author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. DAVID SMITH
    (14454)
    Dupont, C. X, and O’Connell and Landau, Js.

      Argued December 6, 1995
    decision released April 2, 1996

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan E. Alexander and Edward R. Narus, assistant state’s attorneys, for the appellant (state).

      Hope C. Seeley, with whom, on the brief, was Hubert J. Santos, for the appellee (defendant).
   DUPONT, C. J.

The state, with the permission of the trial court pursuant to General Statutes § 54-96 appeals from the trial court’s judgment dismissing with prejudice three counts of arson in the first degree in violation of General Statutes §§ 53a-lll and 53a-8 and one count of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll.

Prior to the dismissal, the trial court granted the defendant’s “motion in limine to exclude testimony” of the private insurance investigators who had conducted a cause and origin investigation of the fire that had destroyed the defendant’s business premises. Although the defendant’s motion referred to “testimony,” the trial court’s decision limited the scope of the suppression to “any/all testimony, photographs, tests and/or videos of the defendants premises. All photographs, or videos or tests of the exterior of the mall or general areas such as roof and the other business premises are not suppressed. All conclusions of the investigators as to cause and origin of the fire that are based upon information, photographs, videos or tests from the business premises of the defendant are suppressed.”

The sole issue in this appeal is whether the trial court properly held that the entry by private insurance investigators onto the defendant’s business premises, without a search warrant and allegedly without his consent, violated his constitutional rights. Contrary to the trial court’s decision, we conclude that under the circumstances of this case, the private investigators who conducted cause and origin investigations on behalf of the insurance companies involved were not agents of the state, and, as such, their entry onto the defendant’s business premises did not constitute an illegal search under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. We, therefore, reverse the judgment of the trial court.

The fourth amendment protects persons from unreasonable searches and seizures by the federal government; Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); and is made applicable to state action through the fourteenth amendment. Camara v. Municipal Court of San Francisco, 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Fourth amendment constitutional guarantees against unreasonable searches and seizures apply, however, only to governmental action and do not apply to action by private citizens acting in their private capacity. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). “[A] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and . . . such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully.” Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980). An exception, however, to the general rule that the fourth amendment does not protect against searches by private persons is that the fourth amendment may be invoked where a private person, in light of all circumstances of the case, is acting as the agent or instrument of the state. Coolidge v. New Hampshire, supra, 487.

The state claims that the trial court improperly concluded (1) that an agency relationship arose by operation of law as a result of the reporting requirements of General Statutes § 38a-318, and (2) that the facts support a finding of an agency relationship between state officials and the private insurance investigators.

To address the state’s claims, we must first discuss the procedural history and the facts of this case. On April 27,1991, Video Galaxy, a video rental store owned by the defendant, and other commercial establishments located in a one story mini mall structure known as Waz’s Plaza, were destroyed by fire. Due to the nature of the fire, members of the state fire marshal’s office were assigned to investigate the cause and origin of the fire. The defendant and the owners of the other commercial establishments affected by the fire consented to a search of their business premises by the state fire marshal’s office and members of that office conducted an investigation from April 27 through April 29, 1991.

Subsequent to the investigation, many of the insurance companies that insured the commercial establishments at Waz’s Plaza contracted with or assigned private investigators to investigate the origin and cause of the fire. The reports of the private investigators revealed that each of the investigators went to the fire scene and inspected not only the commercial establishments that were insured by each investigator’s respective insurance employer, but also the other commercial establishments located at Waz’s Plaza, including that of the defendant. The reports also reveal that the investigators took numerous photographs and videos and, in one case, removed samples from the defendant’s premises for testing. None of the reports, however, indicates that any of the investigators asked for permission from the defendant to enter his premises.

On May 28,1991, the state fire marshal’s office issued its report on the origin and cause of the fire and concluded that the fire originated on the defendant’s premises and was caused by arson. The trial court found that none of that report’s conclusions or findings of fact came from the reports of the private investigators. The trial court also found that the reports of the investigators were not prepared on behalf of the government and that there was no intent on the part of the investigators to engage in a search or seizure.

Some time after it had issued its report, the state fire marshal’s office, in accordance with General Statutes § 38a-318, requested copies of the investigative reports prepared by the private investigators on behalf of the insurance companies. The insurance companies turned over the reports that they had received from their respective investigators, with the exception of the report prepared by Thomas Haynes for the defendant’s insurance carrier.

The defendant claims that the actions of the private investigators who entered the defendant’s business premises constituted state action conducted without the consent of the defendant and without search warrants. The defendant argues, therefore, that the entry and gathering of evidence constituted an illegal search and seizure in violation of the fourth and fourteenth amendments to the United States constitution.

The trial court conducted a hearing on the defendant’s motion. The defendant presented the testimony of Detective Julio Fernandez and Sergeant James But-terworth of the state fire marshal’s office and that of Haynes. Additionally, the following documents were admitted as court exhibits: (1) the state fire marshal’s report and its formal request for information addressed to the defendant’s insurance carrier; (2) the letter sent by the state fire marshal to the defendant’s insurance carrier requesting materials; (3) the reports prepared by each of the private investigators; (4) Haynes’ file and notes; and (5) the lease between the defendant and his lessor, Plymouth Commons Realty Corporation.

The trial court, in a written memorandum of decision, concluded that “the private investigators are agents of the state of Connecticut and as such their entry onto the defendant’s business premises without his consent constituted an illegal search under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution.” Following the trial court’s decision to grant the motion in limine and to suppress the evidence compiled by the private investigators, the state moved to dismiss the charges with prejudice pursuant to General Statutes § 54-56, and moved for permission to appeal pursuant to General Statutes § 54-96. Over the defendant’s objections, the trial court granted both of the state’s oral motions. This appeal followed.

The trial court based its finding of an agency relationship on the ramifications of § 38a-318 and State v. Zar- ick, 227 Conn. 207, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). In Zarick, the defendant claimed that certain photographs given to police in Massachusetts by a commercial film developing laboratory to which the film had been sent by the defendant were illegally seized because the film developing laboratory was an agent of the state. The Supreme Court affirmed the trial court’s finding that the film developing laboratory was not an agent of the state and that the photographs did not improperly come into the possession of the Massachusetts police. Id., 228.

As noted by the trial court in the present case, the evidence in Zarick that served to support the trial court’s finding that there was no agency included the facts that (1) the policy of turning over questionable photographs to the police was initiated by the film developing company, (2) the decision to turn over specific photographs was entirely up to the company, (3) there was no supervision or random checking of the company by the police in connection with this policy, and (4) there were no instructions or rules regarding such policy promulgated by the police. Id., 227-28.

Relying on Zarick, the trial court concluded that “the policy of turning over the insurance reports is statutorily authorized and that the insurance company is man-datorily required to turn the reports over; that it is logical that the state police would want to see the reports rendered by the private investigators and would monitor whether there were investigators on the scene and would professionally request the reports to round out their own investigation; and that ... § 38a-318 is a statute legislatively enacted with its intended consequences.”

None of the Connecticut cases involving the question of the existence of an agency relationship between a private person and the state in determining whether the fourth amendment prohibitions apply to the behavior of a private person involves a statute. It is also a case of first impression as to whether § 38a-318 creates an agency relationship between the state and insurance companies.

I

AGENCY BY OPERATION OF LAW

The state’s first claim is that the trial court should not have concluded that an agency relationship arose as a matter of law by operation of the reporting requirements of § 38a-318.

The state argues that the trial court’s decision focuses on the reporting requirements of § 38a-318 and the fact that state fire officials requested and received copies of the reports of the private investigators pursuant to statute. The state, therefore, asserts in its brief that the trial court determined that the agency relationship arose by operation of law based on the reporting requirements of § 38a-318.

An agency relationship can arise by operation of law if a statute, rather than a contract or acts of the parties, creates the relationship. See Ballentine’s Law Dictionary (3d Ed. 1969). The question that we must resolve is whether § 38a-318 creates an agency relationship between the insurance investigators and the police or fire marshal. Although agency is ordinarily a question of fact, it becomes a matter of law when a statute permits a finding of the relationship. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 184-85, 544 A.2d 1185 (1988).

