author: FOTI, J.

text:
    JAMES SIDELLA v. KELLY SERVICES, INC., ET AL.
    (15540)
    Dupont, C. J., and Foti and Heiman, Js.

      Considered March 13
    officially released April 23, 1996

      Timothy E. Welsh, in support of the motion.
   FOTI, J.

In this appeal from a decision by the workers’ compensation review board (board), the defendants Kelly Services, Inc. (Kelly), and CNA Insurance Company (CNA) move for review of the workers’ compensation commissioner’s (commissioner) denial of their motion for articulation. We conclude that the motion for review is improper and therefore dismiss the motion for review.

The following facts are relevant to the disposition of this motion. After an injury to the plaintiffs spine in 1989, the plaintiffs employer at that time, Furniture Concepts, Inc. (Furniture Concepts), accepted the com-pensability of the injury. The plaintiff underwent surgery and, thereafter, did not return to work with Furniture Concepts. He later took a job with Kelly. While working for Kelly in 1993, the plaintiff sustained further injuries to his spine as a result of another accident.

Although Kelly and its insurer, CNA, accepted com-pensability for the 1993 injury, they sought apportionment of the claim with Furniture Concepts and its insurer, Aetna Casualty and Surety Company. They argued that the 1989 accident and the 1993 accident were concurrent causes contributing to the plaintiffs injury. The commissioner denied Kelly and CNA’s request for apportionment and found that there were two separate identifiable traumatic incidents. Kelly and CNA appealed from that decision to the board. The board affirmed the commissioner’s decision and this appeal followed.

After the appeal was filed, Kelly and CNA filed a motion requesting that the commissioner articulate her decision. The commissioner denied the motion for articulation. Kelly and CNA then filed the present motion in this court for review of the commissioner’s denial of the motion for articulation. The motion argues that the commissioner never made a finding as to whether both accidents were contributing causes to the plaintiffs current injury.

In Plati v. United Parcel Service, 33 Conn. App. 490, 636 A.2d 395 (1994), this court indicated that it would have been proper for the plaintiff-appellant to file a motion for articulation of the commissioner’s decision and a motion for review, if necessary, to create an adequate record for review for this court. The appeal in Plati, however, was taken directly from the commissioner’s decision to this court pursuant to General Statutes § 31-290a (b) (2).

Plati can be distinguished from this action because this appeal was not taken directly from the commissioner’s decision pursuant to § 31-290a (b) (2), but instead was taken from the board’s decision affirming the commissioner’s ruling, pursuant to General Statutes § 31-301b. Despite Kelly and CNA’s contention that the appeal is taken from both the commissioner’s and the board’s decisions, § 31-301b provides for an appeal to this court in a workers’ compensation case from only the board’s decision.

Under the facts of this case, a motion for review filed pursuant to Practice Book § 4054 is not proper. Section 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051, may within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .” In Reising v. General Dynamics Corp./Electric Boat Division, 38 Conn. App. 637, 638, 661 A.2d 1042 (1995), we concluded that a motion for review of the board’s denial of a motion for articulation is improper as the board acts not as a trial court, but as an appellate court in workers’ compensation appeals. In this case, the motion for articulation was directed to the commissioner, who does act as a trial judge. This appeal is not, however, taken from the commissioner’s decision, but instead is taken from the board’s decision. Because this appeal is taken from the board’s decision, the issues on appeal involve review of only the board’s action. Although this court may consider the commissioner’s decision on appeal, we would consider it only in light of the action taken by the board as to that decision. For these reasons we conclude that the motion for review is improper.

The motion for review is dismissed.

In this opinion the other judges concurred.

       The Second Injury Fund is also a defendant to this proceeding, in addition to Kelly, CNA, Furniture Concepts and Aetna Casualty and Surety Company.

       General Statutes § 31-290a (b) provides in relevant part: “Any employee who is so discharged or discriminated against may ... (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint .... After the hearing, the commissioner shall send each party a written copy of his decision. . . . Any party aggrieved by the decision of the commissioner may appeal the decision to the appellate court.”

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the appellate court.”


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    TIMOTHY R. E. KEENEY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. FAIRFIELD RESOURCES, INC., ET AL.
    (13735)
    Spear, Hennessy and Healey, Js.
    Argued September 25, 1995
    officially released March 14, 1996

      Nancy Burton, for the appellants (Laurel Hill Association et al.).

      Leonard A. Fasano, with whom, on the brief, was Edward N. Lemer, for the appellees (defendants).

