text:
    ROBERT SCHRECK v. CITY OF STAMFORD
    (AC 17668)
    O’Connell, C. X, and Spear and Daly, Js.
    Submitted on briefs September 18
    officially released November 17, 1998

      Joseph Lucian Gerardi filed a brief for the appellant (plaintiff).

      Christine C. Murphy filed a brief for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the decision of the workers’ compensation review board (board), dismissing his appeal to the board as untimely. On appeal to this court, the plaintiff argues that the board improperly concluded that (1) the plaintiffs appeal was not timely filed, (2) meaningful notice was sent to him and (3) certified mail returned receipt requested constituted meaningful notice. We reverse the decision of the board.

The following facts are relevant to the disposition of this appeal. The plaintiffs claim for workers’ compensation arising out of a work-related motor vehicle accident was voluntarily accepted by the defendant. The defendant, the city of Stamford, paid for the plaintiffs medical and indemnity benefits. Subsequently, hearings were held before a workers’ compensation commissioner to determine whether the defendant was entitled to a credit for amounts the plaintiff received from settlements with third parties.

The commissioner issued his decision in favor of the defendant on March 29,1996, and sent notice to counsel for both parties on the same day. Notice was never sent directly to the plaintiff. Thirteen days later, on April 11, 1996, the plaintiff filed a petition for review of the commissioner’s decision. On May 1,1996, the defendant filed a motion to dismiss the appeal on jurisdictional grounds, claiming that the appeal was filed more than ten days after the entiy of the commissioner’s decision.

The board heard oral argument on both the motion to dismiss and the merits of the appeal, and then dismissed the appeal as untimely. On appeal to this court, the plaintiff contends that the board improperly dismissed his appeal as untimely. We agree. The only issue before this court is whether the appeal period began to run when the commissioner sent notice of the findings and award to the plaintiffs counsel. We conclude that it did not.

It is the sending of notice, and not the receipt thereof, that starts the appeal period running. Conaci v. Hartford Hospital, 36 Conn. App. 298, 302, 650 A.2d 613 (1994). More on point, Vega v. Waltsco, Inc., 46 Conn. App. 298, 302, 699 A.2d 247 (1997), addressed the issue of whether notice of a workers’ compensation decision must be sent to counsel or to the plaintiff to trigger the commencement of the appeal period.

In Vega, the plaintiff suffered a back injury in the course of his employment and entered into a voluntary agreement concerning workers’ compensation benefits. Thereafter, a hearing was held on subsequent claims raised by the plaintiff. Id., 299-300. Notice of the commissioner’s findings and award was sent to the plaintiff rather than to the plaintiffs counsel. This court held that the notice to the plaintiff was adequate to commence the appeal period. Furthermore, this court stated that the appropriate party to receive such notice was in fact the plaintiff and not the plaintiffs attorney.

The Vega court gave significant deference to the legislative intent of General Statutes § 31-301 (a), which led the court “to the conclusion that the legislature intended that notice of workers’ compensation matters be sent directly to parties and not to counsel.” Vega v. Waltsco, Inc., supra, 46 Conn. App. 302. The court acknowledged that the Workers’ Compensation Act, General Statutes § 31-275 et seq., could have contained a provision that expressly required that notice of a judicial decision be given to counsel, but it does not. Vega v. Waltsco, Inc., supra, 301.

Vega supports the proposition that workers’ compensation proceedings are different from trial court proceedings and are intended to provide swift compensation for an injury without the complexities of litigation. It is clear from Vega that the procedure by which a lawsuit is handled in the court system does not apply in workers’ compensation matters.

In sum, this court determined in Vega that in workers’ compensation matters, notice must be sent directly to the plaintiff in order for the appeal period to commence. The record here does not show that notice was ever sent to the plaintiff. Because the appeal period did not commence when the commissioner sent notice to the plaintiffs counsel, the appeal period never began to run, and the plaintiffs appeal was, therefore, not late.

The decision of the workers’ compensation review board is reversed and the case is remanded with direction to deny the defendant’s motion to dismiss and for further proceedings consistent with this opinion.

       Because our resolution of the first issue is dispositive as to this appeal, we need not review the remaining issues on appeal.

       The details of the claim for credit are not relevant to this appeal.

       General Statutes § 31-301 (a) provides: “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    ERIC J. YOUNGQUIST v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 17540)
    Foti, Landau and Spear, Js.
    Argued September 24
    officially released November 17, 1998

      Eric J. Youngquist, pro se, the appellant (plaintiff).

      VictorR. Perpetua, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Gregory T. D’Auria, assistant attorney general, with whom, on the brief, 'were Richard Blumenthal, attorney general, and Christopher L. Levesque, assistant attorney general, for the appellee (defendant department of banking).
   Opinion

FOTI, J.

The pro se plaintiff, Eric J. Youngquist, appeals from the judgment of the trial court denying his motion for fees and expenses filed pursuant to General Statutes § 4-184a (b). He claims that the trial court improperly (1) concluded that the defendant freedom of information commission (commission) had substantial justification for its action and (2) denied his motion for reasonable fees and expenses, including the value of his time as a pro se litigant. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. After the state department of banking (department) denied his request for the names and addresses of certain department employees, the plaintiff filed an appeal with the commission, seeking disclosure of the names and addresses. Following hearings on the matter, the commission ordered such disclosure, but only with respect to those department employees who had not objected to disclosure. The plaintiff appealed from that decision to the trial court, which ordered the release of the names and addresses of all the department employees requested by the plaintiff. The department released the information as ordered. The plaintiff thereafter filed a motion for fees and expenses pursuant to § 4-184a (b).

The trial court denied the plaintiffs motion for fees and expenses and noted, in full: “Motion denied. [The commission] had substantial justification for its action pursuant to [the] decision in West Hartford v. Freedom of Information Commission, 218 Conn. 256 [588 A.2d 1368] (1991).” Following the trial court’s ruling, the plaintiff did not seek an articulation. Therefore, as a preliminary matter, we must determine whether the record is adequate for our review of the plaintiffs claims.

In general, “[t]he decision to award attorney’s fees for unjustified agency actions is within the discretion of the trial court. See General Statutes § 4-184a (b); Labenski v. Goldberg, 41 Conn. App. 866, 871, 678 A.2d 496, cert. denied, 239 Conn. 910, 682 A.2d 1002 (1996). Thus, § 4-184a (b) provides that the ‘court may, in its discretion,’ award reasonable fees to the prevailing party if the court determines that the agency acted ‘without any substantial justification.’ ” (Emphasis in original.) Burinskas v. Dept. of Social Services, 240 Conn. 141, 154, 691 A.2d 586 (1997).

Our Supreme Court has “concluded that substantial justification . . . connotes reasonableness or a reasonable basis in law or fact . . . [and has] construed § 4-184a (b) as requiring an action that is entirely unreasonable or without any reasonable basis in law or fact.” (Citation omitted; internal quotation marks omitted.) Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 401, 709 A.2d 1116 (1998). Therefore, in reviewing the plaintiffs claim that the trial court improperly found that the commission had “substantial justification” for its action, we must determine whether the trial court properly concluded that the commission had a reasonable basis in both law and fact to deny the plaintiffs request. See McDonald v. Rowe, 43 Conn. App. 39, 42-43, 682 A.2d 542 (1996).