An agency relationship exists if (1) there is a manifestation by a principal that a person is acting for that principal, (2) there is acceptance by an agent of the relationship, and (3) there is an understanding that the principal is in control of the acts of the agent. Gateway Co. v. DiNoia, 232 Conn. 223, 240, 654 A.2d 342 (1995); Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 294, 474 A.2d 1100 (1984). If § 38a-318 establishes each of these elements of agency, an agency relationship exists by operaton of law. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 184-85. We must, therefore, review the statute to determine if it establishes an agency relationship between the state and private insurance investigators, thus implicating the fourth amendment.

The language of § 38a-318 does not require private insurance investigators to act for the state or to conduct an investigation in any particular way, or require insurance carriers to initiate a report for every fire for which a claim is made or to initiate a report whenever they deem that they may not be liable to a policy holder because arson may be involved. There is also no indication in the statute that private insurance investigators have accepted such an undertaking. Lastly, the statute does not provide or even allude to any understanding between the state and private insurance investigators that the state would exercise any degree of control over private insurance investigators in their execution of cause and origin inspections. Although § 38a-318 permits the state fire marshal to request and to receive relevant material acquired by private insurance investigators when investigating a loss due to a fire of suspicious or incendiary origin, it does not coerce or require the investigators to take any particular action.

State action can exist by legislative fiat only when the legislation confers on private parties a power that traditionally belongs to the government and grants coercive power or provides significant overt or covert encouragement to private parties to engage in a particular act. San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 542, 113 S. Ct. 1799, 123 L. Ed. 2d 554 (1986); Alliance for Community Media v. Federal Communications Commissions, 56 F.3d 105, 116 (D.C. Cir. 1995). We conclude that § 38a-318 falls far short of establishing an agency relationship by operation of law.

II

AGENCY AS A QUESTION OF FACT

Because we have concluded that the statutory scheme of § 38a-318 does not establish an agency relationship, we must next resolve whether that relationship is established in light of all of the factors in the case, including the factor of the action required of insurance companies by the statute. See Connecticut Air Service, Inc. v. Danbury Aviation Commission, 211 Conn. 690, 561 A.2d 120 (1989). The state claims that the trial court’s finding of an agency relationship between state officials and private citizens is not supported by the subsidiary facts.

“A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ ” Kaplan v. Kaplan, 186 Conn. 387, 392, 411 A.2d 629 (1982), quoting Practice Book § 3060D (now § 4061). Practice Book § 4061 provides that we may reverse or modify the decision of the trial court if we determine “that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” To test whether a finding is clearly erroneous, we determine whether there is evidence to support the finding. If there is not, the finding is clearly erroneous. Metropolitan District v. Housing Authority, 12 Conn. App. 499, 510-11, 531 A.2d 194, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). If the trial court’s conclusions or findings of fact rest on speculation rather than on sufficient evidence, they are clearly erroneous. Williams v. Campanaro Construction Co., 20 Conn. App. 709, 711-13, 570 A.2d 228 (1990).

The ultimate finding that an agency exists usually turns on factual questions, which, in the context of a motion to suppress, where the claim is that a private individual is acting for the state, requires scrupulous appellate examination of the record to determine whether that factual finding is supported by substantial evidence. State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985). We must review the facts found on a clearly erroneous standard and then review de novo the court’s ultimate application of the law to those facts. United States v. Garlock, 19 F.3d 441, 442 (8th Cir. 1994).

As noted by our Supreme Court, “[t]here is no bright line test for determining when a private citizen is acting as an agent of the police.” State v. Alexander, supra, 197 Conn. 183, citing Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.), cert. denied, 464 U.S. 918, 104 S. Ct. 284, 78 L. Ed. 2d 262 (1983). We must determine whether, in light of all the circumstances, the private insurance investigators acted as an instrument or agent of the state. See Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). In making this determination, “we consider whether private citizens are performing a function akin to a governmental function such as criminal investigation and whether they are acting on the order, instruction, or request of a government officer.” State v. Lee, 32 Conn. App. 84, 93, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994).

Some of the factors that determine whether an agency has been created have been delineated by both federal and state decisions. These considerations include the subsidiary facts of who or what initiated the action by the private individual, who decides whether the fruit of the action is to be given to the state, who determined the way in which the action was to be conducted; United States v. Garlock, supra, 19 F.3d 443-44; State v. Zarick, supra, 227 Conn. 227-28; the extent of the contact between the state and the individual and whether the individual receives a monetary or other form of inducement from the government; State v. Alexander, supra, 197 Conn. 187; whether the government had prior knowledge that the individual would act as she or he did; Burdeau v. McDowell, supra, 256 U.S. 475; whether the primary purpose of the state and the actor was the same; California v. Mangiefico, 25 Cal. App. 3d 1041, 1048, 102 Cal. Rptr. 449 (1972); whether a statute mandates the private action; Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 614-15; whether the purpose of the individual was to benefit the government; United States v. Attson, 900 F.2d 1427, 1432-33 (9th Cir.), cert. denied, 498 U.S. 961, 111 S. Ct. 393, 112 L. Ed. 2d 403 (1990); whether the government’s role was active or passive; Skinner v. Railway Labor Executives’ Assn., supra, 615; whether the government exercised coercive means and whether the act involved a power that was the exclusive prerogative of the government; United States v. Garlock, supra, 443-44; and whether at the time of the act the private citizen was engaged in assisting the government in its public purpose. United States v. McAllister, 18 F.3d 1412, 1418 (7th Cir. 1994). All of these factors relate to the three ingredients of agency, namely, whether there is a manifestation by the principal-government that the agent-individual is acting for the government, whether the agent-individual has accepted the relationship and whether the principal-government and the agent-individual understand that the government is in control of the acts of the individual.

The record here is devoid of any evidence that shows that the state coerced, encouraged, suggested or initiated the cause and origin inspections performed by the private insurance investigators. To the contrary, the trial court found that the private insurance investigators’ investigations were conducted at the behest of insurance companies that insured the commercial establishments at Waz’s Plaza. There is also no evidence that the government exercised any degree of control over the private insurance investigators when they conducted their inspections. The fact that the state fire marshal’s office and the private insurance investigators were all engaged in cause and origin investigations does not create the required nexus to establish that the private insurance investigators “acted as . . . instru-mentfs] or agentfs] of the Government.” Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. 614.

In this case, the purpose of the state was to determine if there was sufficient evidence for criminal prosecution, and the purpose of the private insurance companies, through their investigators, was primarily to determine the liability of their companies for insurance claims. Included in the latter determination are subsidiary determinations of whether there was arson by someone other than their policyholders, and whether there might be rights of subrogation. Insurance companies also have the purpose of gathering information useful in the future investigation of other fires. The purposes of the state and the private insurance investigators were, therefore, different because the insurance investigators had a legitimate independent motive to investigate. Although § 38a-318 may require insurance companies to turn over their investigative reports to the state, the statute does not mandate that there be any investigation conducted at all. Cf. id., 614—15.

The trial court found that the policy of turning over the insurance reports was authorized by statute and that the requirement of providing them to the state was mandated by the statute. As previously discussed, although those findings are not erroneous, the ultimate finding that an agency relationship therefore arose cannot be supported by those facts. The trial court also rested its conclusion of agency on its finding that it is logical that the state police would want to see the reports and would monitor whether there were investigators on the scene and would request the reports to round out the police investigations. There is no evidence to support whether the state police “would monitor whether there were investigators on the scene.” Although there was evidence that it is standard practice for the state fire marshal’s office to obtain insurance reports, and that, if an arrest resulted from the state’s investigation, the insurance reports would be provided to the state’s attorney’s office, neither of those practices relates to whether an agency relationship existed at the time the insurance reports were made or at the time the private investigations occurred.

We conclude that the entry onto the defendant’s business premises was private in nature and was not attributable to the state. Therefore, fourth amendment constitutional guarantees do not apply.