      Krista E. Trousdale, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (plaintiff).

       March 14, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   HEALEY, J.

This case involves an action commenced in November, 1993, by the plaintiff commissioner of environmental protection (commissioner) against the defendants to enforce certain state environmental laws. The commissioner sought, inter alia, injunctive relief pursuant to certain statutes and orders requiring the defendants to forfeit moneys to the state pursuant to certain statutes for each violation. The trial court denied intervenor status to certain individuals and an association (intervenors), who have appealed from the judgment denying intervention. We conclude that inter-venor status should have been granted to each of the intervenors. Accordingly, we reverse the judgment and remand the matter with direction to grant the requests to intervene.

We will not set out in this opinion the background circumstances alleged by the commissioner in his complaint in this action. The circumstances are essentially the same as those involved in Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 674 A.2d 1335 (1996) (zoning case), which was argued before this court at the same time as the present appeal. This appeal, which arises out of the same quarry mining operation in Brookfield, involves conduct by the defendants allegedly in violation of a condition of a permit earlier issued by the commissioner to divert certain waters of the state. This appeal also involves other actions by the defendants taken without the required permits and resulting in a diversion of waters of the state, including the construction and maintenance of a dam across Limekiln Brook, the excavation of the streambed of Limekiln Brook and the daily pumping of over 50,000 gallons of water from the sump pump at the mine site. Further allegations include conducting and maintaining a “regulated activity,” to wit, the operating of the mine, without a permit, the discharging of materials into the waters of the state at the mine site without a permit, and “causing pollution of the waters of the State.” In bringing this action directly to the Superior Court in Hartford, the commissioner exercised one of the options available to him under General Statutes § 22a-430 (d).

On January 12, 1994, the Brookfield zoning commission (zoning commission), which is the plaintiff in the companion case filed a notice of intervention in this action, purportedly as a matter of right pursuant to General Statutes § 22a-19 (a).* In that verified pleading, the zoning commission sets out at length the alleged operation and conduct of the defendants at the mine site without the required permits. It asserts that “the Zoning Commission of Brookfield is charged with the enforcement of state and local zoning regulations and statutes,” and it maintains that the defendants continue to conduct their activities on these premises despite the earlier cease and desist order. It further pleads the statutory language, alleging that the natural resources removal activity, dam construction and water diversion constitute “conduct which has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and other natural resources of the Town of Brookfield and the State of Connecticut.”

Thereafter, four separate notices of intervention were filed by Edward C. Huse, the Laurel Hill Association (association), Allen B. Blackman and Lloyd Willcox. Each of these four notices sets out that the filer intervenes in these proceedings in accordance with the provisions of § 22a-19 (a). Each filer was denied intervenor status by the court, O’Neill, J., at a hearing on May 31, 1994.

The association filed its notice of intervention through Richard Gereg, its president. That notice alleges, inter alia, that the association is an organization with a membership in excess of 120 persons, whose families own and occupy property in the neighborhood of Laurel Hill Road in Brookfield, and that it was organized to protect residential property values in the Laurel Hill Road vicinity “and to see to it that any and all governmental agencies which have jurisdiction will exercise their jurisdiction properly to ensure enforcement of laws, statutes and regulations enacted to protect and conserve the environment.” Incorporating language from § 22a-19 (a), the notice alleges that the proceeding involves “conduct which has or is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

On May 23, 1994, the defendants filed separate objections to the notice of intervention filed by the association, Blackman and Willcox. Each objection argued that “this case is not an ‘administrative, licensing or other proceeding’ . . . nor ... a review of any administrative, licensing or other proceeding. This case is an enforcement action brought by the Commissioner of Environmental Protection (‘DEP’) in which the DEP has sought injunctive relief and forfeiture damages.” Each objection states further that the intervenors’ “basis for intervention is misplaced, and they should not be permitted to intervene in this case as a matter of right.”

