A

Location of the Sexual Assault

The defendant does not deny that the jury reasonably could have found that he had engaged in sexual intercourse with the victim and that the intercourse was not consensual. He does claim, however, that the state failed to present sufficient evidence to establish that the sexual assault occurred in this state. He alleges that the sexual assault occurred in New York, rather than in Connecticut, and that, as a consequence, the trial court lacked territorial jurisdiction to hear his case. We disagree.

Our Superior Court has no territorial jurisdiction to adjudicate a charge of sexual assault unless the state proves, beyond a reasonable doubt, that the event occurred in Connecticut. See General Statutes § 51-la (b); State v. Ross, 230 Conn. 183, 195, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). The genesis of this rule is the common-law principle that “one State or sovereignty cannot enforce the penal laws of another, nor punish offenses committed in and against another State or sovereignty.” State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931).

It is undisputed that the victim was never able conclusively to establish the exact location of the sexual assault. Concededly, at some point in their odyssey, she and the defendant crossed the border to New York at Pound Ridge. She testified, however, that they “started going to New York again” after the sexual assault had occurred. A police officer testified that, as a result of his own investigation, he had concluded that there was no evidence that the sexual assault had occurred in New York.

In rebuttal, the defendant’s brief, without a citation to the record, simply states that the parties “drove through the town of Pound Ridge and then stopped in the driveway of a house under construction where they engaged in the sexual activity . ...” In our own search of the record, we have found nothing to substantiate the defendant’s assertion.

As a result, we conclude that there was sufficient evidence to support the court’s finding that the sexual assault occurred in Connecticut and its consequent denial of the defendant’s motion for dismissal. This case was properly adjudicated within our state court system.

B

Marital Status of the Defendant and the Victim

The defendant also argues that there was insufficient evidence to support his conviction for sexual assault in the first degree because the state did not establish that the victim and the defendant were not, at that time, married to each other. In his view, General Statutes §§ 53a-70 (a) (1) and 53a-65 (2) require the state to prove lack of marriage as an element of the crime of sexual assault in the first degree. In light of State v. Scott, 11 Conn. App. 102, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987), which the defendant does not try to distinguish, this claim is untenable.

In Scott, this court, in construing the same statutory sections that are at issue in this case, held that “the absence of a marital relationship between the defendant and the victim of a sexual assault is not an essential element of the crime. Rather, the existence of a marital relationship can be raised as an exemption or defense to prosecution for sexual assault in the first degree under § 53a-70 (a).” (Emphasis added.) Id., 112. Accordingly, “[a] finding of non-culpability based on the ‘marital exemption’ of [§] 53a-65 (2) necessarily depends upon proof of the fact that the victim and the defendant were legally married.” State v. Paolella, 210 Conn. 110, 123, 554 A.2d 702 (1989).

As in Scott, the record in this case reveals that the defendant did not produce any evidence invoking the marital exemption, most likely because the defendant and victim were never married. Because the marital status of the parties was not relevant to the crime with which the defendant was charged, we conclude that the state did not have to disprove the existence of a marital relationship between the defendant and the victim.

II

EVIDENTIARY RULINGS

The defendant next claims that the trial court improperly allowed two witnesses to offer hearsay evidence to bolster the victim’s testimony of sexual assault. The testimony to which he objects was provided by a Mend of the victim and by a police officer. The victim had spoken to each of them about her alleged kidnapping and sexual assault. We agree with the state that their testimony was admissible.

Our standard of review for claims of evidentiary impropriety is well settled. “[T]he trial court has broad discretion in ruling on the admissibility of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Outdoor Development Corp. v. Mihalov, 59 Conn. App. 175, 184, 756 A.2d 293 (2000).

A

Friend of the Victim

A friend of the victim testified that, soon after the alleged sexual assault, the victim had told her that “[the defendant] had raped her and she was afraid that he was going to do something to [the friend] and [her daughter].” The defendant objected to this testimony on hearsay grounds. The trial court admitted it under the doctrine of constancy of accusation as articulated in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). As part of its final instructions, the court instructed the jury that this evidence was being admitted only to assist their assessment of the victim’s credibility and not for substantive purposes.

On appeal, the defendant claims that the testimony exceeded the evidentiary limitations that our Supreme Court set out in Troupe. In his view, the friend’s testimony should have been excluded because she repeated, in detail, the victim’s charges against the defendant.

“The constancy of accusation doctrine allows a witness to whom the victim of a sex crime has confided the details of the crime to testify in court about what the victim told the witness as an aid in assessing the credibility of the victim. [Id., 304-305].” State v. Minor, 80 Conn. App. 87, 93 n.8, 832 A.2d 697, cert. denied, 267 Conn. 907, 840 A.2d 1172 (2003). The permissible scope of such evidence has, however, been limited by Troupe, so that a witness may testify to the time and place of the attack or the identity of the alleged perpetrator but not to the details of the sexual assault. State v. Troupe, supra, 237 Conn. 304. “[S]uch evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” Id.

In this case, the trial court permitted the state to present the testimony of the friend after the victim herself had already testified about the sexual assault. The victim’s testimony was extensive and she was cross-examined extensively.

The defendant asserts that the friend improperly testified about the details of the sexual assault. As a matter of fact, the record belies this assertion. As a matter of law, the friend’s testimony was entirely consistent with the standard for admissibility set out in Troupe. See id.; see also State v. Ellison, 79 Conn. App. 591, 606-607, 830 A.2d 812 (Troupe permits testimony describing victim’s state of mind in filing charges against defendant), cert. denied, 267 Conn. 901, 838 A.2d 211 (2003).

Under these circumstances, we conclude that the trial court did not abuse its discretion in admitting the friend’s testimony into evidence. Its ruling was fully in accord with Troupe.

B

The Police Officer

The victim also spoke to a member of the Milford police force. The officer testified at length about what the victim had told him when she reported that she had been kidnapped and sexually assaulted.

The trial court overruled the defendant’s objection that this testimony was inadmissible hearsay. On appeal, the defendant maintains that the officer’s detailed description of the alleged crimes exceeded the bounds of permissible testimony set forth in Troupe.

The state does not dispute the defendant’s claim that the officer’s testimony was inadmissible under Troupe. It argues instead that the testimony was admissible as a prior consistent statement to rehabilitate the victim after extensive cross-examination by the defendant.

We start our analysis of the defendant’s claim by describing what transpired at trial when the defendant objected to the officer’s testimony. He objected on the ground of hearsay without referring to the doctrine of constancy of accusation. The state did not argue that the officer’s testimony was admissible as constancy of accusation evidence. The trial court overruled the defendant’s objection without articulating a reason for its decision. The court did not remind the prosecutor, as it had earlier, of the evidentiary restrictions imposed by Troupe. Constancy of accusation was simply not on the table.

The defendant does not address the disjuncture between his claim at trial and his claim on appeal. Even a pro se defendant should inform the court, in some way, about the basis for his objection. That was not done here.

In effect, the defendant’s claim of a Troupe violation is one that was not preserved at trial. Because claims concerning constancy of accusation testimony are evi-dentiary in nature, they are ineligible for constitutional review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Troupe, supra, 237 Conn. 305; State v. Minor, supra, 80 Conn. App. 93; State v. Spiegelmann, 81 Conn. App. 441, 451, 840 A.2d 69 (2004).

The question then becomes whether the trial court’s evidentiary ruling, reviewed for abuse of discretion, can reasonably be characterized as plain error under the circumstances of this case. We are persuaded that it cannot. As the state notes, the officer’s testimony was admissible as a prior consistent statement to rehabilitate the victim after her credibility had been put into question by the defendant’s searching inquiry, on cross-examination, into bias and improper motive. See Conn. Code Evid. § 6-11 (b) (2). Like constancy of accusation testimony, prior consistent statements are admissible only for credibility purposes and not for the truth of the matters asserted. State v. Anonymous (83-FG), 190 Conn. 715, 728, 463 A.2d 533 (1983). The trial court instructed the jury that the officer’s testimony could be used only for this limited purpose.

We conclude, therefore, that the court did not abuse its discretion in admitting the officer’s testimony into evidence. The court’s charge to the jury properly limited the use to which this testimony might be put.