The judgment is reversed and the case is remanded with direction to reinstate the case on the docket of the court and to deny the motion in limine.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The state also argued on appeal that the trial court committed plain error by the suppression of the report of the investigator for the defendant’s insurance company. The state claimed that, the defendant, by virtue of his insurance contract with the company, had consented to an inspection of his burned-out premises. In view of our holding that the insurance investigators were not agents of the state, we need not reach this issue. We also do not reach the issue, raised by the state to the trial court, of whether the defendant had also consented to the search by the investigator working for the defendant’s lessor’s insurer, by virtue of the defendant’s lease with the lessor.

       The defendant, the state and the trial court in its memorandum of decision do not rely on the Connecticut constitution for any analysis. We, therefore, limit our discussion of this matter to the federal guarantee. See State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       The defendant states the issues as follows: (1) whether the trial court’s determination of agency was legally and logically correct; and (2) whether the trial court's finding that an agency relationship existed was clearly erroneous.

       The trial court noted that the state fire marshal’s report contained information from one of the private investigators, Thomas Haynes, concerning his electrical inspection of Video Galaxy. The trial court concluded, however, that that information was cumulative and came from conversation, not from the report prepared by Haynes.

       General Statutes § 38a-318 (formerly § 38-114h) provides in relevant part: “Information to be furnished relative to fire losses. Limitation on liability. Confidentiality of information. Testimony concerning information given authorized agencies, (a) Any authorized agency may in writing request any insurance company to release information relative to any investigation it has made concerning a loss or potential loss due to fire of suspicious or incendiary origin which shall include but not be limited to: (1) An insurance policy relative to such loss, (2) policy premium records, (3) history of previous claims, and (4) other relevant material relating to such loss or potential loss.
      “(b) If any insurance company has reason to suspect that a fire loss to its insured’s real or personal property was caused by incendiary means, the company shall furnish any authorized agency with all relevant material acquired during its investigation of the fire loss, cooperate with and take such action as may be requested of it by the authorized agency and permit any person ordered by a court to inspect, any of its records pertaining to the policy and the loss. Such insurance company may request any authorized agency to release information relative to any investigation it has made concerning any such fire loss of suspicious or incendiary origin.
      “(c) No insurance company, authorized agency or person who furnished information on behalf of such company or agency, shall be liable for damages in a civil action or subject to criminal prosecution for any oral or written statement made or any other action taken that is necessary to supply information requested pursuant to this section, unless there is fraud, actual malice or conduct relating to the release of such information which constitutes a criminal act.
      “(f) For the purposes of this section, ‘authorized agency’ means: (1) The state fire marshal or the local fire marshal when authorized or charged with the investigation of fires at the place where the fire actually took place; (2) the insurance commissioner. . . .”

       The state fire marshal’s office was aware that Haynes had prepared a written report and that he had submitted the report to the defendant’s insurance carrier, but, according to Sergeant James Butterworth of the state lire marshal’s office, the defendant’s insurance carrier refused to turn over its report to the state because it claimed that it had not requested Haynes to prepare a report. Thus, the state never received Haynes’ report under the auspices of § 38a-318.

       General Statutes § 54-56 provides: “AH courts having jurisdiction of criminal cases shaH at aH times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.” (Emphasis added.) We note that this statute authorizes a trial court to dismiss charges upon motion of the defendant. Even though it was the state that moved to dismiss the charges with prejudice, the trial court had authority to grant that motion. State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983).

       The trial court heard testimony from Butterworth that it is a standard practice for the slate fire marshal's office to write to insurance companies in order to get their reports of fire scene investigations and that if a case is going to proceed to arrest, these reports, as a matter of policy, are incoiporated as part of the state fire marshal’s file, and are then submitted to the state’s attorney’s office.

       The trial court did not explicitly conclude that an agency relationship existed because § 38a-318 created such a relationship, but did primarily rely on the statute to conclude that the investigators were agents of the state.


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY PETERS
    (13599)
    (14240)
    Dupont, C. J., and Lavery and Ileiman, Js.
    Argued November 27, 1995
    decision released April 2, 1996

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joseph Valdes, deputy assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

In this consolidated appeal, the defendant appeals in the first case from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 and assault in the third degree in violation of General Statutes § 53a-61. The defendant appeals in the second case from the judgment of conviction of a violation of probation, rendered by the court by reason of his convictions in the first case.

The defendant claims that his conviction in the first case is fatally flawed because the trial court improperly (1) instructed the jury on self-defense in four ways, including (a) giving an incorrect definition of “initial aggressor” as the first person to use physical force, (b) making an incorrect statement that a person who acted from anger, malice or revenge could not claim self-defense, (c) failing to charge on the subjective-objective standard by replacing that standard with a totally objective standard, (d) limiting the defendant’s claim of justification to the charge of assault, (2) omitted judicial gloss from its instructions regarding the elements of the crime of risk of injury, thereby depriving the defendant of his right to due process, (3) permitted the defendant’s conviction of risk of injury to stand where the evidence was insufficient to support a conviction, and (4) violated the defendant’s right not to be placed in double jeopardy by sentencing him for both risk of injury and assault in the third degree. The defendant also asserts that in the second case, the judgment of conviction of violation of probation should be reversed because the factual predicates for the violation of probation were the allegedly improper convictions of risk of injury and assault in the third degree. We affirm the judgments of the trial court.

The jury could reasonably have found the following facts. On December 7, 1991, the victim was fourteen years of age and resided on Norfolk Street in Hartford with his mother. The victim’s mother had been in a long-term relationship with the defendant and, at the time of trial, they had been married for approximately two weeks.

On December 7,1991, at the house on Norfolk Street, the defendant and the victim started to argue with each other. The defendant and the victim were both in the living room, and the defendant, using his body, began shoving the victim, forcing him into the kitchen and against a kitchen wall. While the defendant continued shoving, the victim punched the defendant, then picked up a knife, dropped it, and ran from the house.

The defendant followed the victim from the house, saying that he was going to “get” the victim, and he finally caught the victim in the yard. The defendant shoved the victim up against the door of a car and punched him in the left eye. The victim fell to the ground and, at the same time, the defendant grabbed the victim’s sweater, ripped it, caused it to wrap around the victim’s neck, pulled on it, and choked the victim. The victim then managed to ease out of the sweater.

While the victim was lying on the ground, his mother threw herself on top of him so that the defendant would not hit him again. The victim got up and ran to his grandmother’s house on Garden Street, about one mile away from the assault. When the victim arrived at his grandmother’s house, he was crying. The victim’s left eye was black and blue, swollen and almost completely closed due to the defendant’s punch. The victim’s grandmother called the police.

I

The defendant first claims that the trial court improperly instructed the jury in four distinct areas of the law relating to self-defense. The defendant asserts that the improper instructions deprived him of his constitutionally guaranteed rights to present a defense, to due process, and to a fair trial. We are unpersuaded.

We note at the outset that the defendant failed to file a request to charge concerning the law of self-defense. The defendant also failed to take an exception to the trial court’s self-defense charge. Thus, the defendant has not properly preserved his claims regarding the charge. The defendant seeks review of this claim pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant also seeks review under the plain error doctrine. We afford Golding review to these claims because the right to establish a defense is constitutional in nature. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

We preface our analysis of the defendant’s individual claims by once again stating, albeit briefly, the fundamental precepts that govern our review of these claims. “An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

A

We first address the defendant’s challenge to that portion of the trial court’s charge regarding the concept of “initial aggressor.” The defendant asserts that the trial court improperly defined that term. Having examined the trial court’s instruction concerning the concept of the initial aggressor in the context of the charge as a whole, we conclude that it was not reasonably possible that the jury was misled as a result of that instruction.