Because there were no findings of fact made by the trial court, however, we have nothing to review to determine whether the facts are sufficient to support the conclusion that “substantial justification” existed for denying the plaintiffs request for disclosure. In other words, we cannot determine whether there was a “reasonable basis in fact” for the action taken by the commission. We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review. Practice Book § 61-10, formerly § 4007. “[W]e cannot render a decision without first having specific findings of fact to determine the basis of the court’s ruling.” (Internal quotation marks omitted.) Gorneault v. Gorneault, 34 Conn. App. 923, 924, 642 A.2d 734, cert. denied, 231 Conn. 911, 648 A.2d 152 (1994).

We do not seek a return to the onerous “finding system.” Nevertheless, because we have not been provided with the trial court’s factual basis for its ruling, we cannot reach the issue of whether the trial court acted properly. To review this claim, we would have “to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998). We therefore decline to review this matter.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-184a (b) provides in relevant part: “In any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the Superior Court under said section taken in accordance with section 51-197b, the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.”

       In addition to the commission, the state department of banking, an intervening party, is also a defendant. While the department of banking is mentioned in the plaintiffs brief, the plaintiff focuses exclusively on whether the trial court improperly determined that the commission itself had substantial justification for finding that disclosure was not required. The plaintiff has failed to articulate adequately any argument as to the impropriety of the action by the department of banking or the trial court’s review of that action. “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).

       The plaintiffs motion requested a total of $5638.97. That figure included compensation for time spent appealing his case to the commission and the trial court at a rate of $60 per hour, as well as for expenditures for mileage, copies, parking, postage and other miscellaneous expenses.

       The trial court filed both an original memorandum of decision, reversing the commission’s decision, and a memorandum of decision on the commission’s motion to reargue, neither of which made specific findings as to the issue of substantial justification.

       “Prior to 1979, the memorandum of decision was relatively unimportant, and instead an elaborate and complicated system of findings was used to provide a mechanism for appellate review. W. Horton, ‘The Connecticut Supreme Court—On Becoming Supreme Again,’ 52 Conn. B.J. 45, 51 (1978). The process for findings of facts included requests for findings, proposed draft findings, counterfindings, findings, motions to correct the findings, and the bill of exceptions. Id. This system had been in effect since 1830. See State v. Rios, 30 Conn. App. 712, 716-17, 622 A.2d 618 (1993) (O’Connell, J., concurring); M. Tyler, ‘The Finding of Facts in Connecticut,’ 4 Conn. B.J. 265, 265-67 (1930). This system often caused the trial judge to pore over the transcripts months or years after the trial, causing lengthy delays for taking an appeal. W. Horton, supra, 51.” Lauer v. Zoning Commission, 246 Conn. 251, 260, 716 A.2d 840 (1998).

       Because the first issue is dispositive, we do not find it necessary to address the second issue.


text:
    DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 17495)
    O’Connell, C. J., and Foti and Spear, Js.

      Submitted on briefs September 25
    officially released November 24, 1998

      Mitchell W. Pearlman, general counsel, and Victor R. Perpetua, commission counsel, filed a brief for the appellant (named defendant).

      Richard Blumenthal, attorney general, and Henri Alexandre, assistant attorney general, filed a brief for the appellee (plaintiff).
   Opinion

The defendant freedom of information commission (commission) appeals from the judgment of the trial court determining that certain information was exempt from disclosure under the Freedom of Information Act, General Statutes § l-18a et seq. The commission claims that the trial court improperly (1) concluded that the records requested were exempt from disclosure pursuant to General Statutes § 1-19 (b) (3) (C), (2) substituted its judgment for that of the commission and thus failed to follow the applicable scope of judicial review in administrative appeals and (3) rendered an advisory opinion that was not based on the actual controversy. We agree with the commission’s first claim and, therefore, reverse the judgment of the trial court.

On July 6,1995, Ramesh Mali, a member of the Nepalese Special Olympics team, was reported missing while swimming at Hammonasset Beach state park in Madison. On July 10, 1995, after an extensive rescue and recovery effort by state and federal agencies, Mali’s body was found off Meigs Point. An autopsy conducted the following day determined that the cause of Mali’s death was asphyxia due to submersion.

Immediately following the incident, the complainants requested access to the investigative reports and records generated by the plaintiff concerning Mali’s disappearance. By letter dated July 12,1995, the plaintiff indicated that the complainants’ request for access was being reviewed and later notified the complainants that their request was denied because the investigation into the incident had not yet been completed. The complainants requested relief from the commission.

A hearing was held by the commission on January 24, 1996. In its final decision, the commission found that the records requested by the complainants were public records within the meaning of General Statutes §§ l-18a (d) and 1-19 (a). Additionally, it found that portions of the reports dated on or after August 16, 1995, indicated that the investigation into Mali’s drowning was closed and denoted that there was no criminal aspect to the incident. The commission determined that because the plaintiff no longer treated the incident as a potentially criminal matter as of August 16, 1995, it should have released any signed witness statements on that date. The commission further concluded that the plaintiff had failed to sustain its burden of demonstrating that the remainder of the reports were exempt from disclosure pursuant to § 1-19 (b) (3) and, therefore, should have provided the complainants with copies of such records as soon as they were prepared.

The plaintiff appealed to the trial court from the commission’s decision. The trial court determined that there was little or no evidence presented that a crime had been committed and that the plaintiff had, as early as July 19, 1995, foreclosed the possibility of a potential prosecution.* *** The court concluded, however, that all of the requested reports were exempt from disclosure under § 1-19 (b) (3) (C) because the investigation was conducted as if a crime may have been committed. The trial court found that the plaintiff had satisfied the statute by initially treating the matter as “potentially criminal.” The trial court concluded by finding that as long as there is a “good faith basis for the assertion” that an investigation is potentially criminal in nature and that a possible prosecution will ensue, disclosure in the future would not be required.

“Judicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA]. . . . We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 430, 710 A.2d 801 (1998).

“Conclusions of law reached by the administrative agency must stand if . . . they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” Board of Labor Relations v. Freedom of Information Commission, 43 Conn. App. 133, 137, 682 A.2d 1068 (1996), aff'd, 244 Conn. 487, 709 A.2d 1129 (1998). “The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” (Internal quotation marks omitted.) Windham v. Freedom of Information Commission, 48 Conn. App. 522, 526, 711 A.2d 738, cert. denied, 245 Conn. 913, 718 A.2d 18 (1998). Neither we nor the trial court may retry the case or substitute our own judgment for that of the commission. See Shew v. Freedom of Information Commission, 44 Conn. App. 611, 616, 691 A.2d 29 (1997), aff'd, 245 Conn. 149, 714 A.2d 664 (1998).