On May 31, 1994, a hearing was held in the Hartford Superior Court before Judge O’Neill, on the defendants’ objections to intervention by the proposed intervenors. The case of Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 629 A.2d 447 (1993), and particularly footnote 9 of that opinion, appeared to control the court’s decision sustaining the defendants’ objection to the intervention of the four proposed intervenors. Early in that hearing, the court asked the intervenors’ counsel: “How do you get around footnote 9” of the Appellate Court’s Polymer decision. While agreeing that this was an environmental action as well as an “original action,” the trial court rejected the claim that the language of § 22a-19 (a) was ambiguous and declined to examine its legislative history. In that context, the commissioner, in supporting intervention, argued in that court that the legislative history clearly demonstrated the intent to ensure citizen participation in environmental matters. In doing so, the commissioner pointed to that portion of the legislative history that demonstrated the legislature’s intention to allow citizen intervention in environmental cases. In that regard, the legislative debate on this legislation indicated an intent to expand access to the courts in “alleged polluting activity.” 14 H.R. Proc., Pt. 2, 1971 Sess., p. 739, remarks of Representative John F. Papandrea. The trial court opined that the legislature “has given us two paths” and referred to General Statutes §§ 22a-16 and 22a-19 (a). Section 22a-16 permits the maintaining of an independent action for obtaining relief against alleged unreasonable pollution. Section 22a-19 permits intervention “[i]n any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . .” That broad language strongly suggests citizen intervention at both the judicial level as well as what may be generally denominated the “agency” level. The trial court stated that §§ 22a-16 and 22a-19 had to be read together. The trial court stated that doing so “reinforced [his] view that one is for an action, which intervenors can certainly bring and one is for review of administrative proceedings.” The trial court stated, “I have to follow the Connecticut Appellate Court,” referring to the Appellate Court’s decision in Polymer. The court thereupon sustained the defendants’ objections to all four who had filed to intervene. The unsuccessful intervenors have appealed from the judgment denying § 22a-19 intervention.

On appeal, the intervenors claim that they properly pleaded § 22a-19 (a), that they have the right to intervene in this action under the clear authority of Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 526 A.2d 1329 (1987), and that the denial of § 22a-19 (a) intervention thwarts the legislative purpose of the Environmental Protection Act (EPA), General Statutes § 22a-l et seq.

The commissioner raises two questions in this appeal: whether the intervenors should be allowed to intervene in these cases under § 22a-19 (a) and whether the trial court improperly relied on the Appellate Court’s decision in Polymer in denying intervention. We incorporate in this opinion all that we said in the companion zoning case about the legal viability of the Appellate Court’s Polymer decision, including its availability as an advisory opinion. See Zoning Commission v. Fairfield Resources Management, Inc., supra, 41 Conn. App. 89.

The intervenors argue that they have properly pleaded § 22a-19 (a) intervention. The defendants have not raised any question about that claim and it appears to us that the intervenors have properly pleaded § 22a-19 (a) intervention.

We discuss the other claims of the intervenors together as they are interrelated to the consideration and resolution of whether they are entitled to intervene under § 22a-19 (a). The intervenors claim a right to intervene under the authority of Connecticut Water Co., appearing to premise that argument on the ground that in that case the Supreme Court “ruled” that the enforcement action of the commissioner “involved a judicial review of an action arising out of the particular jurisdiction of the commissioner.” They maintain that the statute, which requires a liberal construction and has the broad purpose to “give private citizens a voice” on environmental issues, would effectively be thwarted by denying intervention and thus proscribing citizen input. Intervention, they maintain, “is automatically permissible and mandatory in such Superior Court actions,” and here they specifically refer to actions brought under § 22a-430 (a).

Not only does the commissioner argue in support of intervention, but he stresses that the “very broad” language of § 22a-19 (a), i.e., “administrative, licensing or other proceeding,” which, in this case, the commissioner claims is not clear, also supports intervention. The commissioner argues that the language is very broad and that it “indicates an intent to permit intervention in a wide variety of proceedings and fora.” The commissioner further asserts that there is “[n]othing in the statutory language [to indicate] that an entity may intervene only in an administrative appeal or a proceeding otherwise limited to an administrative record” and that “[i]f the legislature had intended to limit the application of § 22a-19 (a) to administrative appeals, it could easily have done so by using those words.” The interve-nors argue that the language of § 22a-19 (a) is clear and that it affords them the right to intervene under § 22a-19 (a).

The commissioner maintains that the language is not clear but that the legislative history, the statute’s clear purpose, and the case law require that intervention be granted here. Specifically, he contends that “the words ‘administrative’ and ‘licensing’ cover the universe of agency proceedings” and, if the words “other proceeding” are to be given meaning, they can refer only to court proceedings, such as the commissioner’s and the zoning commission’s enforcement actions in these cases. He also claims that the legislative history of the EPA, of which § 22a-19 (a) is a part, “supports the view that the clear purpose of the statute was to give citizens direct access to the courts to enforce environmental laws.”