Ill

PROSECUTORIAL MISCONDUCT

The defendant’s final and most important claim on appeal is that the prosecutor violated the defendant’s due process rights to a fair trial as a result of three instances of misconduct, one arising in the context of the questioning of the Milford police officer and the others involving the prosecutor’s closing arguments to the jury. The defendant claims that this pattern of misconduct deprived him of his due process right to a fair trial. The state argues that, even if there was some misconduct, in context, the defendant was not seriously prejudiced thereby. We agree with the defendant with respect to his conviction of sexual assault and with the state with respect to the defendant’s conviction of kidnapping.

As a preliminary matter, the defendant concedes that he did not properly preserve this claim for appeal since he failed to object to any of the instances of misconduct. Nonetheless, his claim, because it is of constitutional magnitude; see State v. Whipper, 258 Conn. 229, 272, 780 A.2d 53 (2001); qualifies for review under State v. Golding, supra, 213 Conn. 239-40.

To prevail under Golding, the defendant must establish that the alleged constitutional violation “clearly exists and clearly deprived [him] of a fair trial . . . .” Id., 240. Even such a showing does not, however, entitle him to a new trial if the state establishes that the violation was harmless beyond a reasonable doubt. Id.

Our Supreme Court has articulated the principles that guide the analysis of the defendant’s claims. “To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-700, 793 A.2d 226 (2002).

Accordingly, claims of prosecutorial misconduct trigger a two-pronged inquiry. “The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial, an inquiry that in the present case necessarily will require evaluation of the defendant’s other misconduct claims.” State v. Ceballos, 266 Conn. 364, 381-82 n.29, 832 A.2d 14 (2003).

A

Misconduct

To assess the validity of the defendant’s claim, we first must determine whether the prosecutor engaged in misconduct. The defendant maintains that the prosecutor overstepped the boundary of zealous pursuit of the state’s case because, on three occasions, he improperly bolstered the credibility of the victim. These alleged acts of misconduct occurred during the prosecutor’s questioning of the Milford police officer, during initial closing argument to the jury and during rebuttal argument to the jury.

Our assessment of the validity of the defendant’s claims is not an exercise in abstract reasoning. The undeniable fact is that, in this case, the defendant’s innocence or guilt depended almost entirely on the credibility of the victim. The only other evidence that the state produced consisted of two photographs showing bruises to the victim’s arm and buttocks. These photographs did not substantiate the victim’s claim of sexual assault although they did add some objective evidence of kidnapping. The state did not have a strong case.

The prosecutor first bolstered the victim’s credibility in his questioning of the officer. He repeatedly asked this witness to compare the testimony given by the victim with that given by the defendant with respect to their relative credibility and veracity. We agree with the defendant that this questioning was improper. A prosecutor may not ask any witness to comment on the credibility or veracity of another witness’ testimony. State v. Singh, supra, 259 Conn. 706-708. “[Questions of this sort . . . create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the witness has lied.” (Internal quotation marks omitted.) State v. Ceballos, supra, 266 Conn. 380.

In his initial closing argument to the jury, the prosecutor again improperly bolstered the credibility of the victim. He unequivocally vouched for her credibility by assuring the jury that she was there “to tell the truth” and made other assertions in the same vein.

This argument is a textbook example of what prosecutors should not say. See State v. Spencer, 81 Conn. App. 320, 326-28, 840 A.2d 7 (2004). Our case law does not permit a prosecutor to express his opinion, directly or indirectly, about the credibility of the witnesses he has presented. “Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Put another way, the prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 462, 832 A.2d 626 (2003).

The state defends the conduct of the prosecutor on the ground that, in context, the jury could not have been misled. It points to the fact that, earlier in his initial closing argument, the prosecutor had recapitulated the evidence that the jury had to consider. This recapitulation did not, however, immediately precede the statements now at issue. The prosecutor did not refer back to any of this evidence when he vouched for the credibility of the victim. In State v. Thompson, supra, 266 Conn. 440, our Supreme Court, in evaluating the propriety of similar vouching remarks, held that such remarks were permissible only when “the prosecutor was merely submitting a conclusion about truth that was tied to the evidence, namely, that [the witness] had no reason to lie, that [the witness’] story remained consistent throughout the investigation and the trial, and that the testimony . . . was corroborated by the . . . statements of [other witnesses].” Id., 468. Conversely, the court found other statements referencing the truthfulness of witnesses to be improper when they “[were] not tied to any discussion of the evidence. . . .” Id., 468-69.

Alternatively, the state argues that any possible impropriety was cured by the fact that, immediately before the challenged remarks, the prosecutor reminded the jury that “[y]ou, ladies and gentlemen are the finders of fact. My arguments, they are not evidence. . . . It doesn’t matter what I think. . . .” The juxtaposition of this disclaimer with comments about the credibility of the state’s witnesses does not, however, justify vouching. Our Supreme Court has held that such prefatory remarks “do not transform an otherwise improper form of argument into aproper one.” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 463; see also State v. Singh, supra, 259 Conn. 699-700.

The propriety of the prosecutor’s statements in his rebuttal argument presents a closer issue. After expressly urging the jury to consider the evidence, he told the jury that the victim was “a credible witness who in her own words was violated that evening. She said, ‘no’ and he didn’t stop and that’s what it all adds up to. Thank you for your attention. ” (Emphasis added.) On balance, we are persuaded that these statements were not improper. See State v. Thompson, supra, 266 Conn. 468-69.

B

Prejudice

Our analysis of the validity of the defendant’s conviction cannot stop with identification of instances of pros-ecutorial misconduct. We must decide whether their cumulative effect so infected the trial with unfairness as to make the conviction a denial of due process. See State v. Singh, supra, 259 Conn. 723. In making this determination, we consider separately the impact of the misconduct on the defendant’s conviction of kidnapping in the first degree and sexual assault in the first degree. We agree with the state that the defendant’s conviction of kidnapping passes constitutional muster. We agree with the defendant that his conviction of sexual assault was fundamentally unfair.

Assessment of the harmfulness of prosecutorial misconduct requires a multifactor analysis. The relevant factors are (1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case. State v. Thompson, supra, 266 Conn. 478. Because the state concedes that the defendant did not invite the misconduct, we need only consider the applicability of the remaining five factors.

We start our analysis by emphasizing, once again, the centrality of the misconduct of the prosecutor. Unless the jury believed the victim, the state had no case. The state does not argue to the contrary. In such a case, “the significance of the [prosecutor’s] improper conduct increases considerably.” State v. Ceballos, supra, 266 Conn. 417. It matters that the state’s case against the defendant was thin. State v. Thompson, supra, 266 Conn. 481-82 (strong case weakens argument of prejudicial misconduct).

We evaluate the remaining factors identified in Thompson against this background. We agree with the defendant that the misconduct was egregious because it occurred during both portions of the state’s case and involved the ultimate issue of the victim’s credibility. In context, these were not isolated events.

We recognize that, even under Golding review, it is significant that the defendant failed to object to this misconduct at trial. See id., 483-84; State v. Reynolds, 264 Conn. 1, 165, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). When credibility is the only issue, however, such a failure cannot be dispositive. Although the absence of a contemporaneous objection might excuse this misconduct in other circumstances, it cannot do so in the case of the credibility contest that dominated this case.

It is understandable, in light of the defendant’s failure to object, why the trial court gave the jury only general instructions about its responsibility to assess the credibility of the witnesses who had appeared before it. Our Supreme Court has not established a bright line rule about the corrective power of general instructions. Compare State v. Ceballos, supra, 266 Conn. 413-15 (general instruction has only limited curative effect) with State v. Thompson, supra, 266 Conn. 485 (presumption that jury followed court’s general instructions). Both cases emphasize, however, that general instructions are only one factor, and not a determinative factor, in evaluating the prejudicial effect of a prosecutor’s misconduct. Because of the fact that this prosecutor’s misconduct was egregious, we are persuaded that the general instructions in this case did not remove the deleterious effect of his thumb on the scale of credibility. See State v. Spencer, supra, 81 Conn. App. 334.

Even egregious misconduct, however, does not automatically entitle a defendant to a new trial. The state emphasizes that certain physical and forensic evidence demonstrates that the credibility and veracity of the victim were not the only issues in this case. We now turn, therefore, to an examination of this additional evidence.

The evidence that the state calls to our attention consists of (1) photographs showing bruises to the victim’s arm and buttocks, (2) forensic evidence revealing the presence of the defendant’s semen in the victim and (3) allegedly contradictory statements made by the defendant to the police when he described the details of the sexual activity.