Section 1-19 (b) (3) (C) creates an exemption to the disclosure otherwise required by the Freedom of Information Act. Under that exemption, disclosure is not required of “records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records . . . would result in the disclosure of . . . information to be used in a prospective law enforcement action if prejudicial to suck action . . . .” (Emphasis added.) General Statutes § 1-19 (b) (3) (C). The statute, therefore, requires an evidentiary showing (1) that the records are to be used in a prospective law enforcement action and (2) that the disclosure of the records would be prejudicial to such action.

In this case, the record discloses, as the commission correctly points out, that the plaintiffs evidentiary claim had its basis in a showing that the completed records had not yet been reviewed by the division of criminal justice and that the office of the state’s attorney had not yet closed the case. The statute, however, does not require that an investigation be closed before disclosure is required. Additionally, the statute is not satisfied and, consequently, information is not exempted from disclosure by the mere good faith assertion that the matter to which the information pertains is potentially criminal. As we have stated, there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action.

The trial court improperly concluded, therefore, that “the law does not require disclosure of records of investigations where it is not yet known if a crime has been committed or whether a prosecution will ensue, as long as there is a good faith basis for the assertion.” The trial court, misinterprets the clear language of the statute.

The judgment is reversed and the case is remanded with direction to render judgment consistent with this opinion.

In this opinion the other judges concurred.

       The defendants Tracey Thomas and T. Dennie Williams, staff reporters, and the Hartford Courant were the complainants in this matter before the commission. Only the commission has appealed. The commission is a state agency empowered to investigate alleged violations by public agencies of the Freedom of Information Act, General Statutes § l-18a et seq.

       General Statutes § 1-19 (b) provides in relevant part: “Nothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (C) information to be used in a prospective law enforcement action if prejudicial to such action . . . .”

       Because we conclude as we do on this issue, we find it unnecessary to address the other issues raised by the commission.

       See footnote 1.

       All records concerning the entire incident were eventually made available to the complainants on or about November 8, 1995. Although these records were provided prior to the hearing, we conclude that this matter is not moot. “[WJhere an order issued by the commission is prospective in nature and impacts obligations of the plaintiff in the future with respect to disclosure requests from members of the public, an appeal from that order is not moot even though the requested documents were voluntarily disclosed by the plaintiff prior to the commission’s decision.” Windham v. Freedom of Information Commission, 48 Conn. App. 522, 525 n.4, 711 A.2d 738, cert. denied, 245 Conn. 913, 718 A.2d 18 (1998).

       In its brief, the plaintiff states: “The plaintiff does agree with the defendants, however, that the trial court could have sustained the appeal in view of the conclusions of law it reached.”

       The commission found that from the outset of the investigation, the plaintiff treated it as a potential criminal matter, but abandoned that view as of August 16, 1995.


author: HENNESSY, J.

text:
    LISABETH WEISS v. CHESEBROUGH-PONDS USA COMPANY ET AL.
    (AC 17684)
    O’Connell, C. J., and Hennessy and Daly, Js.
    Submitted on briefs September 18
    officially released November 24, 1998

      Lucas D. Strunk filed a brief for the appellants (defendants).

      Carolyn A. Comerford filed a brief for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant employer, Chesebrough-Ponds USA Company (Chesebrough), and its defendant workers’ compensation insurance carrier, Sedgwick James of Connecticut, appeal from the decision of the workers’ compensation review board (board) affirming the commissioner’s finding and award in favor of the plaintiff, Lisabeth Weiss. On appeal, the defendants claim that the board improperly affirmed the decision of the commissioner in that the commissioner (1) failed to find the material and necessary facts to support a conclusion of compensability and (2) made an impermissible inference such as to allow a conclusion of compensability to stand. We affirm the board’s decision.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiff was employed at Chesebrough from November, 1985, until August, 1986, and then again from April, 1988, until September, 1993. During the plaintiffs first period of employment, she worked as a microfilm operator and an order processor. During her second period of employment, she was an order processor before becoming a customer service representative in April, 1989.

While working as a customer service representative, the plaintiff began experiencing pain in both of her hands. She thereafter filed a claim for workers’ compensation benefits, alleging that the repetitive use of keyboards required by her various positions at Chesebrough had caused her to develop bilateral carpal tunnel syndrome. Chesebrough denied that claim and maintained that her injury did not arise out of her employment. On July 24, 1996, the commissioner awarded workers’ compensation benefits to the plaintiff and, thereafter, the defendants appealed to the board. On September 23,1997, the board affirmed the commissioner’s decision that the plaintiffs injuries were related to her employment duties at Chesebrough. This appeal followed.

“As a preliminary matter, it is important to note the precedential value of opinions of the commissioners of the workers’ compensation review board. General Statutes § 31-278 sets forth the powers and duties of commissioners. Pursuant to that section, commissioners shall have all powers necessary to enable [them] to perform the duties imposed upon [them] by the provisions of [the Workers’ Compensation Act] .... The agency’s practical construction of the statute, if reasonable, is high evidence of what the law is. ... We accord great deference to the construction given to [General Statutes § 31-349] by the commissioner and the review division because they are both charged with its enforcement. . . . Furthermore, [o]ur review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing.” (Citations omitted; internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 48 Conn. App. 474, 477-78, 710 A.2d 1374, cert. granted on other grounds, 245 Conn. 912, 718 A.2d 17 (1998).

“At the outset, we must determine the appropriate standard of review when a decision of a commissioner is appealed to the compensation review [board]. A decision of a commissioner granting or denying an award may be appealed to the [board] pursuant to General Statutes [Rev. to 1987] § 31-301 (a), which provides in pertinent part: At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the [board] .... The compensation review [board] shall hear the appeal on the record of the hearing before the commissioner ....

“It is clear that under General Statutes § 31-301 (a) and § 31-301-8 of the Regulations of Connecticut State Agencies the review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the review [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts.” (Emphasis in original; internal quotations marks omitted.) Six v. Thomas O’Connor & Co., 235 Conn. 790, 797-98, 669 A.2d 1214 (1996).

I

Chesebrough first claims that the commissioner failed to find the material and necessary facts to support a conclusion of compensability, specifically, the extent of the plaintiffs usage of the keyboard. In the present case, we conclude that there is sufficient evidence in the record to demonstrate that the commissioner did find the material and necessary facts necessary to support a conclusion of compensability.

The commissioner is the trier of fact, and “[t]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Id., 798-99, quoting Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). While there was conflicting testimony as to how much work the plaintiff actually performed on a keyboard, it is clearly within the commissioner’s discretion to choose between conflicting testimony. “It matters not that the basic facts from which the [commissioner] draws this inference are undisputed rather than controverted. ... It is likewise immaterial that the facts permit the drawing of diverse inferences.” (Citation omitted; internal quotation marks omitted.) Six v. Thomas O'Connor & Co., supra, 799. A review of the record, in particular, the commissioner’s finding and award dated July 24, 1996, reveals that the commissioner specifically found that the plaintiffs position as an order processor involved extensive keyboard usage and that her work as a customer service representative could involve computer keyboard usage.