The commissioner further invokes the tenet that remedial statutes such as the EPA “should be liberally construed to achieve their purpose.” Rather than turning to the doctrine of ejusdem generis in determining the meaning of “other proceeding” in § 22a-19 (a), we are urged by the commissioner to employ, inter alia, the rule of statutory construction “that a statute should be construed as a whole where particular words or sections of the statute, considered separately, are lacking in precision of meaning.” State v. Burney, 189 Conn. 321, 326, 455 A.2d 1335 (1983); see United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992).

The defendants, on the other hand, urge that the denial of intervention was proper. They argue that correct statutory interpretation of § 22a-19 (a) requires the conclusion that intervention “is not mandated in this particular action.” They argue that to decide the issues presented it is necessary to determine the meaning of the words “or other proceeding” in § 22a-19 (a), and they refer to other portions of the statutory scheme including General Statutes §§ 22a-16 and 22a-18. The defendants claim that it is clear that the legislature in using the words “other proceeding” in § 22a-19 (a) “intended the other proceeding to mean a proceeding akin to an administrative or licensing proceeding and not a proceeding brought directly in court by the attorney general” as was this action.

We note that, in the context of this claim, the defendants refer to the Appellate Court’s decision in Polymer. They state that “in [Polymer] the Appellate Court ruled [in a case in which] the plaintiff entities brought an action alleging the [commissioner] violated [their] civil rights. This was not an appeal from an administrative hearing or a judicial review of such hearing.” The defendants argue that the commissioner’s complaint in the present action makes claims for monetary damages and injunctive relief that were not the subject of administrative hearings, and “no administrative hearing was waived.” Therefore, the defendants contend that the trial court acted properly in following the Appellate Court’s decision in Polymer, maintaining that there “was no indication in that case that it was limited specifically to a civil rights proceeding, but rather directly limited § 22a-19 (a) to those instances intended by the legislature, i.e., a case that evolved from a licensing, administrative or similar proceeding.” The defendants argue not only that the Appellate Court’s decision in Polymer is not an advisory opinion but that it was not rendered “moot” by Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 630 A.2d 1304 (1993), and, even if the Appellate Court’s decision in Polymer is not given “precedential authority,” it should be recognized as “the highest form of persuasive authority.”

Finally, the defendants dispute the claim of the inter-venors that Connecticut Water Co. is clear authority for their right to intervene. In doing so, their argument is twofold: first, the issue of intervention was never a controversy in that case, and, second, Connecticut Water Co. “involved a judicial review of an action arising out of the particular jurisdiction of the commissioner in which a hearing could have been sought but for which no hearing was sought. See [General Statutes §§] 22a-432 and 22a-436 . . . .” The present case, the defendants claim, “involves § 22a-430 (d), which gives the commissioner the right to bring a proceeding separate and apart from any hearing.” (Emphasis added.) They argue that “[sjince there is no license, administrative or other similar procedure involved, there is no authority upon which to presume intervention under § 22a-19.”

“The objective of statutory construction is to give effect to the intended purpose of the legislature. ” (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). “As is true in every case involving the construction of a statute, our starting point must be the language employed by the legislature.” Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982); see United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391, 618 A.2d 1340 (1993). In Groton v. Yankee Gas Services Co., 224 Conn. 675, 689, 620 A.2d 771 (1993), our Supreme Court stated: “In interpreting the language of a statute, we are guided by the premise that we must consider the statute as written and read it as a whole. Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985). [N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous. Insofar as it is possible, the entire enactment is to be harmonized, each part made operative. . . . Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985). We approach this task mindful of the assumption that the legislature intended to accomplish a reasonable and rational result. Id.” (Internal quotation marks omitted.) In statutory construction, “[o]ur task is to find the expressed intent of the legislature, ‘that is, the intention of the legislative body, “as found from the words employed to make it manifest.” ’. . . We seek the intent of the legislature ‘not in what it meant to say, but in what it did say.’ ” (Citation omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 186-87, 592 A.2d 912 (1991). “If that language is plain and unambiguous, we go no further. ... If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, [the court] will seek guidance from ‘extrinsic aids,’ e.g., the legislative history.” (Citation omitted.) Id., 187. The axiom, however, that “where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary . . . only applies in full force . . . [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) . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991); see Rose v. Freedom of Information Commission, supra, 225. It is basic that common sense must be used in statutory construction and that “[a] statute should not be interpreted in any way to thwart its purpose ... [or so as to lead] to absurd consequences and bizarre results.” (Citations omitted; internal quotation marks omitted.) Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666-67, 560 A.2d 975 (1989); Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975).