In the course of discussing the issue of self-defense, the trial court stated: “Finally, a person is not justified in using physical force if intending to cause physical injury to another person he provokes the use of physical force by that other person or if he is the initial aggressor. That is the first one to use physical force.” An instruction that the first person to use physical force is the initial aggressor, viewed in isolation, is an incorrect statement of our law. State v. Jimenez, 228 Conn. 335, 340, 636 A.2d 782 (1994). “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .” (Emphasis added.) General Statutes § 53a-19 (a). The fact that the trial court made an isolated, improper statement, however, does not end our inquiry. We must next determine whether it is reasonably possible that the incorrect statement misled the jury when viewed in light of the charge as a whole. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). In short, we are obligated to examine and consider “ ‘the substance of the charge rather than the form of what was said ....’” (Citations omitted.) State v. McMurray, 217 Conn. 243, 253-54, 585 A.2d 677 (1991).

The trial court carefully reviewed with the jury the substance of the concept of self-defense. Before its misstatement regarding the concept of initial aggressor, the trial court instructed the jury that “[a] person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the imminent use of physical force.” (Emphasis added.) The trial court further instructed: “Now to state it in a somewhat different fashion, a person is justified in the use of reasonable physical force upon another when he . . . reasonably believes that such force is necessary to protect himself from the use or the impending use of physical force by another.” (Emphasis added.) The trial court additionally stated: “You must find the defendant not guilty on grounds of justification unless the state has proved beyond a reasonable doubt . . . that the defendant did not believe that he was in imminent danger of injury and that the use of force was not necessary to protect himself.” (Emphasis added.) Moreover, the trial court instructed that “the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all the existing circumstances. The act leading to the defendant’s claim of self-defense means the act by another person need not be an actual threat or assault. The test is not what the other person . . . actually intended but the test is what [the other person’s] act, if any, caused the defendant to reasonably believe was his intentions. In other words, the danger need not have been actual if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable.” Furthermore, the trial court instructed: “Under such circumstances it is often possible to mistake an actual threat when none in fact existed.” The trial court also gave detailed instructions concerning the meaning of the term “reasonable” and repeatedly told the jury that the burden rested on the state to disprove beyond a reasonable doubt that the defendant acted in self-defense.

Our examination of the charge as a whole reveals that the trial court’s instructions neutralized any possible prejudice that may have resulted from the court’s isolated misstatement. The trial court definitively explained that the defendant justifiably could have been the first person to use physical force, as long as he was acting to defend himself from what he perceived to be the imminent use of physical force by the victim. “It was made abundantly clear that the defendant could be the first to use force without being the initial aggressor.” State v. DeMartin, 20 Conn. App. 430, 436, 568 A.2d 1034, cert. denied, 214 Conn. 803, 573 A.2d 316 (1990). Thus, we conclude that it is not reasonably possible that the jury was misled.

B

The defendant next asserts that the trial court improperly instructed the jury by stating, inter alia, that “a person claiming this right [of self-defense] must act honestly and conscientiously and not from anger or malice or revenge.” The defendant posits that this portion of the self-defense charge created an unauthorized limitation on the defense of justification, thus easing the burden cast on the state to disprove that defense beyond a reasonable doubt. We are persuaded that this instruction, when viewed in the context of the charge as a whole, presented the case to the jury so that it was not reasonably possible that the jury was misled.

The trial court instructed the jury as follows: “The law of self-defense does not imply the right of attack in the first instance or in mere retaliation. By definition, self-defense means the use of defensive force. Therefore, a person claiming this right must act honestly and conscientiously and not from anger or malice or revenge. He must not provoke or intentionally bring the attack upon himself in order to provide an excuse to use force against another person. A person is not justified in using physical force when with the intent to cause physical injury to another he provokes the use of physical force by such person.”

The defendant asserts that this claim is governed by the decision of our Supreme Court in State v. Corchado, 188 Conn. 653, 656-69, 453 A.2d 427 (1982). He posits that the trial court’s language in the present case is substantially similar to the trial court’s language that mandated reversal in Corchado. We conclude that the defendant’s claim is unsupported and that his reliance on Corchado is misplaced.

In State v. Corchado, supra, 188 Conn. 664, the trial court employed the following language in its discussion of the law concerning self-defense: “ ‘[Hjomicide is classified as justifiable when the defendant is without fault and is attacked and reasonably believing that he is in danger of death or great bodily harm kills his attacker to defend himself.’ ” (Emphasis added.) The trial court further instructed the jury that “ ‘[a]ny direct personal assault made in anger, by the accused, upon the deceased, of course, renders the accused the aggressor, and when he kills the person assailed, precludes him from pleading self-defense.’ ” Id., 666. In addition, the court instructed that “ ‘[i]t has been held that self-defense may not be claimed by one who deliberately places himself in a position where he has reason to believe his presence would provoke trouble.’ ” Id., 666-67. Moreover, the court instructed that “ ‘[i]t is also a concept of our law . . . that a person is the aggressor when he leaves a quarrel to go to his home to arm himself, and then returns to the scene of the quarrel and kills the other person.’ ” (Emphasis added.) Id., 667.

Our Supreme Court, in discussing why it concluded that these instructions were of such a nature as to make it reasonably possible that the jury was misled, reasoned “that the words ‘without fault,’ coming as they did at the start of the challenged instructions in combination with the other challenged instructions, as they impacted the jury, even in the context of the whole charge, erroneously deprived the defendant of the fair intendment of § 53a-19. The term ‘without fault’ was neither explained nor defined. The statute does not provide that a person be ‘without fault’ to come within its reach. It is not difficult to visualize sel f-defense sitúa-tions where, as here, there is some fault on both sides.” Id., 664-65. Further, in dealing with the balance of the charge, the Supreme Court said: “Initially, we note that singly, and certainly collectively, these instructions, fairly construed, foreclosed the defendant from his right to have the jury pass upon his claim of self-defense under § 53a-19. This is principally, if not entirely so, because the instructions, in effect, made him the initial aggressor not only because of the slapping incident but also because he returned to the scene after arming himself.” Id., 667.

It is clear that the language employed by the trial court in the present case is not similar to the language that mandated reversal in Corchado. It was the use of the words “without fault” in Corchado that “propounded an absolute for the jury while the statute does not.” Id., 665. Moreover, with respect to the balance of the charge in Corchado, the Supreme Court held that those instructions “include[d] some ‘directed verdict’ language, i.e., ‘a person is the aggressor when he leaves a quarrel to go to his home to arm himself, and then returns to the scene of the quarrel and kills the other person,’ ” which effectively removed from the jury its right to determine the defendant’s intent and what he reasonably believed. Id., 668. Thus, the language in the present case is clearly distinguishable in content and effect from that in Corchado.

We further recognize that § 53a-19 (a) provides in pertinent part that “a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force . . . .” Thus, the defendant must entertain an honest belief that the other person is using or is about to use physical force, and the defendant’s decision to use defensive force must be based on this sincere belief as opposed to anger, malice or revenge. See State v. Bailey, 79 Conn. 589, 598-99 n.c, 65 A. 951 (1907) (approving charge under common law of self-defense that stated in part: “The reasonable belief under which the accused acted must have been an honest belief . . . . [IJf you find the accused acted in malice, or if he had no such honest belief, or there were no reasonable grounds to hold such a belief, his defense of self-defense fails.”); see also State v. Prioleau, supra, 235 Conn. 281-83 n.9 (court approved, on unrelated grounds, self-defense charge stating that defendant must not act out of “anger, malice or revenge”). We conclude that it is not reasonably possible that the jury was misled by the trial court’s reference to the fact that the defendant must act honestly and conscientiously and not from anger, malice or revenge, having examined that reference in the context of the charge as a whole.

C

The defendant next contends that the trial court improperly instructed the juiy by substituting a purely objective standard for the required subjective-objective standard. A review of the charge demonstrates that this claim is without foundation. Although we agree with the defendant that an instruction employing only a simple objective standard would not withstand constitutional challenge in isolation, we are satisfied that based on the facts of the case, the issues presented, and the charge as a whole, there is no reasonable possibility that the trial court’s instruction misled the jury to an improper verdict. State v. Scarpiello, 40 Conn. App. 189, 205, 670 A.2d 856 (1996).