“Because we are required to afford great deference to the commissioner’s conclusion . . . we must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence.” Id., 801. The commissioner’s conclusion is sustainable by the underlying facts in this case, and we refuse to disturb his conclusion.

II

Chesebrough next claims that the commissioner made an impermissible inference to allow a conclusion of compensability to stand, specifically pertaining to the history provided by the plaintiff to her treating physician, Leon Goldstein. We disagree.

“The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” (Internal quotation marks omitted.) Id., 799. Furthermore, the trial commissioner is the arbiter of evidentiary credibility. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress [es] him as being credible and the more weighty. Stankewicz v. Stanley Works, 139 Conn. 215, 217, 92 A.2d 736 (1952); see Winzler v. United Aircraft Corp., 132 Conn. 118, 120, 42 A.2d 655 (1945).” (Citations omitted; internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn. App. 339, 353, 715 A.2d 765 (1998).

Furthermore, “[a] workers’ compensation award must be based on competent evidence. Cooke v. United Aircraft Corp., 152 Conn. 214, 216, 205 A.2d 484 (1964); Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 116, 176 A.2d 578 (1961). In determining whether evidence is competent in such a context, our Supreme Court has held that the opinions of experts [are] to be received and considered as in other cases generally but that the opinion of a physician which is based wholly or partly on statements and symptoms related to the physician by the patient on a personal examination is inadmissible where the examination was made for the purpose of qualifying the physician to testily as a medical expert. . . . Cooke v. United Aircraft Corp., supra, 216, quoting Zawisza v. Quality Name Plate, Inc., supra, 119.” (Internal quotation marks omitted.) Keenan v. Union Camp Corp., 49 Conn. App. 280, 284-85, 714 A.2d 60 (1998). In Cooke, however, testimony from the medical experts was deemed competent where the experts based their testimony regarding the plaintiffs condition on medical “reports made at the time of consultation and their diagnoses for the treatment of the plaintiff.” Cooke v. United Aircraft Corp., supra, 216; Keenan v. Union Camp Corp., supra, 285.

In the present case, medical experts for both the plaintiff and the defendants agreed that the plaintiff suffers from bilateral carpal tunnel syndrome. The opinions of the experts differed, however, with regard to the causation of the plaintiffs injury. While Richard Linberg, the defendants’ independent medical examiner, testified that it was “medically unlikely” that the plaintiffs carpal tunnel syndrome was caused by her employment at Chesebrough, Goldstein, the plaintiffs treating physician, testified that on the basis of the history of the plaintiffs work activities as described by the plaintiff, the carpal tunnel syndrome was caused by the plaintiffs work activities. A review of the record in this case reveals that the commissioner, in the finding and award, specifically referred to the testimony of both medical experts. Although Goldstein’s opinion is at least partly based on the plaintiffs history as related by her to Goldstein, his testimony was competent evidence because he was the plaintiffs treating physician. That testimony supports the commissioner’s decision in this case. The commissioner’s finding that the plaintiffs injury was caused by the plaintiffs work activities is therefore supported by the evidence.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff terminated her employment at that time due to pregnancy.

       As an order processor, the plaintiff was required to use a keyboard, fax machine and calculator.

       As a customer service representative, the plaintiff was required to use a keyboard and calculator.

       The record of the hearing before the commissioner considered on appeal consisted of, inter alia, the hearing transcript and the commissioner’s finding of facts.

       For example, the finding and award reveals that while the plaintiff alleged that her work as an order processor required her to use a keyboard 95 percent of the time, her supervisor, Georgette Ezil, testified that the plaintiffs actual keyboard time was about 10 to 15 percent of her workday.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ANDRE COARDES
    (AC 16491)
    Landau, Spear and Freedman, Js.
    Argued September 23
    officially released November 24, 1998

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maxine Wilensky, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from the judgment of conviction, rendered after a juiy trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and possession of a controlled substance in violation of General Statutes § 21a-279 (c). The sole issue before us is whether, in denying the defendant’s motion to suppress, the trial court properly concluded that the police officers had sufficient information to justify a Terry stop of the defendant’s vehicle. We conclude that the sum total of the information known to the police was sufficient for a Terry stop and, therefore, the trial court properly denied the defendant’s motion to suppress.

In an oral decision, the trial court found the following facts. On September 10, 1995, Officers Russell Sea and Eric Jones of the New Haven police department were dispatched to the area of Wayfarer Street after a report of gunshots. They left after finding no persons in the area and no shell casings or broken glass.

Within minutes of leaving the Wayfarer Street area, Sea and Jones received a radio dispatch that a shooting victim had walked into the emergency room of Yale-New Haven Hospital. In a subsequent radio dispatch, the officers were advised that the victim had been shot on Wayfarer Street. Sea and Jones thereafter returned to the Wayfarer Street area.

Officer Robert Lawlor, who was assigned to the Wayfarer Street area, had not responded to the initial dispatch regarding the gunshots because he was investigating a domestic dispute. After concluding that investigation, Lawlor went to the Wayfarer Street area. When he reached the area, a black male, approximately six feet, two inches tall, wearing baggy jeans and a multicolored shirt, approached him. The black male did not want to get involved, but he pointed out the defendant’s vehicle, which was at the intersection of Wayfarer and Level Streets, and indicated that the vehicle was present at the shooting.

After Lawlor left the scene to follow the defendant’s vehicle, Sea and Jones returned to Wayfarer Street. They were approached by the same black male who had approached Lawlor. The black male wanted to know why they had not stopped the car that he had pointed out because it was “weighted down,” a street term for a vehicle that contains illegal drugs or firearms. The black male also advised the officers that the occupants of the car were responsible for the shooting.

Sea and Jones radioed Lawlor, who was following the defendant’s vehicle, and told him that they had information that the vehicle had been involved in the shooting on Wayfarer Street. Lawlor subsequently stopped the defendant’s vehicle. As the defendant exited the vehicle, he admitted that he possessed marijuana on his person and that there was cocaine in the vehicle. Prior to trial, the defendant moved to suppress the statement and the contraband found in his vehicle, arguing that the initial stop of the defendant’s vehicle was not justified. The trial court denied the defendant’s motion.

Our Supreme Court has stated that “[o]n appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . Because a trial court’s determination of the validity of a patdown search implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996); see State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997); State v.Petruzzelli, 45 Conn. App. 804, 806-807, 699 A.2d 204 (1997).

The defendant’s principal claim is that because the information was received from an anonymous informant and was not corroborated, it could not support a finding that the officers had the reasonable and articulable suspicion necessary to justify a stop of the defendant’s vehicle. We disagree.

“A police officer does not need to have probable cause to believe that a crime has been committed in order to make a lawful stop of a motor vehicle. An investigatory stop is authorized if the police officer had a reasonable and articulable suspicion that a person has committed or is about to commit a crime. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances. State v. Anderson, 24 Conn. App. 438, 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991).” Price-Crowley v. Kozlowski, 49 Conn. App. 481, 484-85, 714 A.2d 719, cert. denied, 247 Conn. 919, 722 A.2d 811 (1998).