We agree with the state that the photographic evidence corroborates the victim’s testimony with respect to the kidnapping. At trial, she testified that, to prevent her from leaving the car, the defendant forcibly grabbed her arm and threatened to break it. Because the defendant, in his statement to police, asserted that he had not restrained the victim physically, photographs of bruises corroborated the victim’s testimony to the contrary. In light of this photographic corroboration, the state presented the jury with evidence that was sufficient to sustain the defendant’s conviction for kidnapping.

We disagree, however, with the state with respect to the sexual assault. The defendant never denied having sexual intercourse with the victim. His defense was consent. The photographs corroborate the fact that the defendant placed his body on top of the victim, but that is not the contested issue. For similar reasons, the presence of semen in the victim’s body is irrelevant. The state did not have evidence of physical trauma that might have corroborated the state’s claim of forcible sexual assault.

The state also argues that its sexual assault case against the defendant was strengthened by the fact that the defendant made two inconsistent statements on that subject to the police. The state claims that the defendant initially denied having vaginal intercourse with the victim and then, during a subsequent interview, admitted that he had done so. In both of his statements to the police, however, he consistently stated that the victim had engaged in and had consented to, both oral sex and to vaginal intercourse. These assertions are entirely consistent with his position at trial. They do not, however, provide additional support for the victim’s statement that she repeatedly had objected to the sexual assault.

C

Conclusion

To prove its charges of sexual assault and kidnapping, the state had to persuade the jury of the credibility of the victim. Because the prosecutor produced photographic evidence to corroborate the victim’s testimony that she had been kidnapped, his misconduct was not so prejudicial to the defendant as to require a new trial on that charge. By contrast, because the prosecutor produced only equivocal evidence to corroborate the victim’s testimony that she had been sexually assaulted, that conviction cannot stand.

The judgment is reversed only with respect to the defendant’s conviction of sexual assault in the first degree and the case is remanded for a new trial on that charge. The judgment is affirmed in all other respects.

In this opinion the other judges concurr ed.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually. . . .”

       General Statutes § 53a-70 (a) (1) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . .”

       The defendant does not challenge the propriety of the trial court’s decision to allow him to proceed pro se. In addition, although he has alluded to several instances of alleged unfair treatment by the trial court, he has not made this a basis for his appeal.

       The defendant has not challenged the sufficiency of the evidence with respect to his conviction of kidnapping in the first degree.

       Cf. Amnesty America v. West Hartford, United States Court of Appeals, Docket No. 03-7332 (2d Cir. March 15, 2004).

       Pursuant to General Statutes § 53a-70 (a) (1), a defendant is guilty of sexual assault in the first degree if he “compels another person to engage in sexual intercourse by the use of force . . . or by the threat of use of force . . . which reasonably causes such person to fear physical injury. . . .”
      General Statutes § 53a-65 (2) defines “sexual intercourse” as including “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. . . .” (Emphasis added.)

       Although the defendant asserts that the challenged evidence related to Ms conviction of both crimes, he has not explained how the evidence, if wrongfully admitted, affected his conviction for kidnapping.

       The defendant’s pro se status does not excuse his failure to object. “Along with the right to represent oneself ... is the responsibility to comply with the rules of court and the procedures established therein. . . . [T]he pro se defendant is not treated significantly different from the opposition. . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 303, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001).

       The defendant did not testify.

       The prosecutor, after eliciting Officer B’s detailed description about the victim’s report of her assault, asked him to evaluate the conflicting testimony of the defendant and the victim as to what had transpired on December 12, 2000. The following colloquy occurred:
      “[The Prosecutor]: Did you feel [the defendant] was being evasive during the questioning to you?
      “[The Witness]: [I]t appeared to me from my experience that he was unsure of what he was saying, somewhat making up as he was going along through the statement.
      “[The Prosecutor]: And did you find him a credible witness giving this statement?
      “[The Witness]: No, sir.
      “[The Prosecutor]: Based on your training and experience as an officer, did you believe [the victim’s] version or [the defendant’s] version?
      “[The Witness]: [The victim],
      “[The Prosecutor]: And during the course of your police work, have you had the opportunity to interview victims of sexual assaults in the past?
      “[The Witness]: Yes, I have, sir.
      “[The Prosecutor]: And did you have any reason to doubt her version of the events?
      “[The Witness]: No, I didn’t.”
      In addition to violating State v. Singh, supra, 259 Conn. 706-708, this questioning also improperly called upon Officer B to testify as if he were an expert, when he had never been so qualified. This testimony might have led the jury to assign additional weight to all of Officer B’s testimony.

       In addition to his prosecutorial misconduct claim, the defendant also faults the trial court for allowing this testimony on evidentiary grounds. Because the defendant did not object to this testimony at trial, he asks for review under Golding or the plain error doctrine. We find that neither doctrine is implicated and therefore decline to review his claim. See State v. Toccaline, 258 Conn. 542, 549-53, 783 A.2d 450 (2001).

       In his initial closing argument, the prosecutor told the jury: “The case is not about sympathy. I’m not asking you to have sympathy for [the victim]. I’m asking you to consider her testimony, her demeanor, how she acted on the [witness] stand, her truthfulness. She has no ax to grind in this case. She doesn’t benefit in any way [from] the outcome, guilty or not guilty. She’s here to tell the truth. The state, through myself and my witnesses, are here to just to tell the truth and place the evidence that we have. [The defendant] has the bias in this case. He’s the defendant. He has the interest in the outcome. His credibility must be viewed among those with all the witnesses.” (Emphasis added.)

       The court instructed the jury in relevant part: “You are the sole judges of the facts. It is your duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what the ultimate facts are. . . .
      “The evidence from which you are to decide what the facts are consists of the sworn testimony of witnesses, both on direct and cross-examination regardless of who called the witness, and the exhibits that have been received into evidence. In reaching your verdict, you should consider all the testimony and exhibits received into evidence. . . . What [the attorneys] have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. . . .
      “Credibility of witnesses. In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness’ testimony. In making that decision, you must take into account a number of factors, including the following:
      “1. Was the witness able to see or hear or know the things
      about which that witness testified?
      “2. How well was the witness able to recall and describe those things?
      “3. What was the witness’ manner while testifying?
      “4. Did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case?
      “5. How reasonable was the witness’ testimony considered in light of all the evidence in the case?
      “6. And, was the witness’ testimony contradicted by what the witness has said or done at another time or by the testimony of other witnesses or by other evidence. . . .
      “Police officials have testified here in this case. You must decide the credibility of police officials in the same way and by the same standards as you would evaluate the testimony of any ordinary witness. The testimony of a police official is entitled to no special or exclusive weight merely because it comes from a police official. . . .
      “Again, it is your duty to resolve any conflicts in the testimony and find where the truth lies. In doing so, the credibility of the witnesses is entirely within your province as jurors. ...”

       At oral argument, the state also argued that the constancy of accusation evidence should be considered in our evaluation of the state’s case. Ornease law firmly holds, however, that this evidence is not to be used for substantive purposes. See State v. Troupe, supra, 237 Conn. 304.

       The defendant’s December 12, 2000 statement, as recorded by police, reveals the following: “[The defendant] then asked the female victim if he could perform oral sex on her and he stated she agreed, so he pulled her pants down to her ankles. After approximately 10 minutes, [the defendant] asked the female victim if he could make love to her and she stated yes. While they were making love, [the defendant] stated the female victim changed her mind, stating it wasn’t the right time and that they shouldn’t be doing that. [The defendant] stated he stopped and got back into the driver’s seat while they were making love.”
      The next day, the defendant made the following statement, as recorded by the police. “[The defendant] stated among other things that the female victim voluntarily agreed to him performing oral sex on her as well as sexual intercourse. [The defendant] stated that when the female victim stated, T don’t think this is a good idea,’ he immediately stopped. [The defendant] stated, ‘I came a little bit inside her.’ ” (Emphasis added.)
      The only relevant addition to the defendant’s second statement to police was that he ejaculated. We do not view this admission, however, as altering his previous statement that he and the victim engaged in sexual intercourse for a brief period of time before the victim asked him to stop.


source: Caselaw Access Project

license: Public Domain

text:
    MARJORIE PARKHURST, CONSERVATRIX (ESTATE OF MATTHEW SQUINOBAL) v. PATRICIA A. WILSON-COKER, COMMISSIONER OF SOCIAL SERVICES
    (AC 24117)
    Lavery, C. J., and DiPentima and Peters, Js.

      Argued February 25 —
    officially released May 11, 2004

      Matthew J. LeFevre, for the appellant (plaintiff).