In support of his position, the defendant points to several places in the charge where the trial court stated in varying terms that reasonable force is the force that an average person of ordinary intelligence and under like circumstances would judge to be necessary to prevent injury, and no more. We recognize that the trial court made such statements, but that does not end our inquiry. “It is well settled that a jury’s evaluation of a claim of self-defense has both subjective and objective elements. State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990); State v. Corchado, supra, 188 Conn. 663; State v. Williams, 25 Conn. App. 456, 464, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). In evaluating a claim of self-defense, a trier of fact must first examine the danger that a defendant claims he faced. It is clear that here [t]he statute focuses on the [defendant] claiming self-defense. It focuses on what he reasonably believes under the circumstances .... State v. Corchado, [supra, 663]. State v. Williams, supra, 464. The jury must view the situation from the perspective of the defendant. . . . [T]he defendant’s belief [however] ultimately must be found to be reasonable. State v. Hall, supra, 586 n.7, quoting State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984).” (Emphasis in original; internal quotation marks omitted.) State v. Webb, 37 Conn. App. 722, 726-27, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 359 (1995).

We have reviewed the charge in its entirety and conclude that the trial court made clear to the jury that its self-defense analysis required the application of a subjective-objective standard. In its initial discussion of the law of self-defense, the trial court instructed the jury that “[a] person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the imminent use of physical force. And he may use such degree of force which he reasonably believes to be necessary for that purpose . . . .” (Emphasis added.) The trial court also explained that “the danger or apparent danger claimed by the defendant is to be determined/rom his standpoint at the time of the attack and under all the existing circumstances.” (Emphasis added.)

After the completion of the charge, but before jury deliberations commenced, the trial court recalled the jury and added to its instructions on the issue of self-defense. The trial court instructed the jury that it “must find the defendant not guilty on grounds of justification, in other words on grounds of self-defense, unless the state has proved beyond a reasonable doubt any one of the following elements. One is that the defendant did not believe he was in imminent danger of injury and the force used was necessary to protect himself. Now this is a subjective kind of test. In other words, what did the defendant perceive? . . . And as I told you and I want to make sure you understand . . . you’re looking at this from the defendant’s standpoint, at the time of the incident, under all the circumstances as they existed.” (Emphasis added.)

The trial court also added that “the action leading to the defendant’s claim of self-defense need not be an actual threat or assault. The test is not what [the victim] actually intended but what his actions and/or words, gestures caused the defendant to believe. In other words, it’s a subjective test on [his] part. In judging a danger to himself, the defendant is not required to act with infallible judgment. Usually [you] do not have time to act other than instantly, you don’t have time to deliberate and investigate. Under such circumstances, it is possible often to mistake an actual threat when none in fact existed. So that’s the subjective part of that test, all right? If the state disproves the defendant subjectively believed he was in imminent danger and the use of force was necessary, then they have met their burden on that.” (Emphasis added.)

The trial court further instructed as follows. “The other half of that, or the second part of that, is the objective test. In other words, the state could disprove that the defendant’s perception, even though he had it, he subjectively possessed it at the time, the state could disprove that it was reasonable. And I’ve defined reasonable for you on a number of occasions. And an objective or reasonable person test measures the conduct or the perception of one against a sort of general standard. In other words, it’s not what you believe at the time or perceive at the time, it’s what a reasonable person, a person of average, ordinary intelligence and like circumstances would judge to be the situation, and would judge that it was necessary to use self-defense to prevent injury. All right, so on that issue there’s both the subjective test what the defendant perceived under all the circumstances and an objective test, was it reasonable. The state [can] disprove one or the other.” (Emphasis added.)

Finally, the trial court instructed: “Then there is the second matter which has both subjective and objective tests. They’re essentially the same tests, and that [is] the force, if you believe force was used by the defendant, was that reasonable? And again, there’s a subjective test and an objective test. The subjective test is essentially the same as I just told you, exactly the same, what was the defendant’s perception under all of the circumstances as he reasonably, not as he reasonably, but as he believed them to be in an act involving instantaneous judgment without time to deliberate and investigate, that’s the subjective test. Then on that issue of whether or not reasonable force was used by the defendant we also have an objective test. ... In other words, was the reasonable force the type of force used merely to prevent injury and no more, which [an] . . . average person of ordinary intelligence and like circumstances would use? ... So there are two parts to each test; the state can disprove one or the other beyond a reasonable doubt. And if it does, then you would not find self-defense in this case.” (Emphasis added.)

We conclude that the trial court adequately instructed the juiy as to both the subjective and objective tests involved in a self-defense analysis, and that the defendant’s claim to the contrary is without merit.

D

The defendant next argues that the trial court improperly restricted the jury’s consideration of the defendant’s claim of self-defense. The defendant posits that the trial court limited the jury’s self-defense analysis to the charge of assault in the third degree, thereby forbidding the jury from applying a self-defense analysis to the charge of risk of injury to a child. The defendant claims that the trial court created such a restriction when it stated that self-defense was to be considered as an “added item” or an “additional matter” in conjunction with the crime of assault in the third degree. We are unpersuaded because (1) the trial court, although it did not specifically instruct that self-defense applied to the risk of injury count, sufficiently indicated by its language that self-defense applied to that count, and (2) the guilty verdict on the charge of assault in the third degree constituted a rejection by the jury of the defendant’s claim of self-defense, thereby making any alleged error harmless beyond a reasonable doubt.

1

The trial court made it clear to the jury that the concept of self-defense applied to both the assault count and the risk of injury count. The trial court began its instructions on the specific crimes charged as follows. “Now the substitute information that you have charges the crimes in a particular order. And although there is some relation . . . intellectually between these crimes charged we’re going to go in the order in which the state has brought those charges. I have to give you the elements on the three crimes charged as well as on the concept of self-defense. If you would look to the first count of the information, it charges risk of injury to a minor against the defendant. In this particular information, the means of the risk of injury the state’s attorney has [charged is] the word assault, assaulting, and of course he’s charged a specific date and time and a specific wilfulness.” (Emphasis added.) The trial court further explained that it would define the distinct charge of third degree assault to the jury in later instructions.

After explaining the state’s allegation that the defendant had committed the crime of risk of injury in part by committing an assault, the trial court, on two separate occasions, indicated to the jury that a finding of not guilty with respect to the charge of assault mandated a finding of not guilty with respect to the charge of risk of injury. The trial court stated: “[T]he state’s attorney has used the same wording in both charges while there are different elements . . . additional elements in the risk of injury charge. I will instruct you that if you find the defendant not guilty on the assault charge for whatever reason you must find him not guilty on the risk of injury charge because the assault makes up an element of the risk of injuiy charge.” (Emphasis added.) Later, in its summary, the trial court instructed that if “you find that the state has not disproved any one or more of the elements on self-defense then you would find the defendant not guilty of assault in the third degree. And if you find him not guilty of assault in the third degree you would also find him not guilty of risk of injuiy to a minor.” The trial court adequately conveyed to the jury that self-defense applied to both crimes.

“ ‘When examining a jury charge, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). We read the instructions as a whole to determine whether a reasonable possibility that the jury was misled by the charge exists. State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991); State v. Dizon, 28 Conn. App. 444, 447, 611 A.2d 432 (1992); State v. Fernandez, 27 Conn. App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992).’ State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).” State v. Hansen, 39 Conn. App. 384, 406, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Applying that test to the present claim, the charge as a whole was fair, just and adequate, and it sufficiently alerted the jury that the defense of self-defense applied to the risk of injuiy count. It is therefore not reasonably possible that the jury was misled.

2

The jury was fully instructed as to the law of self-defense, and it subsequently found the defendant guilty of assault in the third degree. As a consequence, the jury rejected the defendant’s claim of self-defense. “[T]he jury’s verdict of guilty on the offense of [assault in the third degree] was necessarily a rejection of the defense of self-defense. Since the elements of self-defense as applied to [risk of injury to a child] would have been the same as those applied to [assault in the third degree], the defendant would not have benefited by [a specific] instruction that the defense was applicable to [risk of injury to a child].” State v. Hall, 213 Conn. 579, 589, 569 A.2d 534 (1990). Thus, any alleged error was harmless beyond a reasonable doubt.