The police possessed information that corroborated the information received from the anonymous informant. Police officers were initially dispatched to the Wayfarer Street area because of a report of gunshots. Prior to stopping the defendant, the police also knew that a victim of a shooting on Wayfarer Street had walked into the Yale-New Haven Hospital emergency room. The defendant asserts that before following the defendant’s car, the police should have obtained more details from the informant to ascertain the basis of his claimed knowledge. The testimony of the officers makes it clear that the informant gave his information quickly and walked away because he was obviously unwilling to become more involved with the police. The trial court stated that “[i]n the course of their investigation, the officers did not find this [reluctance to get involved] unusual, particularly in this area, which they identified as a high crime area, where there are a lot of gunshots and gunplay, and where many people do not want to be associated with the police.” The officers were faced with a choice of going after the informant and attempting to obtain more information or going after the vehicle and making an investigatory stop. The collective knowledge of the officers was sufficient to raise a reasonable and articulable suspicion of criminal activity that justified their decision to pursue and stop the defendant’s car.

The defendant’s other attacks on the court’s findings essentially are that (1) the court should not have believed the police officers because important information did not appear in the police reports and (2) the trial court’s conclusion that the anonymous informant had personal knowledge about the alleged shooting is unsupported by the evidence. It is axiomatic that the trier of fact is the judge of credibility, and we do not substitute our judgment for that of the trial court in credibility matters. State v. Jones, 50 Conn. App. 338, 363, 718 A.2d 470 (1998). After a review of the record and briefs, we cannot say that the trial court’s findings were clearly erroneous, that the trial court’s conclusions were legally and logically inconsistent with the evidence or that the court’s decision was not supported by substantial evidence.

The judgment is affirmed.

       In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court set out the standard for police investigatory stops of individuals based on a reasonable and articulable suspicion of criminal activity.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. KEITH BELCHER
    (AC 18053)
    Foti, Schaller and Daly, Js.
    Argued September 22
    officially released November 24, 1998

      Robert G. Golger, special public defender, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Corree Santillo, legal intern, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Keith Belcher, appeals from the judgment of conviction, rendered after a jury trial, of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l) and one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1). The sole issue on appeal is whether he was twice put in jeopardy in violation of the federal and state constitutions by virtue of being subjected to an evidentiary transfer hearing in the Superior Court for juvenile matters prior to being tried as an adult in the Superior Court. We hold that the defendant waived his constitutional right against double jeopardy and, therefore, affirm the judgment.

The defendant was fourteen years of age when, on December 24, 1993, he and a companion approached the victim in front of her apartment in Bridgeport. The victim was unloading groceries from her car when the defendant approached her from behind, pulled out a gun and demanded that she give him her purse. When she informed the defendant that the purse was upstairs, he dragged her up to the apartment to retrieve it, all the time holding the gun on her.

Once inside, the victim gave the defendant her purse, which the defendant threw down the stairs to his companion. The victim asked the defendant to leave, but instead he forced the victim to perform oral sex on him. The defendant then forcibly dragged the victim through her apartment to a spare bedroom, where he again forced her to perform oral sex on him. The defendant subsequently hit the victim with the gun, leaving a severe laceration on her head. The defendant left when his companion called to him that it was time to go. After the defendant and his companion left, the victim called 911 for assistance. The police and ambulance arrived shortly thereafter. She was transported to St. Vincent’s Hospital, where she was treated and released. When she returned home, she discovered that some items of jewelry were missing.

On December 27,1993, the victim identified the defendant from police photographs. The defendant was later arrested. Following the defendant’s arrest, the state filed a petition to adjudicate the defendant as a delinquent. The state then filed a motion to transfer the defendant from the docket for juvenile matters to the regular criminal docket of the Superior Court. The court for juvenile matters held a hearing pursuant to General Statutes (Rev. to 1995) § 46b-126 (a) (repealed by Pub-lie Acts 1995, No. 95-225, § 39). After the hearing, which took place in two stages, a probable cause hearing and a hearing on amenability to treatment, the defendant was transferred to the regular criminal docket of the Superior Court. The defendant took no appeal from the transfer order as authorized by § 46b-126. The state filed an information charging the defendant with two counts of kidnapping in the first degree, two counts of sexual assault in the first degree, attempted sexual assault in the first degree, robbery in the first degree and burglary in the first degree. The defendant was convicted on all seven counts.

This appeal stems not from any actions at trial, but from those at the transfer hearing. The defendant claims for the first time on appeal that he was subjected to double jeopardy because at the transfer hearing he was adjudicated not amenable to treatment in a juvenile facility and a danger to society.

The law regarding double jeopardy is clear. “Whether a defendant may raise a defense of double jeopardy on appeal, when that issue was not raised at trial, is a question that [our Supreme Court] addressed, and resolved against the defendant in State v. Jones, 166 Conn. 620, 353 A.2d 764 (1974). There, as in [State v. Price, 208 Conn. 387, 544, A.2d 184 (1988)] the defendant ‘proceeded to trial, verdict and judgment without raising [a double jeopardy] claim.’ [State v. Jones, supra], 630. [Our Supreme Court] held that ‘in so doing he impliedly waived the defense of double jeopardy, and, therefore, that issue [was] not before [the court] for determination on the merits.’ Id.” State v. Price, supra, 390.

“Our [Supreme Court’s] resolution of the issue of waiver in State v. Jones, supra, [166 Conn. 620] is in accord with the treatment of that issue in other jurisdictions. The United States Court of Appeals for the Second Circuit has repeatedly held that ‘[t]he constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived.’ United States v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977); see also Paul v. Henderson, 698 F.2d 589, 592 (2d Cir.) [cert. denied, 464 U.S. 835, 104 S. Ct. 120, 78 L. Ed. 2d 118 (1983)].” State v. Price, supra, 208 Conn. 390. This court recently followed Price in State v. Chace, 43 Conn. App. 205, 207, 682 A.2d 143 (1996), and in State v. Connelly, 46 Conn. App. 486, 497-98, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

In this case, after thoroughly reviewing the briefs, record and transcripts from the proceedings in the trial court, we find no indication that the defendant raised the issue of double jeopardy prior to this appeal. The claim, therefore, was not properly preserved. Double jeopardy “ ‘is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i.e., whether or not the accused is guilty of the offense charged.’ Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).” State v. Price, supra, 208 Conn. 389 n.2. A claim of double jeopardy, when properly employed, will bring the criminal proceedings to a halt. Once a defendant proceeds to trial on the regular criminal docket, is convicted and judgment is rendered, his double jeopardy claim is considered waived. Because the defendant neither appealed the transfer order nor raised his double jeopardy claim at any time prior to proceeding on appeal, the claim is not properly before us.

Were we to find his claim properly preserved, however, and to reach the merits, the defendant’s claim of double jeopardy would be highly untenable. See State v. Price, supra, 208 Conn. 391-92. The defendant relies primarily on two cases, Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975), and Rios v. Chavez, 620 F.2d 702 (9th Cir. 1980), for the proposition that he was subjected to an adjudication at the transfer hearing. The defendant claims that this adjudication, in conjunction with his later trial, violated his right against double jeopardy. We disagree.