      Eileen Meskill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Robert J. Lynch, assistant attorney general, for the appellee (defendant).
   Opinion

PETERS, J.

Special needs trusts are trusts designed to supplement the benefits that persons with a disability are entitled to receive under various federal and state statutes. Congress has decided that the assets in a special needs trust do not affect a needy person’s eligibility for supplemental security income under the federal Social Security Act. See 42 U.S.C. §§ 1382b (c) (1) (C) (ii) (IV) and (e) (5), and 1396p (d) (4) (A). The principal issue in this case, a question of first impression, is whether our legislature, in enacting General Statutes § 17b-600, which establishes an optional state funded program of supplemental income assistance, intended our program to follow the federal model with respect to special needs trusts.

Section 17b-600 requires the department of social services (department) to adopt regulations “consistent with the requirements of Title XVI of the Social Security Act pertaining to programs of optional state supplementation . . . .” General Statutes § lTb-600. We must decide whether this provision forbids the department from departing from federal law by counting the assets in a special needs trust in determining eligibility for our state funded program. The trial court concluded that our stricter state eligibility requirements are enforceable. We agree and affirm its judgment.

The plaintiff, Marjorie Parkhurst, is the conservatrix for her son, Matthew John Squinobal, who is disabled because of mental retardation. The plaintiff is also the trustee of a special needs trust for the benefit of her son. The defendant is the commissioner of social services (commissioner).

The plaintiff appealed to the trial court from a decision by a hearing officer of the department that the establishment of a special needs trust made her son ineligible to continue receiving state supplemental income assistance for a significant number of years. The commissioner defended the validity of the regulations promulgated by the department that impliedly authorized discontinuation of state benefits under these circumstances.

The trial court dismissed the plaintiffs administrative appeal. It concluded that the department properly had interpreted the applicable federal and state statutes and regulations to limit her son’s eligibility for state supplemental income benefits in light of the funds in the special needs trust. It further concluded that a delay in the issuance of a decision by the department’s hearing officer did not require approval of the plaintiffs petition for reinstatement of benefits. We agree.

In the plaintiffs appeal from this adverse judgment, she raises three issues. She maintains that the trial court improperly (1) interpreted § 17b-600 to authorize state supplemental assistance eligibility rules that conflict with federal supplemental security income eligibility rules, (2) applied § 17b-600 and § 3025.05 of the department’s Uniform Policy Manual to hold that the creation of a special needs trust by means of a transfer of funds owned by her son affected his continued eligibility for state supplemental income assistance and (3) upheld a decision by a hearing officer despite noncompliance with statutory and regulatory time limits. Because each of these issues raises a question of law, we have plenary authority to review the merits of the judgment of the trial court. See Del Core v. Mohican Historic Housing Associates, 81 Conn. App. 120, 121-22, 837 A.2d 902 (2004).

I

ELIGIBILITY REQUIREMENTS

In her principal argument on appeal, the plaintiff disputes the validity of the department’s interpretation and application of the state statute and regulations that govern optional state funded supplemental assistance for disabled persons like her son. She maintains that the establishment of a special needs trust on her son’s behalf was irrelevant to his right to continue to receive financial assistance from the department. In her view, § 17b-600, which provides in relevant part that this state program “shall be consistent with the requirements of Title XVI of the Social Security Act pertaining to programs of optional state supplementation,” makes it mandatory for the department to follow comparable federal law in every respect. Federal law disregards special needs funds in the calculation of federal benefits. Like the trial court, we disagree with the plaintiff.

A

The Facts of this Case

The facts underlying the present controversy are undisputed. Since 1997, the plaintiffs disabled son has received both federal supplemental security income benefits and optional state funded supplemental assistance benefits. Together, these two income streams permit him to live in a residential group home.

In 1998, an automobile accident caused the son to suffer severe injuries. As a result, the son received $115,377.56 in settlement proceeds. In 2001, with the approval of the Torrington Probate Court, these settlement proceeds were placed into the Matthew John Squi-nobai Trust Indenture (trust indenture), and the plaintiff was named the trustee of the trust.

The trust is irrevocable. During the son’s lifetime, he is its sole beneficiary. The trust expresses the intent that its funds not displace federal, state or private entitlement or assistance programs.

The trust indenture confers on the plaintiff, as trustee, unlimited discretion to ascertain the special needs of her son and then to use or not use the income or the principal for him in his best interests. That discretion might be, but need not be, exercised to provide additional support, such as therapy sessions, to help her son cope with his disability. It equally well might be exercised to enhance the quality of his life by paying for expensive vacations and entertainment.

We do not mean to suggest that this plaintiff would behave irresponsibly, or, indeed, that a Probate Court knowingly would approve the appointment of an irresponsible person as trustee. Although other trusts often confer similar unlimited discretion on trustees, we are persuaded that trusts that affect the public exchequer warrant particular scrutiny. If the trust fund in this case is enforceable on its own terms, the state will have to continue to support the son financially throughout his lifetime. The enforceability of a special needs trust cannot, as a practical matter, depend on a case-by-case analysis of the extent to which any particular trustee would likely exercise trust discretion properly.

One other aspect of the trust indenture is noteworthy. Even after the son’s death, the state will have no access to any remaining unspent funds in the trust to recoup optional state funded supplemental assistance payments. As federal law permits, the trust provides that, at that time, the trust must reimburse only unrepaid medical assistance benefits. See 42 U.S.C. § 1396p (d) (4) (A); Department of Social Services, Uniform Policy Manual § 4030.80D (6) (Uniform Policy Manual). Any remaining trust funds will be payable “to any one or more individuals or charities” other than the son, his estate or his creditors, in such proportions and amounts, as the son “may appoint by Will” or, in the absence of such appointment, to the son’s “then living heirs-at-law.” Indeed, § 2.1 (1) of the trust indenture expresses the settlor’s intent that, except for medicaid benefits, the trust funds were never to be used for repayment of state benefits received in the past or to be received in the future.

Acting on concerns raised by the establishment of the special needs trust that is at issue in this case, the department notified the plaintiff that as a result of the transfer of the settlement proceeds into the trust, it would discontinue optional state funded supplemental assistance payments for her son as of June 30, 2001. In light of the value of the transferred assets, the department maintained that the son would be ineligible to receive such benefits for a period of 19.23 years.

On September 28,2001, the department held a hearing to consider the plaintiffs objection to the cessation of her son’s state benefits. In a decision dated March 8, 2002, a departmental hearing officer upheld the department’s decision. The trial court, on April 2, 2003, dismissed the plaintiffs appeal from the decision of the departmental hearing officer. This appeal followed.

B

Federal Regulation of Special Needs Trusts

To ascertain the legislature’s intent in requiring the state supplemental income assistance benefits program to be “consistent with” Title XVI of the federal Social Security Act, we follow established principles of statutory interpretation. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003). Because interpretation of this statute raises a novel question of law, it would be inappropriate for us to defer to the department’s view of the intent of the legislature. See MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001); Charette v. Waterbury, 80 Conn. App. 232, 243-44, 834 A.2d 759 (2003), cert. denied, 267 Conn. 910, 840 A.2d 1172 (2004).

Special needs trusts first received special treatment by Congress under the medicaid program, which provides medical care to needy persons. See Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.; Ramey v. Reinertson, 268 F.3d 955, 957-58 (10th Cir. 2001). Since 1993, Congress has excluded assets in special needs trusts from the calculation of eligibility for medicaid benefits. 42 U.S.C. § 1396p (d) (4) (A).

Congressional exclusion of special needs trust assets from eligibility for medicaid benefits is, however, subject to two important limitations. First, the special needs trust indenture must provide that the state will be reimbursed for its medicaid expenditures upon the death of the beneficiary of the trust. Second, the special needs trust may not be funded with assets that are subject to a prior state lien. Pursuant to 42 U.S.C. § 1396k, medicaid recipients must assign to the state any rights the recipients may have to payment of medical care from third parties. A state may enforce a medicaid lien on settlement funds paid by a third party tortfeasor to a medicaid recipient. See, e.g., Cricchio v. Pennisi, 90 N.Y.2d 296, 309, 683 N.E.2d 301, 660 N.Y.S.2d 679 (1997).