Environmental statutes, such as our EPA, of which § 22a-19 (a) is now a part, are considered remedial in nature and are to be construed liberally to accomplish their purpose. Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 382, 627 A.2d 1296 (1993); Carothers v. Capozziello, 215 Conn. 82, 122, 574 A.2d 1268 (1990); Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 487, 400 A.2d 726 (1978). Public Acts 1971, No. 872, § 1, entitled “Environmental Protection Department and State Policy,” in proclaiming the broad policy behind its enactment, provides in part: “The air, water, land and other natural resources, taken for granted since the settlement of the state, are now recognized as finite and precious. . . . [H]uman activity must be guided by and in harmony with the system of relationships among the elements of nature. . . . [T]he policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment . . . .” See General Statutes § 22a-l; Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 456, 668 A.2d 340 (1995).

Public Acts 1971, No. 96, § 2, now codified at General Statutes § 22a-15, entitled “Declaration of Policy” provides: “It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.” (Emphasis added.)

The opposition to intervention seems to be that the phrase “other proceeding” in § 22a-19 (a) means “a proceeding akin to an administrative or licensing proceeding and not a proceeding brought directly in court by the attorney general” and that that phrase limits § 22a-19 “to those instances intended by the legislature, i.e., a case that evolved from a licensing, administrative or similar proceeding.” Therefore, the defendants argue that because the commissioner brought this case directly in the Superior Court under § 22a-430 (d) and, as such, it is a proceeding separate and apart from any hearing, and because there is no licensing, administrative or other similar proceeding involved, there is no authority on which to presume intervention under § 22a-19. We are not persuaded by these claims.

We are mindful that the declaration of policy in § 22a-15 applies to “eachperson,” and indeed to “all persons,” suggesting, at the very least, public input; and that the result contended for by the defendants would work a complete bar to intervention by the plaintiffs under § 22a-19 (a) in this case merely because § 22a-430 (d) was the vehicle used by the commissioner. The question arises whether the “other proceeding” language of § 22a-19 (a) is ambiguous. There is ambiguity. The principle that “[w]here the meaning of a statutory term is clear, it is said to be unambiguous and not subject to modification by construction” is “somewhat deceptive, for a term which, in isolation, appears to be clear, may be modified by its context.” Doe v. Institute of Living, Inc., 175 Conn. 49, 57, 392 A.2d 491 (1978). “Where the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed by this court .... Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980).” (Internal quotation marks omitted.) Carothers v. Capozziello, supra, 215 Conn. 120. We believe that the words “any . . . other proceeding” in § 22a-19 (a) are ambiguous in the context of whether their meaning prohibits the plaintiffs from intervening in this action brought directly to the Superior Court by the attorney general under § 22a-430 (d). Under our approach to statutory construction, we are guided by the language of the statute, its purpose, its legislative history and the circumstances surrounding its enactment.

Turning to the legislative history of the 1971 EPA, of which the present § 22a-19 (a) was a part, we see that the purpose of the act is set out in General Statutes § 22a-15. That section provides: “It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.” (Emphasis added.)

We note the all encompassing language of “each person” and “all persons” whom the legislature intended to include in its broad sweep. 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 737-44. It is, however, certain remarks on the floor of the legislature during the debate on its passage that illuminate our inquiry. Representative Papandrea, deputy majority leader, speaking in favor of passage of the act, said: “[I]t expands the right of a person to have access to the courts when property which we might say belongs to all of the public is jeopardized by the alleged polluting activity. Presently a person, unless he can show a personal direct ownership or other interests in the land which he claims as being affected by the alleged activity does not have legal standing in the court of law. Consequently, some of the most beautiful aspects of our environment, some of those most vital not only to our survival, but to that of future generations are such that they do not lend themselves to a proprietary or a personal interest and this bill makes the guaranteeing and the preservation and the protection of these rights available to the general public which they are not presently under our law.” Id., p. 739.

Another supporter of the proposed bill, Senator Roger W. Eddy, said, “What we are attempting to do here, is beginning in our own way to let the citizens say that they have at stake, the right to live in clean air, clean water and a generally favorable environment.” 14 S. Proc., Pt. 3, 1971 Sess., p. 1084. Another supporter said: “And I do think this is a necessary bill because it may well prod many of our state agencies charged with the protection of the environment on a state level. It may well prod these agencies into more thorough and responsive carrying out of the legislative programs. I think this bill does show the concern of the legislature for the environmental crisis in this state . . . .” 14 H.R. Proc., Pt. 2, 1971 Sess., p. 745, remarks of Representative Francis Collins. It was recognized that the bill was “granting individual citizens some powerful weapons, the right to seek injunctions, the right to intervene in proceedings.” 14 S. Proc., Pt. 3, 1971 Sess., p. 1083, remarks of Senator Thomas Dowd. The intent to afford the opportunity to any citizen to participate in raising environmental issues, either by way of instituting actions as in § 22a-18 or by intervention in such matters as in § 22a-19 (a), is unmistakable.