Both Breed and Rios involved transfer hearings under former California Welfare and Institutions Code § 602, which provided: “Any person under the age of 21 years who violates any law of this state or of the United States ... or who, after having been found by the juvenile court to be a person described by Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court. ” (Emphasis in original; internal quotation marks omitted.) Rios v. Chavez, supra, 620 F.2d 704.

In Breed, the defendant was subjected to an adjudicatory hearing because he was found to have violated the criminal statutes and was adjudicated a delinquent by the juvenile court prior to being transferred to the adult criminal docket. Breed v. Jones, supra, 421 U.S. 520-21. After the transfer hearing, the defendant filed a petition for a writ of habeas corpus in the juvenile court. That petition was denied. The defendant then filed another habeas petition with the California Court of Appeal, which denied the petition. The defendant was then tried and convicted. The defendant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California. Unlike the defendant in the present case, the defendant in Breed preserved his constitutional right against doublejeopardy. In Breed, the United States Supreme Court held that the California statutory scheme placed the defendant in double jeopardy because of the nature of the juvenile hearing. A juvenile in California would first have to be found to have committed the acts charged prior to his transfer to the adult court.

In Rios v. Chavez, supra, 620 F.2d 702, the defendant was also subjected to a hearing under the same California statute. The defendant was transferred to the adult docket and convicted of robbery and murder. The decision by the United States Court of Appeals for the Ninth Circuit came after the Supreme Court’s decision in Breed v. Jones, supra, 421 U.S. 519. The Ninth Circuit held that jeopardy attached to Rios at the transfer hearing. The Ninth Circuit was faced with a situation that paralleled the facts of Breed. On the basis of the factual similarities between Breed and Rios, the Ninth Circuit determined that Breed applied and reversed Rios’ conviction.

The situation before us is distinguishable from the California statutory scheme that was before the Supreme Court in Breed v. Jones, supra, 421 U.S. 519. In this case, § 46b-126 (a) did not require the trial court to determine that the juvenile violated any statutes. Moreover, the statute required only that the court find that probable cause existed to believe that the juvenile had committed the acts with which he was charged. The defendant argues that he was “exposed to the risk of being charged as a juvenile.” That argument is without merit. The statute does not allow for such a finding, and nothing in the trial court’s memorandum of decision leads us to believe that the court attempted to make such a finding. The fact that evidence was heard to determine whether probable cause existed to believe that the defendant was the person who had committed the alleged crimes does not change our decision.

The defendant further argues that the trial court’s finding that he was not amenable to treatment and a danger to society deprived him of his right to be tried as a juvenile. As the state pointed out at oral argument, there is no constitutional right to be treated as a juvenile; the right is statutory. See General Statutes §§ 46b-120 et seq. The trial court’s determination that the defendant was not amenable to treatment was made for the sole purpose of determining whether the juvenile system could adequately treat and rehabilitate him. The evidence indicated that it could not. Therefore, the trial court did as the statute directed and transferred the defendant to the regular criminal docket of the Superior Court.

“While it cannot be denied that the transfer hearing is a critically important proceeding . . . [s]uch a hearing does not result in a determination of delinquency . . . does not result in a determination of guilt as may a criminal trial; and does not directly result in confinement or other punishment as may both a delinquency hearing and a criminal proceeding. ... If the proceedings under consideration were an adjudicatory hearing which could result in a determination that the defendant was guilty of a crime or was a delinquent, we would face a different issue. We are here concerned with a transfer hearing, which has as its only purpose the determination of . . . use of one of two possible forums—the juvenile court or the superior court— which will then hold the adjudicatory hearing. ” (Emphasis added; internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 308, 559 A.2d 179 (1989). The juvenile court did not adjudicate the defendant delinquent or determine that he had violated the statutes with which he was charged. Therefore, the defendant was not placed in jeopardy twice.

The judgment is affirmed.

In this opinion the other judges concurred.

       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 . . . (B) accomplish or advance the commission of a felony . . . .”

       General Statutes § 53a-70 (a) 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 . . . .”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const., amend. V.

       “Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy.” (Internal quotation marks omitted.) State v. Morris, 49 Conn. App. 409, 418, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

       General Statutes (Rev. to 1995) § 46b-126 (a) provides in relevant part: “Except as otherwise provided in section 46b-127, the court may hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class A felony, other than murder, or for any serious juvenile offense designated as a class B or C felony if such child has previously been abdicated a delinquent for a serious juvenile offense, as defined in section 46b-120, provided such child has attained the age of fourteen years at the time the alleged delinquent act was committed. If the child is or has been under the custody of the commissioner of children and families, the commissioner shall provide any relevant information concerning the amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the act for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his ca.re or treatment; and (3) the prior adjudications of the child, together with the serious and dangerous nature of the acts and the physical, mental and emotional history and condition of the child, are such that the child is a danger to society and requires more secure and longer term handling than the juvenile justice system is able to provide and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. ... An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. ...”

       The state argues that defendant’s failure to appeal directly from the transfer order acts as a waiver to this appeal. The defendant concedes that no direct appeal was taken. The defendant, however, claims that this court can hear his appeal pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because the defendant waived his claim of double jeopardy at trial, we do not reach the issue of whether the defendant waived his right to a direct appeal on this issue, and we will not review the issue under Golding.

       The fifth amendment to the United States constitution, which protects against double jeopardy, applies to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Furthermore, the constitutional guaranty against double jeopardy applies to juvenile proceedings. See In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

       The defendant in Breed did not appeal from his conviction. The appeal was limited to his double jeopardy claim.


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. DARREN JONES
    (AC 17123)
    Foti, Hermessy and Sullivan, Js.

      Argued September 14
    officially released December 1, 1998

      David A. Golas, with whom was David A. Golas II, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Nina N. Rosen, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant appeals from a judgment of conviction, rendered after a trial by jury, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1) and (2), possession of drug paraphernalia in violation of General Statutes § 2 la-267 (a), possession of a controlled substance in violation of General Statutes § 21a-279 (c) and speeding in violation of General Statutes § 14-219 (c). On appeal, the defendant claims that the trial court improperly (1) refused to dismiss a venireperson for cause, (2) admitted the results of the defendant’s urinalyses into evidence, (3) construed the drug paraphernalia statute to include pipes without screens and (4) denied the defendant’s application for community service. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2:23 a.m. on August 5, 1995, Lieutenant Ronald Doughty of the Coventry police department observed a pickup truck driving through the town of Coventiy at a high rate of speed. Doughty pursued the truck with the intent to pull it over as soon as the hilly, curved road straightened out. As he followed the vehicle through a thirty-five mile per hour zone, he determined its speed to be seventy miles per hour. He also observed the truck weaving in its lane.