In 1999, Congress extended the eligibility consequences of special needs trusts under medicaid to the federal supplemental security income program. See 42 U.S.C. §§ 1382b (c) (1) (C) (ii) (IV) and (e) (5). The supplemental security income program, first enacted in 1972, as Title XVI of the Social Security Act, 42 U.S.C. § 1381 et. seq., was designed “to afford cash assistance for basic necessities (but not medical expenses) to disabled persons who met the resource eligibility requirements.” Ramey v. Reinertson, supra, 268 F.3d 958. Notably, Congress did not require special needs trusts designed to supplement such cash assistance ever to reimburse the state, even after the death of the trust’s beneficiary, for anything other than the medical benefits that the state had provided. The parties have not cited, and we have not found, any explanation of why Congress authorized special needs trusts that give free rein to the beneficiary or, practically speaking, his con-servatrix to enrich personal friends at the expense of the taxpayers who fund social services programs.

It is clear, however, that the funding to which the plaintiff’s son is entitled under the federal supplemental security income program is unaffected by the establishment of the special needs trust in this case. The terms of the special needs trust indenture comply fully with the requirements of federal law. As far as the record shows, the state has not pursued its right to a statutory lien over the settlement proceeds for any purpose.

C

State Regulation of Special Needs Trusts

Connecticut law follows the federal model with respect to the effect of special needs funds on Medicaid eligibility. Uniform Policy Manual, §§ 3028.1ID (1) and 4030.80D (6). The department, however, has taken a contrary position with respect to eligibility for optional state funded supplemental assistance.

The department has not expressed its position directly in any provision in its Uniform Policy Manual. Section 3025 of the Uniform Policy Manual does not, in so many words, exclude the assets in a special needs trust from the calculation of eligibility for optional state funded supplemental assistance. Our legislature, however, in enacting § 17b-600, has authorized the department to administer the supplemental assistance program “in accordance with the regulations and departmental policy manual provisions applicable to the aid to the elderly, aid to the blind and aid to the disabled programs . . . .” General Statutes § 17b-600. The statute omits any cross-reference to regulation of the state medicaid program. We conclude that the statute dispels any implication that medicaid eligibility rules apply to this program. The plaintiff has not seriously argued to the contrary.

D

Consistency with Federal Law

Section 17b-600 requires state law to be “consistent with the requirements of Title XVI of the Social Security Act pertaining to programs of optional state supplementation . . . .” General Statutes § 17b-600. We turn now to an examination of the meaning of this cross-reference.

It is important to note, at the outset, that the statute does not require our state program to match the benefits that are available to the plaintiffs son under federal law. It is, therefore, not sufficient for the plaintiff to establish that, as a matter of federal law, a special needs trust does not affect her son’s eligibility for federal supplemental income.

The issue before us is to determine what our legislature intended when it required state consistency “with the requirements of Title XVI of the Social Security Act pertaining to programs of optional state supplementation. . . .” (Emphasis added.) General Statutes § 17b-600. The commissioner argues that a benefits program that is optional, state funded and state administered may establish its own eligibility criteria for state assistance. The plaintiff maintains, to the contrary, that a state has the authority to do so only if federal regulations expressly permit deviation from federal eligibility requirements. The trial court agreed with the department and so do we.

As the court observed, “[federal statutes or regulations contain little guidance pertaining to eligibility requirements for state supplemental assistance programs.” Nonetheless, we have no better reference point for determining what our legislature intended when it required consistency between state and federal law.

Federal law envisages three possible relationships between federal and state supplemental income assistance programs. First, the federal government may enter into an agreement with the state to have the federal government administer state as well as federal benefits. 20 C.F.R. § 416.2005 (a) and (b). In that case, federal law governs eligibility for both programs. 20 C.F.R. § 416.110 (f). Second, the federal government may enter into a hybrid agreement with the state, under which the federal government administers federal benefits and the state administers supplemental state benefits. In that case, federal law governs federal eligibility and state law governs state eligibility. 20 C.F.R. § 416.2005 (c). Third, without any agreement with the federal government, the state may administer federal and state supplemental income benefits itself. The federal regulations do not specify the eligibility requirements that apply to optional state funded benefits that are entirely state administered.

The parties draw disparate inferences from this gap in the federal regulations. The department infers from regulatory silence that federal law permits the state to establish its own eligibility requirements for optional state funded supplemental assistance. The plaintiff maintains, to the contrary, that only a federal regulation that expressly authorizes the state to enforce its own eligibility mies for state administered programs would permit the state to depart from federal mies for supplemental assistance. We agree with the department. It seems to us illogical that Congress would have intended greater constraints on state eligibility mies for programs that are entirely state administered than for those that are only partially state administered.

The plaintiff offers two rejoinders to this analysis. Neither is persuasive.

First, the plaintiff reminds us that state supplemental income assistance benefits must comply with federal law as a condition of exclusion of these payments from income as that term is defined for the purpose of federal benefits. See 42 U.S.C. § 1382e (a). This argument simply restates the question of what kind of compliance the federal law requires.

Second, the plaintiff deems it significant that the department recently has conformed the regulations governing state supplemental benefits with federal law with respect to payments made to hemophilia patients who contracted the human immunodeficiency virus from blood transfusions. Federal law now excludes such payments from the calculation of eligibility for federal social security benefits. The department has amended its Uniform Policy Manual to provide a similar exclusion for the recipients of state medicaid and supplemental income benefits.

According to the plaintiff, the department’s decision to follow federal law in this respect demonstrates that the department has always been required to follow federal law in every respect. We are not persuaded. If it proves anything, the department’s decision demonstrates the opposite. If the state was already obligated to follow all federal eligibility requirements, it would have been unnecessary to amend departmental regulations in this one instance. Rather, the state’s control over eligibility requirements for state funded supplemental assistance authorizes the department to provide exemptions that it deems to be in the public interest of the residents of this state.

We conclude, therefore, that the trial court properly determined that the special needs trust established by the plaintiff for the benefit of her son is an asset that the department could take into account in determining the son’s eligibility for state supplemental assistance benefits. Federal law permits an optional state funded and state administered benefits program to adopt eligibility criteria that are more stringent than those that govern the parallel federal program. Accordingly, the department’s eligibility rules are “consistent” with federal law, as § 17b-600 requires.

II

TRANSFER

Having determined that the eligibility of the plaintiffs son for continued optional state funded supplemental assistance is a matter of state law, we turn now to the statutory and regulatory rules that govern the transfer of property by the recipient of such assistance. The plaintiff maintains that the transfer to the special needs trust of the proceeds of the settlement with the third party tortfeasor was not the kind of transfer that impairs her son’s continued eligibility for state supplemental assistance benefits.

Under General Statutes § 17b-600 and § 3025.05 of the Uniform Policy Manual, any transfer of assets by a recipient of state supplemental assistance will affect his or her continued eligibility for state funded benefits unless the transfer satisfies specified conditions. In the absence of evidence that the transaction was “exclusively for some other purpose,” our law presumes that such a transfer was “made for the purpose of establishing [or continuing] eligibility for benefits or assistance . . . .” General Statutes § 17b-600. To prevail in this case, the plaintiff bore the burden of rebutting this presumption. The trial court concluded that she had not done so. We agree.

The plaintiff makes a two part argument in support of her claim that the transfer of the settlement proceeds to the special needs trust was made for a legitimate purpose. She maintains that (1) the transfer of the proceeds to the special needs trust was not a prohibited transfer because the trust was established for her son’s benefit and (2) the funding of the trust complied with the criteria that Uniform Policy Manual § 3025.10 identifies as sufficient to rebut a presumption of impropriety. We are not persuaded.

Prehminarily, the plaintiff relies on Dept. of Social Services v. Saunders, 247 Conn. 686, 705, 724 A.2d 1093 (1999), for the proposition that the establishment of a special needs trust for a close family member is not a transfer at all. That case involved the interpretation of two statutes that authorize probate courts to create and to fund special needs trusts with settlement proceeds. See General Statutes §§ 45a-655 (e) and 45a-151. Like the trial court, we are persuaded that Saunders has no bearing on the effect that special needs trusts have on continued eligibility for supplemental income assistance under § 17b-600.

Alternatively, the plaintiff maintains that she has met the evidentiary criteria that § 3025.10 of the Uniform Policy Manual has established as sufficient to validate her son’s continued eligibility for state supplemental income assistance. The regulation requires a transferee to establish that (1) the transferor received fair market value, (2) the transfer was for a purpose other than retaining eligibility for state support and (3) the trans-feror retained sufficient funds for his foreseeable needs. Uniform Policy Manual, supra, § 3025.10. We agree with the department that the plaintiff failed to establish that the special needs trust complied, in any respect, with the requirements of § 3025.10.