The claim has been made that intervention is quite appropriate here under the “any . . . other proceeding” language of § 22a-19 (a). We do not believe that, in resolving this issue, the rule of construction frequently referred to as ejusdem generis, in the fact pattern of this case, is any bar to such a conclusion. “According to the rule of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.” (Emphasis added.) State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991). However, “[ejjusdem generis . . . like other canons of statutory construction [is] only an aid to the ascertainment of the true meaning of the [words of a] statute. It is neither final nor exclusive. To ascertain the meaning of the words of a statute, [those words] may be submitted to the test of all appropriate canons of statutory construction, of which . . . ejusdem gene-ris is only one. If, upon a consideration of the context and the objects sought to be attained and of the act as a whole, it adequately appears that the general words were not used in the restricted sense suggested by the rule, we must give effect to the conclusion afforded by the wider view in order that the will of the legislature shall not fail.” Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89, 55 S. Ct. 50, 79 L. Ed. 211 (1934). Here, a contrary legislative intent appears, and ejusdem gene-ris is not applicable.

In determining that the present action instituted under § 22a-430 (d) is a “proceeding” that falls within the broad “any . . . other proceeding” language of § 22a-19 (a), we note several other matters that support our conclusion. There is nothing in the statute that suggests that intervention is limited to a situation where there is some administrative record. The portion of § 22a-430 (d) under which this action was brought was already law when § 22a-19 (a) was enacted. The legislature is presumed to act “with knowledge and understanding of existing relevant statutes, and with the intent to achieve a harmonious and consistent body of law.” Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984); Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986). We glean nothing from the legislative history that suggests that the intervenors must be relegated to instituting their own action under § 22a-18 rather than seeking to intervene under § 22a-19 (a).

Further, it is a basic proposition of law that “[a] statute should be construed so as to give effect to the legislative intent, while keeping in view the object of the statute.” Stephen Reney Memorial Fund v. Old Saybrook, 4 Conn. App. 111, 113, 492 A.2d 533 (1985); State v. Harris, 14 Conn. App. 244, 250, 540 A.2d 395 (1988). Our construction of § 22a-19 (a) does this. “A statute should be construed so as to have meaning, so that the statute makes common sense, and so that there are no bizarre results.” Knapp v. Inland Wetlands Commission, 7 Conn. App. 283, 285, 508 A.2d 804, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986). Section 22a-19 (a) should be so viewed, for to say otherwise would defy common sense and mean that there would be no intervention at all in this case because it involved an action brought directly to the Superior Court pursuant to § 22a-430 (d). Nothing has been brought to our attention, nor have we found anything, to suggest that the legislature had any intent to exclude an action brought pursuant to § 22a-430 (d). This present action, which is brought under § 22a-430 (d), certainly raises environmental issues, and it was for the raising of such issues that § 22a-19 (a) was intended by the legislature. See Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 248 n.2, 470 A.2d 1214 (1984). Our construction of the statute advances its remedial purpose.

For the foregoing reasons, we conclude that the trial court improperly denied intervenor status.

The judgment is reversed and the case is remanded with direction to grant the requests to intervene.

In this opinion the other judges concurred.

       The commissioner’s complaint in this action is in twelve counts and alleges the violation of a number of statutes, i.e., General Statutes §§ 22a-368 (b), 22a-403 (a), 22a-407, 22a-42a (c), 22a-430 and 22a-427, and §§ 220-10 and 220-7 of the Brookfield town code.

       The injunctive relief was sought pursuant to General Statutes §§ 22a-376 (a), 22a-44 (b), 22a-430 (d), 22a-6 (a) (3) and 22a-376 (a) and (b).

       The claimed orders for forfeiture of moneys involved General Statutes §§ 22a-44 (b), 22a-438 and 22a-407.

       Limekiln Brook was apparently a stream that the intervenors indicate “used to flow across the site” of the mine.

       This claimed activity is alleged to be in violation of state statute as well as the Brookfield town code.