II

The defendant next claims that the trial court improperly failed to include limiting judicial gloss in its jury instructions concerning the elements of the crime of risk of injury to a child. The defendant asserts that this omission deprived him of his right to due process. The defendant concedes that this claim was not raised in the trial court, but he asserts that the claim is reviewable under the well known rubric of State v. Evans, supra, 165 Conn. 70, and State v. Golding, supra, 213 Conn. 239-40.

“The record here is adequate to review the alleged claim and the claim is of constitutional magnitude because the defendant asserts that the trial court failed to instruct the jury on an essential element of the crime charged. See State v. Tweedy, 219 Conn. 489, 510, 594 A.2d 906 (1991); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988).” State v. Sparks, 39 Conn. App. 502, 512-13, 664 A.2d 1185 (1995). We conclude, however, that the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

The defendant asserts that the trial court improperly omitted from its instructions that an act likely to impair the health of a child under the second prong of § 53-21 must be deliberate, blatant abuse in order to be unlawful. The defendant posits that the trial court is obligated to charge the jury in terms that include the use of these specific words. For this proposition, the defendant relies principally on State v. Schriver, 207 Conn. 456, 466, 542 A.2d 686 (1988) (limiting “type of physical harm prohibited by § 53-21 to instances of deliberate, blatant abuse”). While we recognize that the proscribed conduct is limited to actions that constitute deliberate, blatant abuse; id.; we do not agree that a juiy charge is improper if it fails to recite these talismanic words.

A trial court properly explains the second prong of the crime of risk of injury to a child when it makes clear to the jury that to be unlawful the acts of the defendant must be purposeful and intentional acts, not just any acts. See State v. Torrice, 20 Conn. App. 75, 81, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989) (crime of risk of injury to child as interpreted by Schriver adequately explained where “[t]he trial court told the jury that it was not permitted to find the defendant guilty for committing ‘any act,’ but must find that he acted wilfully and ‘that he either intended the resulting injury to the victim, or he knew that the injury would occur, or that his conduct was of such a character that it demonstrated a reckless disregard of the consequences’ ”).

Here, the trial court’s instructions properly conveyed to the jury that the defendant’s actions, in order to be considered unlawful, must have been the type of deliberate, blatant actions discussed in Schriver. The trial court charged, in pertinent part, that “[a] person who wilfully causes any child under the age of sixteen to be place[d] in such a situation that his health is likely to be injured, is guilty of this offense. The statute in so far as it applies here prohibits certain behavior likely to physically injure a minor under the age of sixteen years. The behavior which is prohibited is the creation of a situation inimical or harmful to the minor’s physical welfare. . . . The first element is that the defendant’s conduct was wilful. The word wilful means doing a forbidden act purposefully in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent and that he intended the resulting injury to the victim. Thus, wilful misconduct is intentional misconduct, which is conduct done purposefully and with knowledge of [its] likely consequences. . . . The second element is that the defendant created a situation that was likely to be harmful to the victim’s health. Health means the state of being hale, sound or whole in body, mind or well being. The focus is on whether the situation was such that harm to [the victim’s] health [was] likely to occur. The third element is that the victim was at the time of the incident less than sixteen years of age, that is, that he had not reached his sixteenth birthday.” (Emphasis added.) The trial court continued by summarizing the elements of the crime, explaining again that in order to convict the defendant, the state must prove that he acted wilfully and that he caused a child to be placed in such a situation that the child’s health was likely to be injured.

On the basis of our review of the charge as a whole, we conclude that the trial court’s instructions concerning the charge of risk of injury to a child adequately explained to the jury the elements of the crime with sufficient specificity to meet the demands of State v. Schriver, supra, 207 Conn. 466.

Ill

The defendant next claims that the evidence was insufficient to permit the jury to have found the defendant guilty of the charge of risk of injury to a child. We disagree.

“We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

Having carefully reviewed the evidence, we conclude that it was sufficient to support the defendant’s conviction of risk of injury to a child. The evidence established that the defendant pushed the victim around the interior of the house and shoved the victim against the kitchen wall. When the victim picked up a knife, immediately dropped it, and ran outside, the defendant pursued the victim. When the defendant caught up with the victim in the yard, the defendant shoved the victim against a car and punched the victim in the eye, causing the eye to turn black and blue and to swell almost closed. The victim fell to the ground. Finally, the evidence discloses that the defendant choked the victim by pulling the victim’s sweater with sufficient force to cause the sweater to rip.

The defendant’s claim regarding the sufficiency of the evidence is without merit.

IV

The defendant next claims that his right not to be placed in double jeopardy, guaranteed by the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, was violated when he was convicted and sentenced for committing both assault in the third degree and risk of injury to a child. We do not agree.

The defendant concedes that this is yet another claim that was not properly raised or preserved in the trial court, and, accordingly, he seeks review of this claim under State v. Evans, supra, 165 Conn. 70, and State v. Golding, supra, 213 Conn. 239-40. While we agree that he is entitled to review of this unpreserved claim, we do not agree that the defendant’s right to be free of double jeopardy was violated, and, thus, the defendant fails to satisfy the third prong of Golding.

The defendant posits that the charges against him arose from the same transaction and that they allege the same act. The defendant asserts that he was subjected to multiple punishments for the same offense because the charge of assault in the third degree was included in the charge of risk of injury to a child. The defendant bases this argument on the fact that the language employed in the long form information alleged that the defendant committed risk of injury to a child by committing an assault. The state concedes that both of the charged offenses arose out of the same act or transaction. The state asserts, however, that the defendant cannot prevail on his double jeopardy claim because he has failed to demonstrate that the two convictions are convictions for the same offense. We agree with the state.

The double jeopardy clause provides three protections. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Here, the defendant limits his claim to the third protection of the double jeopardy clause and asserts that he is being twice punished for the same offense.

“The test for determining whether two charged offenses constitute the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id., 304; State v. John, [210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989)]. In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial. . . . State v. Greco, [216 Conn. 282, 291, 579 A.2d 84 (1990)]; State v. John, supra [695]. The issue, though essentially constitutional, becomes one of statutory construction. State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 8-9, 629 A.2d 386 (1993).

We have held that “[e]ven if the assault charge and the risk of injury charge arose out of the same act . . . the elements of the two charges are distinct and dissimilar and are not the same offense for double jeopardy purposes. State v. Trujillo, [12 Conn. App. 320, 336, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987)]; State v. Martin, 189 Conn. 1, 7 n.2, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).” State v. Davis, 13 Conn. App. 667, 671-72, 539 A.2d 150 (1988); see also State v. Torrice, supra, 20 Conn. App. 95-96 n.13 (similar double jeopardy claim rejected on same grounds and because “defendant [took] far too narrow a view of the language used” in information); State v. DeMayo, 18 Conn. App. 297, 300-301, 557 A.2d 571, cert. denied, 212 Conn. 807, 563 A.2d 1355 (1989) (defendant’s double jeopardy claim rejected where state alleged same conduct constituted sexual assault and risk of injury to child). The crime of assault in the third degree; General Statutes § 53a-61; does not require that the victim be a child under the age of sixteen, while the crime of risk of injury to a child does have such a requirement. General Statutes § 53-21. Moreover, unlike assault in the third degree, the charge of risk of injury to a child does not require proof of an actual injury, but only that the actions of the defendant exposed the victim to a situation that potentially could impair his health. State v. Sullivan, 11 Conn. App. 80, 98-99, 525 A.2d 1353 (1987). Further, in order to convict the defendant of the charge of assault in the third degree, the state was obligated to prove that the defendant had a specific intent to cause physical injury to the victim. General Statutes § 53a-61. The charge of risk of injury does not require such a specific intent. State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988); State v. Torrice, supra, 95.

The defendant’s double jeopardy claim is therefore without merit.

V

Finally, the defendant claims that if we reverse his convictions of assault in the third degree and risk of injury to a child, we should accordingly reverse his conviction of violation of probation, because that conviction is based on the earlier convictions. Having concluded that the defendant cannot prevail in his attack on the underlying convictions, we do not address this final claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-61 (a) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       In the first case, the defendant was also charged with threatening in violation of General Statutes § 53a-62 but was found not guilty of that charge.