The plaintiff asks us to overturn the trial court’s factual findings that she failed to present evidence that would establish the legitimacy of the transfer in this case. We overturn a trial court’s factual findings only if these findings are clearly erroneous. See Giametti v. Inspections, Inc., 76 Conn. App. 352, 356, 824 A.2d 1 (2003).

We uphold each of the findings that the trial court made in concluding that the plaintiff had not established the propriety of the transfer of funds to the special needs trust. The trial court reasonably could find that the special needs trust (1) did not give fair market value in exchange for the settlement proceeds, because the son’s receipt of benefits therefrom was entirely discretionary, (2) was intended to affect eligibility for state benefits because the trust indenture candidly so states and (3) did not leave the son with sufficient funds for his needs because he currently seeks reinstatement of his supplemental assistance benefits. Indeed, on the present record, it is hard to see how the court could have made different findings.

We conclude, therefore, as did the trial court, that the use of settlement funds from a third party tortfeasor to establish a special needs trust for the plaintiffs son was a transfer that made the son ineligible for continued state supplemental assistance benefits. It is entirely appropriate for this state to create a presumption that a beneficiary of state aid must use his own resources, whenever and wherever received, as an offset to state funding of benefits to which he would otherwise be entitled. Because this presumption is not always applicable, our law defines the facts that must be established to legitimize a transfer of assets by a person receiving state supplemental assistance benefits. In this case, the plaintiff did not make the requisite factual showing. We agree with the trial court that, under such circumstances, the commissioner properly decided to suspend the son’s eligibility for income assistance.

Ill

DELAY

Even if the plaintiff cannot prevail on the substantive merits of her appeal from the discontinuation of supplemental income benefits for her son, she maintains that, for procedural reasons, her son is entitled to the reinstatement of his benefits. She points to a number of procedural defects in the department’s adjudication of her administrative appeal. Like the trial court, we are persuaded that these administrative missteps do not afford her a right to the relief that she seeks.

The plaintiff makes three claims. In her view, she is entitled to a ruling reinstating, her son’s supplemental income benefits because (1) the hearing officer failed to schedule a hearing within the thirty day period established by General Statutes § 17b-60, (2) the hearing officer failed to issue her decision within the sixty day time period established by General Statutes § 17b-61 (a) and (3) the department failed to provide formal notification to the plaintiff of the proposed discontinuation of her son’s benefits, as Uniform Policy Manual §§ 3025.30A and P-3025.25 require.

The department does not dispute the plaintiffs factual assertions. It does, however, dispute the significance of the defaults of which the plaintiff complains. It notes that neither she nor her son was prejudiced by departmental delay because the son continued to receive benefits until the hearing officer denied the plaintiffs appeal. Furthermore, the plaintiff not only did not object to the delay in the hearing but also agreed to a continuance. Finally, the plaintiff has not alleged that the departmental delays adversely affected her ability to make a full presentation on behalf of her son.

The plaintiff nonetheless argues here, as she did at trial, that § 17b-60 makes it mandatory for a hearing officer to hold a hearing in a contested case within thirty days of the department’s receipt of a request for a hearing. In this case, the request was filed on June 25, 2001, and the hearing was not held until September 28, 2001. In the plaintiffs view, this delay (1) deprived the hearing officer of subject matter jurisdiction to hear her appeal and (2) required her objection to the discontinuation of benefits to be upheld. We disagree.

The trial court properly held that the failure to hold an administrative hearing within the specified time period did not deprive the hearing officer of jurisdiction to hear the matter. We agree with the court that the plaintiff did not establish that the legislature intended to attach jurisdictional consequences to a delay in holding an administrative hearing. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 269, 777 A.2d 645 (2001). We further agree that the legislature’s use of the word “shall” is not a dispositive indicator of legislative intent to make a time limitation jurisdictional. See Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 690, 674 A.2d 1300 (1996); State v. Trahan, 45 Conn. App. 722, 730-31, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997).

The plaintiff further argues that the administrative hearing officer’s failure to issue her decision within the sixty day time period established by § 17b-61 (a) makes the decision a nullity. The trial court did not address this claim on its merits because, by failing to brief or to argue it, the plaintiff was deemed to have abandoned it. As best we can tell, the plaintiff never filed a motion for articulation to supplement the court record.

On appeal, the plaintiff sidesteps the consequences of her own procedural default by ignoring its existence. Without any suggestion that the trial court committed plain error in finding this claim to have been abandoned, we decline to review it. See Practice Book § 60-5.

Finally, the plaintiff claims that the discontinuation of her son’s state supplemental income benefits was improper because the department, having failed to provide form W-495A to her, did not give her proper notification of the impending discontinuation. Uniform Policy Manual §§ 3025.30A and P-3025.25 require the department to send such notification.

The trial court noted that the department’s decision repeatedly had been communicated to the plaintiff during the course of the departmental proceedings, at a time when her son was still receiving supplemental income benefits. More importantly, the court observed that the plaintiff “cited no authority for her position, nor has she adequately briefed the matter, other than making the blanket claim of illegality.” As a result, it concluded that this claim, too, had been abandoned.

On appeal, the plaintiffs principal brief is as barren as her trial brief was. In her reply brief, she asserts, for the first time, that the department’s failure to send form W-495A was a violation not only of the department’s regulations but also of her constitutional right to due process. It is an understatement to say that this argument comes too late. Even if we were to review its merits, the plaintiffs claim is frivolous. It assumes, counterfactuaily, that the benefits at issue were discontinued before the plaintiff received notice thereof and before the plaintiff had a fair opportunity to contest the propriety of the discontinuation.

We conclude, therefore, as did the trial court, that the procedural defaults of which the plaintiff complains do not invalidate the decision of the departmental hearing officer or the judgment of the trial court. In this posture of the case, we need not decide whether and when more significant procedural defaults might require the rendering of a judgment to reinstate benefits to which, as a matter of substantive law, a claimant is not entitled.

In sum, we agree entirely with the trial court’s judgment in favor of the commissioner. In its thoughtful opinion, the court dealt properly with each of the issues that the plaintiff has presented on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17b-600 provides in relevant part: “The Commissioner of Social Services shall administer a program of optional state supplementation as provided for by Title XVI of the Social Security Act, as amended, and shall administer the program in accordance with the requirements provided therein. In accordance with the requirements of Title XVI of said Social Security Act, optional state supplementation may be provided to . . . disabled individuals who receive supplemental security income benefits .... Any disposition shall be presumed to have been made for the purpose of establishing eligibility for benefits or assistance unless the individual furnishes convincing evidence to establish that the transaction was exclusively for some other purpose .... The program of optional state supplementation shall be administered in accordance with regulations to be adopted by the Department of Social Services, which regulations shall be consistent with the requirements of Title XVI of the Social Security Act pertaining to programs of optional state supplementation. ...”

       General Statutes § 17b-91 has a similar requirement of consistency with federal law. Although the parties have noted the existence of this section, they have not argued that § 17b-91 requires a different result than does § 17b-600. We therefore will not undertake an analysis of this statute.

       The record does not disclose whether he received other benefits as well.

         The plaintiff alluded, in passing, to this part of the trust indenture in her discussion of the second issue on appeal. Neither party has discussed the relevance of this part of the trust indenture to the issue of continued eligibility for state funding.

       The plaintiff has not challenged the length of time that her son would be disqualified from state supplemental income assistance if we affirm the department’s interpretation of the governing statutes and regulations.

       Although the son’s benefits were reinstated on July 1, 2001, pending a decision of the departmental hearing officer, they were discontinued after the hearing officer’s issuance of that decision.

       The relevant statutory text and the relationship of that text to other statutes and regulations is not plain and unambiguous. We, therefore, need not consider the effect of Public Acts 2003, No. 03-154, § 1. See Jones v. Kramer, 267 Conn. 336, 344 n.4, 838 A.2d 170 (2004).
      Although the plaintiff has provided us with excerpts from the relevant legislative discussions of the bill that later became General Statutes § 17b-600, those excerpts do no more than underscore the legislature’s interest in consistency between federal and state law on supplemental income assistance. The legislators did not purport to define what they meant by requiring our program to be “consistent with [federal] requirements . . . pertaining to programs of optional state supplementation. . . .” General Statutes § 17b-600.