       General Statutes § 22a-430 is entitled “Permit for new discharge. Regulations. Renewal. Special category permits or approvals. Limited delegation. General permits.”
      General Statutes § 22a-430 (d) provides: “If the commissioner finds that any person or municipality has initiated, created or originated or is maintaining any discharge into the waters of the state without a permit as required in subsection (a) hereof, or in violation of such a permit, he may issue an order to abate pollution which shall include a time schedule for the accomplishment of the necessary steps leading to the abatement of such pollution, or notwithstanding any request for a hearing pursuant to section 22a-436 or the pendency of an appeal therefrom, he may request the attorney general to bring an action in the superior court for the judicial district of Hart ford-New Britain to enjoin such discharge by such person or municipality until the person or municipality has received a permit from the commissioner or has complied with a permit which the commissioner has issued pursuant to this section. Any such action brought by the attorney general shall have precedence in the order of trial as provided in section 52-191.” (Emphasis added.)

       Although this notice of intervention by the Brookfield zoning commission sets out that “[p]ursuant to General Statutes § 22a-19, the Brookfield Zoning Commission intervenes as a matter of right in this action as a parly plaintiff pursuant to this verified pleading [of fourteen following paragraphs],” it does bear the notation, “Granted 2/1/94.”

       Huse filed his notice of intervention pursuant to General Statutes § 22a-19 (a) on March 4, 1994, and the association, Blackman and Willcox filed theirs on May 2, 1994.

       None of the intervenors notice of intervention alleged intervention “as a matter or right.” In any event, counsel filing these objections to the notice of intervention in this case had argued, in opposing intervention in the companion case (before Judge Stodolink) that “they can assert their interve-nor’s rights in the environmental case pending in Hartford” and that “they have their forum in Hartford and they have their forum in Brookfield.”

       This footnote states: “We note that the general language ‘other proceeding’ follows the specific terms ‘administrative’ and ‘licensing’ proceedings in the statute. ‘The general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.’ State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991); Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 104 n.31, 612 A.2d 1130 1992). This rule of construction is frequently referred to as ejusdem generis. Cheshire Mortgage Service, Inc. v. Montes, supra [104 n.21].” Polymer Resources, Ltd. v. Keeney, supra, 32 Conn. App. 347 n.9.

       General Statutes § 22a-16, which is entitled “Action for declaratory and equitable relief against unreasonable pollution,” provides: “The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford-New Britain, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.”

       In the trial court the plaintiff commissioner filed a brief supporting intervention and so argued at the hearing on it in that court.

       The commissioner instituted the Superior Court action that generated this appeal and, in addition, supported intervention in the zoning case as an amicus in this court.

       The commissioner opposed the application of this court’s Polymer decision in the trial court, which case he believed was one on which this court “apparently relied” on the doctrine of ejusdem generis. In urging his view of “other proceeding” in § 22a-19 (a), the commissioner, likewise was against its use there to prevent citizen intervention. In this case, he argues that the doctrine of ejusdem generis should not apply, given the demonstrated contrary intent shown by the legislative history. In doing so, he refers to State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991).

       We outline the claims of the defendants as to the Appellate Court’s decision in Polymer only to demonstrate their reliance on it in this appeal.

       Public Acts 1971, No. 96, was entitled: “The Environmental Protection Act of 1971.” Sections 1 through 6 of that act are now codified at General Statutes §§ 22a-14 through 22a-19.

       Here we refer to the language of § 22a-19 (a) which provides: “In any administrative, licensing or other proceeding . . . .”

       We note that the legislature knows when to include language of delimitation when it means to do so. For example, in § 22a-18 (b), it did so where it used the word “such” in the first sentence. That subsection provides: “If administrative, licensing or other such proceedings are required . . . .”


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. JAMES OLIVER, JR.
    (13048)
    O’Connell, Foti and Spear, Js.
    Argued February 22
    officially released April 23, 1996

      Jon L. Schoenhom, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (l). The defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal in which he claimed that there was insufficient evidence to support his conviction of sexual assault in the first degree, (2) violated his rights to confrontation and cross-examination by precluding certain inquiries, (3) admitted evidence under the “constancy of accusation” exception to the hearsay rule, (4) instructed the jury on an element of sexual assault in the first degree, and (5) instructed that the date of the offense was not an element of the crime. We reverse the defendant’s conviction and order a new trial.