When Doughty pulled the truck over, he found the defendant at the wheel and smelled a strong odor of alcohol. Doughty observed that the defendant’s eyes were red and glassy, and that he appeared to be confused. The defendant admitted to having consumed “three beers.” The defendant failed several standard roadside sobriety tests, including the horizontal gaze nystagmus test, the walk and turn test, and the one-legged stand test. On the basis of those tests and his observations, Doughty concluded that the defendant was intoxicated and arrested him.

A search incident to the arrest yielded a wooden pipe on the defendant’s person, which was later tested and found to contain marijuana residue. At the police station, the defendant consented to providing the police with two urine samples. The samples were taken thirty-four minutes apart. Both tests revealed a blood alcohol content exceeding the legal limit for operating a motor vehicle.

I

The defendant first claims that the trial court violated his state and federal constitutional rights to trial by an impartial jury by refusing to remove a venireperson, T, for cause. We disagree.

Some additional facts are necessary to our resolution of this issue. During voir dire examination, T stated that there was a history of alcoholism in her husband’s family. Specifically, twenty years prior, T’s father-in-law was involved in an automobile accident while driving drunk. Also, her brother-in-law committed suicide while drunk. She said that these incidents made her “conservative” with respect to drinking and driving, and that she would not be the kind of person that she would pick to sit on a jury if she were the defendant. Nonetheless, she affirmed that she could be fair and impartial, and render a verdict based on the evidence and according to the judge’s instructions.

After the venireperson left the courtroom, the defendant asked the court to remove her for cause. Refusing to excuse T for cause, the court found that she would be fair and impartial despite her husband’s family history.

“Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court.” (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 330, 715 A.2d 1 (1998).

The integrity of our criminal justice system relies on a fair and impartial jury. “[A]n impartial and fairly chosen jury is the cornerstone of our criminal justice system.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 172, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). To this end, the common law allows parties to challenge the seating of a juror peremptorily or for cause. Having exhausted his peremptory challenges, the defendant raised a challenge for cause.

The challenge for cause exists in two forms, the principal challenge and the challenge to the favor. The principal challenge is based on an inextricably close relation between a prospective juror and a party such that disqualification will be a matter of law. Morgan v. St. Francis Hospital & Medical Center, 216 Conn. 621, 624, 583 A.2d 630 (1990). A challenge to the favor involves a more remote relationship that tends to show bias but does not create a conclusive presumption. Id. The defendant here raises the latter challenge.

“The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.” State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). The defendant bears the burden of proving actual bias by showing that the prospective juror’s mind was settled and his opinion fixed so as not to be able to judge the defendant’s guilt impartially. Eisenbach v. Downey, supra, 45 Conn. App. 173.

The voir dire examination of T did not establish bias or prejudice on her part. Quite the contrary, T’s responses to the voir dire examination indicated that her mind and opinion would be fixed only by the evidence presented at trial and the instructions of the judge. T unambiguously stated that despite her family history, she could and would fairly and impartially judge the defendant’s guilt according to the law. The defendant has failed to show that T’s general aversion to drinking and driving created any particularized prejudice to him or influenced her ability fairly to weigh the evidence against him.

We conclude that the trial court acted within its broad discretion in refusing to excuse T for cause, the defendant having not established actual bias on her part.

II

The defendant next claims that the results of his urinalyses should have been excluded because they failed to meet the admissibility requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

“The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Merritt, 36 Conn. App. 76, 82, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995).

A

After the trial court denied the motion to suppress the test results, which the defendant based on the tests’ alleged failure to meet the statutory requirements for admission of a chemical test, the defendant orally moved to suppress the test results on Frye grounds.

The defendant’s chief complaint is that the test results are inaccurate and unreliable because he was not allowed to void his bladder prior to giving each urine sample. The state contends that Connecticut’s two test requirement alleviates the problem because the first sample effectively selves as a void for the second sample.

Our examination of the record reveals that the trial court’s admission of the test results essentially rests on its finding that the state had met the requirements of § 14-227a (c). We have previously noted that “[t]he admissibility of chemical analyses is controlled by General Statutes § 14-227a (c), which lists six factors that must be met before such evidence is deemed admissible and competent.” State v. Gilbert, 30 Conn. App. 428, 438-39, 620 A.2d 822 (1993), aff'd, 229 Conn. 228, 640 A.2d 61 (1994). On the basis of the factual allegations, the trial court found that the statutory criteria were met. Because § 14-227a provides the exclusive grounds for admission of chemical analyses, the trial court properly admitted the test results when it determined that those criteria had been met.

B

Even if § 14-227a were not the only condition for admission, the trial court properly admitted the urinalysis results under the Frye “general acceptance” test.

Under the Frye test for admissibility, the scientific basis for certain evidence must be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, supra, 293 F. 1014.

During a brief Frye hearing, the trial court concluded that the defendant’s objections went to the weight rather than the admissibility of the evidence and refused to exclude the test results.

The factual determination of whether scientific evidence meets the Frye standard is properly the trial court’s province. State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). “Although we will review a trial court’s ruling as to whether a Frye finding must be made, we will not conduct an appellate level review of the facts relating to a Frye finding.” Id.

The facts asserted during the hearing provide adequate support for the trial court’s conclusion.

Ill

The defendant’s third claim is that the trial court improperly denied his motion for judgment of acquittal on the charge of possession of drug paraphernalia and improperly held that the screenless wooden pipe found on his person constituted drug paraphernalia as defined by statute. We disagree.

This issue presents a question of statutory interpretation and is therefore subject to our plenary review. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

Incident to a lawful arrest, the police searched the defendant and seized a wooden pipe on his person. Although a trained and experienced police officer indicated that the pipe appeared to be a marijuana “bowl,” and although laboratory tests confirmed that the pipe was used to smoke marijuana, the defendant maintains that the pipe falls outside the statutory definition of drug paraphernalia because it lacks a screen. Because the statute explicitly lists only “pipes with screens,” the defendant argues that a pipe without a screen is not drug paraphernalia even if that pipe is used to consume drugs.

General Statutes § 21a-240 (20) (A) provides the operative definition, which uses the phrase “pipes with screens.” The defendant contends that the statutory definition comprises only those pipes that have screens and excludes all other pipes.

A primaiy rule of statutory construction is that when the words of a statute are plain and unambiguous they should be given full effect. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). This statute uses expansive words of inclusion. Drug paraphernalia comprises “equipment, products and materials of any kind . . . .” General Statutes § 21a-240 (20) (A). The definition also uses “such as” and “including, but not limited to . . . .” Id. These phrases convey a clear intention that the items listed in the definition do not constitute an exhaustive or exclusive list.

Although “including” has been found to be ambiguous by itself, other language may remove the ambiguity, as in this case. See State v. White, 204 Conn. 410, 422-23, 528 A.2d 811 (1987). By adding the phrase, “but not limited to,” the statute clearly indicates that “including” is meant as a term of expansion.

Several other tenets of statutory construction are instructive here. Courts must give effect to a statute such that its purpose is not frustrated and the results are not absurd. State v. DeFrancesco, 235 Conn. 426, 437-38, 668 A.2d 348 (1995). The defendant’s pipe was used to smoke marijuana. The legislature clearly did not intend that a possessor of a marijuana pipe be able to escape liability by merely removing a screen, which does not apparently affect its use in any way. It simply makes no sense that the legislature would outlaw apipe with a screen but not a screenless pipe unless the screen was essential to the pipe. No one here has suggested that the absence of a screen renders a pipe ineffective for smoking marijuana.