       See Practice Book § 852.

       See Practice Book § 853.

       See Practice Book § 4185.

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

       The defendant in Corchado had returned to the scene of the incident after arming himself, and he subsequently slapped the victim’s face in response to a “mean smile.” State v. Corchado, supra, 188 Conn. 655-56.

       The defendant also claims that the trial court improperly applied its self-defense instructions to the charge of risk of injury. First, we note that this claim contradicts the defendant’s assertion that the trial court improperly limited the jury’s self-defense analysis to the charge of assault. Second, the defendant has inadequately briefed this claim. In support of this claim, he states only the following: “Because the court’s instructions on self-defense, as argued above, were erroneous, they infected the jury’s verdict on the risk of injury charge, causing the jury improperly to reject the defendant’s claim of self-defense, as it applied directly to the assault count, and by incorporation to the risk of ipjury count.” The defendant has furnished us with no legal analysis of this claim, and has provided no case citations or other authority in support of this claim and, therefore, we decline to review it. State v. Prioleatt, supra, 235 Conn. 294.

       Although we conclude that the trial court conveyed to the jury that the concept of self-defense applied to the charge of risk of injury, we note that if the trial court had not done so, it would not have been required to give such an instruction, sua sponte. State v. Torrice, 20 Conn. App. 75, 83, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989).

       See footnote 1.

       As a corollary to the defendant’s claim, the defendant asserts that because the trial court did not properly instruct the jury pursuant to Schriver, it permitted the jury to find the defendant guilty of risk of injury if the defendant’s misconduct produced a “very minor injury.” Because we conclude that the trial court’s instructions properly explained the crime of risk of injury as construed in Schriver, the defendant’s assertion consequently fails. We note, however, that the defendant ignores the fact that the state was not obligated to prove that the victim had sustained injury of any nature in order to establish criminal liability for risk of injury to a child. The state was only obligated to prove that the egregious conduct of the defendant was “likely to impair the health” of the child. General Statutes § 53-21. “Section 53-21 of the General Statutes does not require a showing that, in fact, the health of the child was impaired but only that the conduct or the acts of the defendant were such that the health of the child was likely to be impaired.” State v. Palozie, 165 Conn. 288, 291-92, 334 A.2d 468 (1973).

       The fifth amendment to the United States constitution provides in pertinent part: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

       The defendant has failed to provide us with a separate analysis of his claim under the Connecticut constitution, and, therefore, we choose not to review this claim under the Connecticut constitution. State v. Scarpiello, supra, 40 Conn. App. 198 n.4. This does not mean, however, that we are not able to afford review of such a claim if we decide to do so. Id.


author: FOTI, J. SCHALLER, J.,

text:
    COMMISSIONER OF ADMINISTRATIVE SERVICES v. WILLIAM GERACE
    (14273)
    Foli, Schaller and Spallone, Js.

      Argued January 12
    decision released April 2, 1996

      Robert A. Nagy, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Denise Mondell, assistant attorney general, for the appellant (state).

      David M. Poirot, with whom, on the brief, was Steven F. Meo, for the appellee (defendant).
   FOTI, J.

The plaintiff appeals from the judgment rendered in favor of the defendant following the trial court’s acceptance of the fact finder’s report over the plaintiffs objection. We affirm the judgment of the trial court.

This action was commenced by the plaintiff against the defendant, an attorney, for recovery of prior grants of public assistance, pursuant to the program of Aid to Families with Dependent Children. The complaint claims that the defendant violated the plaintiffs statutory lien rights to the proceeds of a cause of action of a parent of a beneficiary of assistance. The plaintiff predicates the action on the provisions of General Statutes §§ 17b-93 and 17b-94. The matter was heard by a fact finder who recommended that judgment be rendered in favor of the defendant.

There is no dispute about the essential facts. The defendant represented a client in a personal injury action arising from an automobile accident, brought against another individual and the state. On July 14, 1992, the plaintiff notified the defendant of its statutory lien without specifying the amount. The letter, after citing the appropriate statutes, directed the defendant that, upon settlement or other recovery, he was immediately to send a letter to the plaintiff requesting a final statement of the state’s claim. The letter further indicated that if a final statement was not sent within thirty days of that request, the defendant would be free to release the full proceeds. On September 4,1992, following settlement of the matter, the defendant sent a one line letter to the plaintiff stating: “Please provide me with the amount of the State’s lien.”

On October 3,1992, forty days after sending the letter and not having received a response, the defendant disbursed the balance of the settlement proceedings.

The fact finder concluded that the defendant had complied with the statute in disbursing the proceeds of the settlement, not having been informed of the amount of the claimed lien within thirty days of the plaintiffs having received written request of the amount of such lien.

The primary issue on appeal is whether the trial court properly concluded that the defendant’s letter complied with § 17b-94. The plaintiff argues that the letter was an insufficient request because it failed to mention that the case had been settled, or even to request a “final” amount of the hen. The plaintiff acknowledges that the statute does not expressly require a notification of settlement in order to trigger the thirty day response time, but argues that the obligation to do so is necessarily implied therein.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . .” (Citations omitted; internal quotation marks omitted.) Dos Santos v. F. D. Rich Construction, Inc., 233 Conn. 14, 20, 658 A.2d 83 (1995). We look to the legislative history of a statute only if it is ambiguous. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). A statute does not become ambiguous because the parties argue its meaning differently. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990). The legislative intent is to be found, not in what the legislature intended to say, but in the meaning of what it did say. Lees v. Middlesex Ins. Co., 219 Conn. 644, 652, 594 A.2d 952 (1991). We must construe a statute without reference to whether we feel that it might be improved by adding to it or interpreting it differently. See Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989). It is our duty to apply the law, not to make it. Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987).

Section 17b-94 provides that “if, after settlement of the cause of action the commissioner . . . does not inform the attorney ... of the amount of the lien which is to be paid . . . within thirty days of receipt of written request . . . for such information, [the] attorney may distribute [the] proceeds . . . .” The language of the statute is clear and unambiguous. We, therefore, assume that it expresses the intention of the legislature and we need inquire no further. Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn. App. 85, 93, 654 A.2d 1252, cert. denied, 233 Conn. 902, 657 A.2d 641 (1995).

The plaintiff argues that the construction of a statute by the agency charged with its enforcement is entitled to considerable deference. While that may ordinarily be so, where an administrative interpretation leads to a result that is contrary to the plain language of the statute, we will ascertain and give effect to the apparent intent of the legislature. State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). Our determination is that the statutory language yields a plain and unambiguous resolution, and we need inquire no further. State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

The Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., prescribes a statutory method for the adoption, amendment or repeal of any regulation. The UAPA procedures for the adoption of regulations are intended to govern that part of the administrative process that resembles a legislature’s enactment of a statute. The plaintiff, as an administrative agency, has the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute. See Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 361-63, 417 A.2d 358 (1979). The plaintiff does not claim to have adopted any regulations in this regard. Of course, when a statute and a regulation conflict, the statute must prevail. Yanni v. DelPonte, 31 Conn. App. 350, 357, 624 A.2d 1175 (1993); see also Austin v. Housing Authority, 143 Conn. 338, 348-49, 122 A.2d 399 (1956).

Further, while we recognize that the action of a defendant in disbursing the funds in disregard of the state’s hen constitutes a conversion for which the state is entitled to damages; State v. Angelo, 39 Conn. App. 709, 713, 667 A.2d 81 (1995); and that conversion is a tort; Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994); we also recognize that the punitive nature of the action against the defendant requires a strict interpretation of the statute. The statute’s clear language directs the attorney to request the amount of the lien and nothing more. We assume, therefore, that the language expresses the legislature’s intent. Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 213, 571 A.2d 104 (1990).

The plaintiff also claims that the trial court should not have accepted the fact finder’s report in that material and probative evidence as to the agency’s interpretation of § 17b-94 was excluded along with the practical reasons for such inteipretation. Our review of the record shows the claim to be without merit because the statute is unambiguous.

The judgment is affirmed.

In this opinion SPALLONE, J., concurred.