       See Medicare and Medicaid Budget Reconciliation: Hearings on H.R. 2264 Before the Subcommittee on Health and the Environment of the Committee on Energy and Commerce, 103d Cong., 1st Sess. 333^47 (1993); see also 2 Restatement (Third), Trusts § 50, comment (e) (4), p. 314 (2003) (legislative intent of 1993 legislation was to protect community of disabled persons).

       It may be unlikely that any assets will remain in a special needs trust for repayment of medicaid benefits. As this case illustrates, however, accidents can happen at any time.

       See also Nacino v. Chandler, 101 Haw. 473, 486, 71 P.3d 424 (Haw. App. 2002), aff'd, 101 Haw. 466, 71 P.3d 417 (2003); Roberts v. Total Health Care., Inc., 349 Md. 499, 512-13, 709 A.2d 142 (1998); Calvanese v. Calvanese, 93 N.Y.2d 111, 121, 710 N.E.2d 1079, 688 N.Y.S.2d 479, cert. denied sub nom. Callahan v. Suffolk County Dept. of Social Services, 528 U.S. 928, 120 S. Ct. 323, 145 L. Ed. 2d 252 (1999); Payne v. State, 126 N.C. App. 672, 677, 486 S.E.2d 469, review denied, 347 N.C. 269, 493 S.E.2d 656 (1997).

       General Statutes §§ 17b-93 and 17b-94 give the state a statutory lien on the proceeds of causes of action by the beneficiaries of aid under the state supplemental program. There is no indication in the record that, in this case, the state ever tried to enforce its statutory lien. If enforceable, its lien would have taken priority over the subsequent transfer of the settlement funds into the special needs trust.

       See the “Ricky Ray Hemophilia Relief Fund Act of 1998,” Pub. L. No. 105-369, 112 Stat. 3368, which appears, as amended, in 42 U.S.C. § 300c-22.

       The plaintiff has not raised an equal protection argument under either the federal or the state constitutions.

       The plaintiff has not pursued, on appeal, a claim that she made at trial, namely, that in accordance with § 3025.05B of the Uniform Policy Manual, the continuation of her son’s state supplemental assistance benefits is required because “(1) ineligibility would cause undue hardship; or (2) the transferor at the time of the transfer was: (a) incompetent; or (b) unduly influenced into making the transfer.” Uniform Policy Manual, supra, § 3025B.

       Section 2.1 (1) of the trust indenture states that the settlor intended to provide a trust fund for the son’s benefit that would preserve his continued eligibility “for any and all state, federal and/or private entitlement or assistance programs which may be available to him from time to time.”

       We note that she has not requested a new hearing.


author: Per Curiam.

text:
    EMC MORTGAGE CORPORATION v. STEVEN D. GRILLS ET AL.
    (AC 24139)
    Foti, Flynn and West, Js.
    Argued February 23 —
    officially released March 23, 2004
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    ARTHUR COLE v. COMMISSIONER OF CORRECTION
    (AC 24056)
    Foti, Schaller and Flynn, Js.
    Submitted on briefs February 27 —
    officially released March 23, 2004
   Per Curiam.

The appeal is dismissed.


text:
    THOMAS ROGERS v. COMMISSIONER OF CORRECTION
    (AC 23756)
    Foti, Schaller and Flynn, Js.
    Submitted on briefs February 27 —
    officially released March 23, 2004
   Per Curiam.

The judgment is affirmed.


text:
    EARL BONHOTEL v. NANCY BONHOTEL
    (AC 23947)
    (AC 24448)
    Lavery, C. X, and Bishop and West, Js.
    Submitted on briefs February 27 —
    officially released March 23, 2004
   Per Curiam.

The judgment is affirmed.


text:
    IVAN CEPEDA v. COMMISSIONER OF CORRECTION
    (AC 23754)
    Lavery, C. X, and Bishop and West, Js.
    Submitted on briefs February 27 —
    officially released March 23, 2004
   Per Curiam.

The habeas court denied the petition for a writ of habeas corpus and denied the petitioner’s request for certification to appeal to this court. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason or that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.


text:
    FERNANDO SOTO v. COMMISSIONER OF CORRECTION
    (AC 24135)
    Schaller, West and DiPentima, Js.
    Submitted on briefs January 23 —
    officially released April 20, 2004
   Per Curiam.

The habeas court denied the petitioner’s petition for a writ of habeas corpus and his petition for certification to appeal to this court. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994); see also Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.


text:
    EMILIA MEZRIOUI v. NORMAN E. WHITNEY ET AL.
    (AC 24047)
    Flynn, Bishop and McLachlan, Js.
    Argued April 1 —
    officially released April 5, 2004

       April 5, 2004, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

After a careful review of the pleadings, briefs, record and the memorandum of decision in this case, we affirm the thoughtful decision of the trial court.

The judgment is affirmed.


text:
    NORMAN E. WHITNEY v. EMILIA MEZRIOUI ET AL.
    (AC 24510)
    Myrm, Bishop and McLachlan, Js.
    Argued April 1 —
    officially released April 5, 2004

       April 5, 2004, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

In this appeal from the trial court’s denial of a motion to open a judgment of possession, the appellant has furnished this court no basis upon which we are able to determine that the court’s denial of her motion was an abuse of discretion.

The judgment is affirmed.


text:
    ROBERT L. JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 24271)
    Lavery, C. J., and Schaller and McLachlan, Js.
    Submitted on briefs April 2 —
    officially released April 27, 2004
   Per Curiam.

The judgment is affirmed.


text:
    NANCY LEWIS v. EARL BONHOTEL
    (AC 24479)
    Lavery, C. J., and Schaller and McLachlan, Js.
    Submitted on briefs April 2 —
    officially released April 27, 2004
   Per Curiam.

The judgment is affirmed.


text:
    VICTOR GAGLIARDI v. EAGLE GROUP, INC., ET AL.
    (AC 24030)
    Foti, Dranginis and West, Js.
    Submitted on briefs April 2 —
    officially released April 27, 2004
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    MITCHELL JACOB v. COMMISSIONER OF CORRECTION
    (AC 24291)
    Dranginis, Flynn and DiPentima, Js.
    Submitted on briefs April 2 —
    officially released April 27, 2004
   Per Curiam.

The appeal is dismissed.


text:
    JOHNNY BERNARD LEE v. COMMISSIONER OF CORRECTION
    (AC 23886)
    Foti, Dranginis and West, Js.
    Submitted on briefs April 2 —
    officially released April 27, 2004
   Per Curiam.

The habeas court did not abuse its discretion in denying the petitioner’s petition to appeal from the dismissal of his petition for a writ of habeas corpus.

The appeal is dismissed.


author: SCHALLER, J.

text:
    R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD
    (AC 24111)
    Schaller, McLachlan and Peters, Js.

      Argued February 23
    officially released May 18, 2004

      Patricia C. Sullivan, with whom was Barbara M. Schellenberg, for the appellant (defendant).

      Robert A. Fuller, with whom was Raymond F. Ross, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant, the zoning board of appeals of the town of Ridgefield (board), appeals from the judgment of the trial court reversing the board’s decision and directing it to grant the plaintiffs’ application for site plan approval for outdoor display and storage on their property. This is the third action involving the parties that has come before this court on issues related to the plaintiffs’ use of their property. In this appeal, the board claims that the court’s order directing it to grant the plaintiffs’ site plan application is inconsistent with (1) the decision of our Supreme Court in R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 778 A.2d 61 (2001), and (2) the court’s own findings. We reverse a portion of the judgment of the trial court and remand the case to that court with direction to remand it to the board for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to our disposition of the board’s appeal. In July, 1990, the board granted Richard Amatulli, a tenant of the property at that time, a variance that permitted him to conduct “wholesale and retail sales . . . from the [property], unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art.” (Internal quotation marks omitted.) Id., 458. In 1993, the then owners of the property filed an application on behalf of a new tenant, the present corporate plaintiff, R and R Pool and Patio, Inc., to operate a warehouse and an office on the property and to conduct retail sales of “fine outdoor furniture.” The Ridgefield town planning director denied the application, and the board sustained the denial. The board based its decision on the determination that the furniture that the plaintiffs proposed to sell was not the type of merchandise for which the variance had been granted to Amatulli. The owners and the plaintiffs appealed to the Superior Court. The court dismissed the appeal on the ground that the plaintiffs lacked standing, and the owners and the plaintiffs then appealed to this court. We reversed the trial court’s judgment in part and remanded the case to that court for a decision on the merits. R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 684 A.2d 1207 (1996). In 1998, the trial court sustained the plaintiffs’ appeal on the ground that the record was devoid of evidence “to support the board’s conclusion that the plaintiffs’ furniture is not the ‘fíne furniture’ contemplated by the [Amatulli] variance.” R & R Pool & Patio, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 94-316152 (October 26, 1998). The board did not appeal from that decision.