The doctrine of ejusdem generis also supports the trial court’s determination. “According to this doctrine, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.” (Internal quotation marks omitted.) Id., 438. A wooden pipe used for smoking marijuana most certainly falls within the same class as the other listed items.

The trial court properly found the defendant’s pipe to be within the purview of the statute. We find no merit in the defendant’s claim.

IV

The defendant’s last claim is that the trial court improperly denied his application to participate in a community service program.

Several additional facts are necessary to understand our disposition of this issue. On February 7, 1997, the state filed an amended information charging the defendant with the additional charge of possession of a controlled substance. On February 13, 1997, the defendant moved to strike the added count of the information on the grounds of prejudice. The court denied the motion to strike. The prosecution offered its toxicology report on February 14, 1993. On February 21, 1997, after the evidentiary phase of the trial had closed, the defendant applied for the community service order.

General Statutes § 53a-39c establishes a community service program for persons charged with violations of § 2 la-279. Applications for this program are left to the discretion of the trial court. We review the trial court’s decision under an abuse of discretion standard, and we conclude that the trial court did act within its discretion.

The defendant’s application was made after the evidence had been heard and after the trial was nearly complete. Although the defendant’s timing does not automatically disqualify him from participation in the program, it does provide the trial court with ample justification for denying his application. The language of the statute makes clear that the community service program is intended to avoid unnecessary trials and expenditures of resources. The trial court, having found that all parties had made a substantial investment in the trial, acted well within its discretion in denying the defendant’s application.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides: “Noperson shall operateamotor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 21a-267 (a) provides: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       General Statutes § 14-219 (c) provides: “Any person who violates any provision of subdivision (1) of subsection (a) of this section or who operates a motor vehicle (1) on a multiple lane, limited access highway at, a rate of speed greater than seventy miles per hour but not greater than eighty-five miles per hour or (2) on any other highway at a rate of speed greater than sixty miles per hour but not greater than eighty-five miles per hour shall be fined not less than one hundred dollars nor more than one hundred fifty dollars, provided any such person operating a truck, as defined in section 14-260n, shall be fined not less than one hundred fifty dollars nor more than two hundred dollars.”

       The police conducted afield test of the pipe. The state toxicology laboratory confirmed the presence of marijuana with three tests: enzyme multiplied immunoassay technique, gas chromatography and mass spectrometry.

       “The Court: She certainly said she could be. She wasn’t even equivocal about it. She said she would. . . . The fact that she may be conservative about the issue is basically telling us that she’s a law-abiding person. I think most people would say, if you asked them, that they approve of the law that says you shouldn’t drink and drive a motor vehicle after you’ve been under the influence. I don’t think that’s—every citizen would probably say that, everybody that comes through here would say that, and I don’t think that the fact that she has those experiences, unless those experiences make us think that she can’t be fair or impartial, but it’s just the opposite. She said she has those experiences, but she could be fair and impartial.
      “[Defense Counsel]: I think by implication she told us that she can’t, she wouldn’t choose herself, and based on those experiences. I mean, true, a lot of people come here with conservative attitudes with respect to alcohol and drugs, and there isn’t any problem whatsoever with that, but not everybody comes here with a father-in-law who was involved in a drunken driving accident and a brother-in-law who committed suicide while drinking. I mean, I think that’s a rarity with respect to personal experiences, and I think those are pretty heavy personal experiences, and here’s a case that involves exactly that. I mean it involves the allegation of driving while under the influence of alcohol. So, I just think that by implication when she answered that question she wouldn’t choose herself, she’s telling us that.
      “The Court: Well, I think what she meant when she said that was she said she’s conservative. She would probably rather have somebody more liberal than she on the jury to make that determination, but she didn’t say she wouldn’t—that she would be unfair at all. She said just the opposite. She would be fair. She’d listen to the case, she would follow the judge’s instructions. I’m going to decline your request to excuse her.”

       “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, supra, 293 F. 1014.

       General Statutes (Rev. to 1995) § 14-227a (c), as amended by Public Acts 1995, No. 95-257, § 21, provides in relevant part: “[I]n any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Public Health and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the Commissioner of Public Health. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a phlebotomist, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy immediately before and after such test was performed by a person certified by the Department of Public Health; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented that the test was commenced within two hours of operation. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that (he test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense.”

       Subsequent to the trial court’s evidentiary ruling, our Supreme Court adopted the more liberal approach of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), for the admissibility of scientific evidence. State v. Porter, 241 Conn. 57, 66-68, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). As a result, the Frye general acceptance test is no longer the sole prerequisite to admissibility but, instead, part of a broader conceptual approach. Id., 75-77.

       General Statutes § 21a-240 (20) (A) provides in relevant part: “ ‘Drug paraphernalia’ refers to equipment, products and materials of any kind which are used, intended for use or designed for use in . . . injecting, ingesting, inhaling or otherwise introducing into the human body, any controlled substance contrary to the provisions of this chapter including, but not limited to . . . (x) objects used, intended for use or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with screens, permanent screens, hashish heads or punctured metal bowls; water pipes; carburetion tubes and devices; smoking and carburetion masks; roach clips: Meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand; miniature cocaine spoons, and cocaine vials; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs or ice pipes or chillers . . . .”

       General Statutes § 53a-39c provides in relevant part: “(a) There is established, within available appropriations, a community service labor program for persons charged with a violation of section 21a-279 who have not previously been convicted of a violation of section 21a-277, 21a-278 or 21a-279. Upon application by any such person for participation in such program the court may grant such application and (1) if such person has not previously been placed in the community service labor program, the court may either suspend prosecution and place such person in such program or, upon a plea of guilty without trial where a term of imprisonment is part of a stated plea agreement, suspend any sentence of imprisonment and make participation in such program a condition of probation or conditional discharge in accordance with section 53a-30; or (2) if such person has previously been placed in such program, the court may, upon a plea of guilty without trial where a term of imprisonment is part of a stated plea agreement, suspend any sentence of imprisonment and make participation in such program a condition of probation or conditional discharge in accordance with said section 53a-30. No person may be placed in such program who has twice previously been placed in such program.
      “(b) Any person for whom prosecution is suspended and who is placed in the community service labor program pursuant to subsection (a) of this section shall agree to the tolling of the statute of limitations with respect t.o such crime and to a waiver of his right to a speedy trial. If such person satisfactorily completes the program of community service labor to which he was assigned, he may apply for dismissal of the charges against him and the court, on reviewing the record of his participation in such program and on finding such satisfactory completion, shall dismiss the charges. If the program provider certifies to the court that such person did not successfully complete the program of community service labor to which he was assigned or is no longer amenable to participation in such program, the court shall enter a plea of not guilty for such person and immediately place the case on the trial list. . . .”