SCHALLER, J.,

dissenting. The dispositive issue in this case is whether General Statutes § 17b-94 should be interpreted to permit an attorney to disburse settlement proceeds to a beneficiary free of liability for any loss the state may thereby sustain after that attorney has requested the amount of the state’s lien against such proceeds without notifying the commissioner that the case has been settled. Because the trial court’s interpretation of § 17b-94 leads to an irrational result that thwarts the legislative purpose, I respectfully dissent. Although I agree with the majority’s statement of essential facts, it is important to emphasize that the defendant attorney did not notify the commissioner of the September 4, 1992 settlement.

My disagreement is premised on fundamental principles of statutory interpretation. “ ‘[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.’ ” State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996), quoting State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995). “ ‘It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990). That axiom only applies in full force, however, “[w]here . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is raised in applying the statute in a particular case. . . . Anderson v. Ludgin, 175 Conn. 545, 554, 400 A.2d 712 (1978) ....’” (Emphasis in original.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992).

This is a situation in which “application of the statute . . . reveals a latent ambiguity in seemingly unambiguous language . . . .” Id., 227. Section 17b-94 is ambiguous because it requires the commissioner to respond to an attorney’s request for the amount of the state’s hen within thirty days in cases in which settlement or judgment has occurred, but it fails to specify how the commissioner is to know that the pivotal event has occurred. In other words, the operation of the thirty day response requirement depends upon the fact of settlement or judgment, but § 17b-94 fails expressly to provide who must advise the commissioner of that fact.

Given that latent ambiguity, we are entitled to “ ‘turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity.’ University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). We particularly look to the history, the purpose, the objective and the underlying policy of the statute. Anderson v. Ludgin, supra [175 Conn. 554].” Rose v. Freedom of Information Commission, supra, 221 Conn. 227.

A search of legislative history reveals that Public Acts 1977, No. 77-263, the act that brought § 17b-94 into existence, was enacted in response to the type of situation presented in State v. Blawie, 31 Conn. Sup. 552, 334 A.2d 484 (1974), cert. denied, 167 Conn. 693, 333 A.2d 70 (1975) which provoked complaints from the trial bar that the state’s response time on requests for hen amounts was inordinately long. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1977 Sess., p. 691. Public Acts 1977, No. 77-263, was designed, therefore, to shorten the response time in situations in which a settlement or judgment had occurred so that attorneys would be able to disburse funds to their clients and the state without inordinate delay. See 20 S. Proc., Pt. 4, 1977 Sess., pp. 1416-17; 20 H.R. Proc., Pt. 8, 1977 Sess., pp. 3214-15.

The legislative history makes it clear that the legislature enacted Public Acts 1977, No. 77-263, not only for the benefit of the beneficiary and the attorney, but for the benefit of the state as well. Senator Salvatore DePi-ano stated that the delay “has caused inconvenience not only to the welfare recipient but also to the State of Connecticut in that the State of Connecticut is being deprived of money that would normally come to them . . . .” 20 S. Proc., Pt. 4, 1977 Sess., p. 1417. To effectuate these purposes and goals, “[w]hat this bill would do is require the attorney for the recipient or for the beneficiary to notify the department and within thirty days of such notification the Commissioner must advise the attorney of the amount of the lien . . . .” (Emphasis added.) 20 H.R. Proc., Pt. 8, 1977 Sess., pp. 3214-15, remarks of Representative Ernest N. Abate.

The 1977 amendment clearly conditions the thirty day response period on the occurrence of two events. The first is settlement or judgment; the second is receipt of notice of such in a written request by the attorney for a beneficiary. The commissioner forfeits the state’s rights under § 17b-94 only when both events occur and are followed by the commissioner’s failure to respond within thirty days. Aside from the beneficiary, the only person who possesses all of the information necessary to notify the commissioner is the beneficiary’s attorney.

If the commissioner is deemed to forfeit the state’s rights against the attorney under § 17b-94 even when the attorney fails to notify the commissioner that the situation is one that requires the thirty day response, a bizarre and irrational result is produced. In order to protect the state’s lien rights, the commissioner will be obligated to respond within thirty days to every request for lien amounts. The legislative goal of specifying the particular situations that require speedy action for the benefit of beneficiaries, their attorneys and the state will be subverted because the commissioner will be compelled to respond with equal speed to every request. As a consequence, it will become more difficult to provide speedy responses to fulfill the legislative purpose, and the purpose will be thwarted.

Our Supreme Court recently reiterated that “ ‘[i]n seeking to discern [legislative] intent, 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.’ ” State v. Burns, supra, 236 Conn. 22-23, quoting State v. Spears, supra, 234 Conn. 86-87. The court continued: “If ‘a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to “bizarre results” destructive of that purpose, the former should prevail.’ ” State v. Burns, supra, 23, quoting State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988).

A statutory interpretation that fails to recognize the obligation of the attorney to notify the commissioner about the settlement or judgment produces a result that neither comports with common sense nor takes into account the interest of the state. “Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979); Fairfield v. D’Addario, 149 Conn. 358, 363, 179 A.2d 826 (1962) (implied condition precedent of reasonable notice); State v. Boles, 5 Conn. Cir. Ct. 22, 30, 240 A.2d 920 (1967) (“ ‘reasonable notice’ is a relative term which varies with the circumstances under which it is called into use”). Because § 17b-94 grants the state an interest in the adjudication of claims by welfare recipients and is designed to provide benefits to the state, common sense dictates that the commissioner should be given notice of the result of such an adjudication.

A statute should not be interpreted to thwart its purpose simply because the legislature’s purpose could have been more clearly stated. See Frillici v. Westport, 231 Conn. 418, 435-36, 650 A.2d 557 (1994). “ ‘[W]e will assume that the legislature intended to accomplish a reasonable and rational result.’ ” State v. Brown, 235 Conn. 502, 516, 668 A.2d 1288 (1995), quoting State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995). Although my interpretation of § 17b-94 identifies an obligation on the part of the beneficiary’s attorney that is not expressly stated in the statutory language, it is entirely consistent with the legislative history and a common sense reading of the statute, and is the only interpretation that produces a reasonable and rational result. Accordingly, I would reverse the judgment of the trial court.

For the foregoing reasons, I respectfully dissent.

       The plaintiff is the state, acting by and through R. Michael Dunn, commissioner of administrative services.

       General Statutes §§ 17b-93 and 17b-94 were formerly General Statutes (Rev. to 1993) §§ 17-83e and 17-83f. Although this action was commenced prior to recodification, the parties have employed the current statutory citations, as will we.
      General Statutes § 17b-93 (a) provides in relevant part: “[T]he parents of an aid to dependent children beneficiary shall be liable to repay, subject to the provisions of section 17b-94, to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children. . . .”
      General Statutes § 17b-94 (a) provides in relevant part: “[I]f, after settlement of the cause of action, or judgment thereon, the commissioner of administrative services does not inform the attorney for the beneficiary of the amount of the lien which is to be paid to the commissioner of administrative services within thirty days of receipt of the written request of such attorney for such information, such attorney may distribute such proceeds to such beneficiary and shall not be liable for any loss the state may sustain thereby.”

       We perceive the action to be punitive in nature because it creates the personal liability of the attorney for funds that he may have distributed to his client.

       In State v. Blawie, supra, 31 Conn. Sup. 558, the Appellate Division of the Court of Common Pleas held that the defendants’ attorneys’ disbursement of funds in disregard of the state’s lien on the funds constituted a conversion despite the state’s failure to take affirmative action to insist on its lien rights. The court noted that the defendants’ liability for the conversion attached when the state gave the defendants notice of its statutory lien. Id., 556.

       AH hough iiio majority assorts that iiie statute involves “punitive” action ¡•gainst the attorney m this situation, no authority is offered fori hat proposi-tíon and I am not aware of any. Under § 17b-94, the state possesses a lien on the proceeds of settlement and the attorney commits a conversion if he disburses them in disregard of the state’s lien. State v. Angelo, 39 Conn. App. 709, 713, 667 A.2d 81 (1995).