In July, 1995, while their appeal on their first site plan application was pending in the trial court, the plaintiffs filed a second site plan application, this time for the sale of oriental rugs, fíne furniture and art. During the course of the application process, the plaintiffs assured the planning director that they would limit their retail furniture sales to goods that would comply with the Amatulli variance and that they would not sell plastic or mass produced furniture. The first site plan appeal was still pending when, in August, 1995, the planning director approved the plaintiffs’ second site plan application. The site plan approval was subject to the condition that “the limited retail sales will be exactly as permitted and described in the grant of [the Amatulli variance] and further defined in [the board’s memorandum of decision denying the first application for site plan approval].” (Internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 462.

Four months later, and three months after the plaintiffs began selling furniture on the property, the Ridge-field zoning enforcement officer issued a cease and desist order on the ground that the plaintiffs’ sales were not permitted under the Amatulli variance and violated the conditions of their site plan approval. The plaintiffs appealed to the board, and the board sustained the zoning enforcement officer’s order. In so doing, the board determined that the plaintiffs were in violation of the zoning variance that applied to their property because they “applied for [s]ite [p]lan [a]pproval for one use . . . and after receiving it . . . put the property to another use.” (Internal quotation marks omitted.) Id. Specifically, the board noted that the plaintiffs’ site plan application “had been approved for the sale of oriental rugs, fine furniture and art . . . [and] concluded that [t]he outdoor furniture . . . offered for sale at [the plaintiffs’ property] does not meet the aforementioned criteria.” (Internal quotation marks omitted.) Id., 462-63.

The plaintiffs appealed to the Superior Court claiming, inter alia, that the term “fine furniture” was vague and that their rights to due process were violated because they were not told what items of furniture that term did not include. The court heard that appeal at the same time that it heard, on remand, the plaintiffs’ appeal from the denial of their first site plan application. In addition to sustaining the plaintiffs’ appeal in the first site plan case, as previously detailed, the court dismissed their appeal from the board’s decision to sustain the cease and desist order related to the second site plan. In the latter case, the court decided that “the board’s reason for sustaining the order . . . was reasonably supported by the record.” Id., 463. The plaintiffs appealed from that decision.

We reversed the court’s judgment on the basis of the doctrine of collateral estoppel. After the granting of certification, the board appealed to the Supreme Court on the ground that collateral estoppel did not apply because in the trial court’s decision in the first site plan case, the court did not determine the definition of the term “fine furniture” as used in the Amatulli variance. Our Supreme Court agreed with the board’s ar gument, stating that “the meaning of fine furniture as used in the Amatulli variance was neither litigated by the parties nor decided by the trial court in the site plan case. Therefore, the trial court did not render final judgment on an issue that would preclude the board, under the doctrine of collateral estoppel, from ensuring in the cease and desist case that the plaintiffs’ actual use complied with its site plan application to sell fine furniture.” Id., 475. Accordingly, the Supreme Court reversed the judgment and remanded the case to this court with direction to affirm the judgment of the trial court. Id., 481.

The present case involves, inter alia, a different aspect of the Amatulli variance, specifically, whether it allows the plaintiffs to use the exterior of the property for outdoor displays and storage. On December 23, 1998, the plaintiffs filed a third application for site plan approval for specific areas of outdoor displays in which they intended to display a different line of products for sale, i.e., “[f]umiture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock. . . . Spas, hot tubs and pool accessories. . . . Billiard and gaming tables and accessories. . . . Fireplace equipment and grills. . . . Works of art. . . . Christmas and seasonal holiday products.” The planning director denied the application on February 17, 1999. The plaintiffs appealed and, on July 19, 1999, the board upheld the planning director’s decision. The plaintiffs appealed to the Superior Court on numerous grounds. On August 9, 2002, the court sustained the appeal on the ground that there was no substantial evidence indieating that the variance did not include outdoor displays, and because the plaintiffs’ proposed use of the property did not constitute a change from Amatulli’s use and, thus, they were not required to file a new site plan application. The court reversed the board’s decision and directed the board to sustain the plaintiffs’ application. On March 19, 2003, we granted the board’s petition for certification to appeal, and this appeal followed.

The trial court’s scope of review is limited to determining only whether the board’s actions were unreasonable, arbitrary or illegal. See Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). “Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations. ... It is well settled that a court;, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.” (Citation omitted; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470.

The board claims that the court’s order directing it to grant the plaintiffs’ site plan application is inconsistent with the decision of our Supreme Court in R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 456. Specifically, the board argues that the court’s decision ordering it to grant the plaintiffs’ application tacitly approved the sale of specific items that were not permitted under the terms of the Amatulli variance.

The Supreme Court affirmed the judgment of the trial court in the cease and desist case. Id. The trial court’s decision specifically “noted the assurances made by the [plaintiffs] during the application process that there would be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swingsets sold on the property.” (Internal quotation marks omitted.) Id., 463-64. The trial court’s judgment upheld the decision of the board, which was predicated on the fact that the plaintiffs’ property had a variance only “for the sale of oriental rugs, fine furniture and art ... .” (Internal quotation marks omitted.) Id., 462. Accordingly, it is now settled that the plaintiffs’ property is limited by the original variance.

Although the Supreme Court did not determine specifically what constitutes fine furniture, the decision does specifically refer to items that are prohibited under the variance, which are the items listed in the plaintiffs’ letter to the planning director in the cease and desist case. Id., 478. The plaintiffs’ most recent site plan application contains numerous items that would fall into the category of sale items prohibited by the Supreme Court’s judgment. By directing the board to grant the plaintiffs’ application, the court’s reversal of the board’s decision prohibiting outdoor displays had the effect of tacitly approving the sale of specific items that were not permitted under the terms of the variance. Thus, the court’s unqualified order directing the board to grant the plaintiffs’ site plan application is not consistent with the Supreme Court’s ruling and, accordingly, is overbroad.

“When, on a zoning appeal, it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires. ... In the absence of such circumstances, however, the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.” (Citations omitted; internal quotation marks omitted.) Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979). In the present case, once the court reversed the board’s decision to deny the plaintiffs’ application, there was not, as a matter of law, a single conclusion that the board reasonably could reach as to the plaintiffs’ application. Numerous sale items are incorporated in the plaintiffs’ most recent site plan application. The board has discretion to determine the specific items that are permitted by the Amatulli variance. Thus, once the court decided to reverse the board’s decision, it should have gone no further than to sustain the plaintiffs’ appeal. The court’s overbroad order directing the board to grant the plaintiffs’ application deprived the board of its discretionaiy authority. “To hold otherwise would amount to the sanction of an improper judicial encroachment upon the administrative function of the zoning commission.” Id. We conclude that the court improperly directed the board to grant the plaintiffs’ application.

The judgment is reversed only as to the trial court’s order directing the boar d to grant the plaintiffs’ application for site plan approval and the case is remanded to that court with direction to remand the case to the board for further proceedings on the issue of whether the sale of the specific items listed in the application is permitted under the Amatulli variance.

In this opinion the other judges concurred.

       The plaintiffs are R and R Pool and Patio, Inc., Mitchell Ross, David Ross and Philip Ross.

       We need not address the board’s second claim because the first claim is dispositive of the appeal.

       Before the appeal was heal’d, the owners conveyed ownership of the property to the plaintiffs.

       In R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, Superior Court, Docket No. 316152, the court noted that while the plaintiffs’ first site plan application was pending before the planning director, the planning director inquired whether they intended to have any outdoor displays or storage on the premises. The plaintiffs responded that “[t]hey would do whatever the law permitted them to do.” (Internal quotation marks omitted.) Id. The court stated that “[t]he record indicates that this . . . response was met with a great deal of hostility by the board, as the board felt that the plaintiffs were not being completely forthright in their responses. Yet, despite the tension created by the plaintiffs’ response at the hearings, the planning director did not use this response as a reason for the denial of the owners’ site plan application.”

       On appeal, as we will explain, the board challenges the court’s decision only with regard to the items that may be sold. It does not challenge the judgment in any other respect.