The jury could have reasonably found the following facts. On the evening of August 7, 1991, Louise Carroll drove her forty-two year old daughter, Peggy, and Peggy’s thirty year old friend (victim) to a martial arts class taught by the defendant. The class, which was specifically designed for students with mental impairment, was held in the defendant’s garage. The victim is afflicted with Down’s syndrome and, although she graduated from high school, has a mental age equivalent to that of an eight year old. Carroll parked the car in the defendant’s driveway and waited there during the lesson. When Peggy and the victim returned to the car approximately one hour later, Carroll drove them to her house.

Once the victim returned to her own home, she began to cry uncontrollably. The victim told her mother, and later a police detective, that the defendant had forcibly touched and kissed her breasts, placed his hands inside her pants, forced her to touch his penis, digitally penetrated her vagina, forced her to masturbate him and, ultimately, ejaculated into the sink. At a subsequent police interview, the victim added that the defendant had also kissed her vagina.

I

We first address the defendant’s claim that the evidence adduced at trial was insufficient to support his conviction for sexual assault in the first degree. The information charged the defendant with sexual assault in the first degree by compelling another person to engage in sexual intercourse by “placing his finger inside her vagina, and engaging in cunnilingus.” The defendant claims that because the victim never testified that she removed her underwear or the sanitary napkin that she was wearing, the evidence supported neither a finding that he digitally penetrated the victim’s vagina nor a finding that he performed cunnilingus on her.

In reviewing claims of insufficiency, we first examine the evidence presented at trial and construe it in the light most favorable to sustaining the verdict. State v. Stanley, 223 Conn. 674, 677-78, 613 A.2d 788 (1992). We then look at the facts established at trial and the reasonable inferences drawn therefrom, and decide whether the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id.

In this case, there was ample evidence to support a finding that the defendant compelled the victim to engage in sexual intercourse by inserting his finger into her vagina. The victim specifically testified that the defendant penetrated her vagina with one of his fingers. The victim’s doctor testified that he did not observe any signs of forcible penetration, but that digital penetration would not necessarily produce a physical change in the vagina. Once presented with this evidence, it is the right and duty of the jury to draw reasonable and logical inferences from it. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). On the basis of the victim’s testimony, the jury could have drawn the reasonable inference that the defendant displaced or rearranged the victim’s undergarments and sanitary napkin to the extent necessary to accomplish digital intercourse. On the basis of the testimony of the victim and the victim’s physician and the reasonable inferences drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established the defendant’s guilt of sexual assault in the first degree beyond a reasonable doubt.

Alternatively, the defendant claims that even if we conclude that sufficient evidence was presented to support a finding of digital penetration, there was insufficient evidence to support a finding that cunnilingus occurred. The essence of this argument is that a factual insufficiency regarding cunnilingus, even if accompanied by a general verdict of guilty on a factually supported basis of digital penetration, is a due process violation under article first, § 8, of our state constitution. Because the defendant has failed, however, to provide us with an independent analysis of his state constitutional claim, we limit our analysis to the relevant federal constitutional claim. State v. Santiago, 224 Conn. 325, 328 n.4, 618 A.2d 32 (1992).

When a jury returns a verdict on an information that charges several acts in the conjunctive, “a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation. Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991).” State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994). Because we have already concluded that one of the statutory alternatives given to the jury was supported by sufficient evidence, we conclude that the defendant has not been denied due process under the federal constitution.

II

The defendant next claims that his constitutional rights of confrontation and cross-examination were abridged when the trial court precluded inquiry into the victim’s multiple statements that she felt “guilty” about testifying. We agree.

The right to confront and cross-examine adverse witnesses is a fundamental part of a fair trial. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Cross-examination eliciting facts tending to show motive, interest, bias, and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). This right, however, is not absolute. The trial court, in its discretion, may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to satisfy constitutional requirements. State v. Crosby, 34 Conn. App. 261, 272, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994).

On several occasions during her direct testimony, the victim made unsolicited statements that she felt guilty, exclaiming, “I feel guilty now,” and “Oh, God, I feel guilty.” After defense counsel introduced himself and began cross-examination, the victim exclaimed, “I’m gonna feel guilty if I tell him this.” When the trial court subsequently excused the jury to hear legal argument, the victim again said, “I’m gonna feel guilty.” Later in cross-examination, when defense counsel showed the victim a photograph of the location of the assault, the victim responded, “God, I’m [going to] feel guilty.” After the victim made this sixth remark about feeling guilty, the defendant attempted to inquire why the .victim felt guilty. The state objected, and the defendant was precluded from this line of inquiry on relevancy grounds.

The crux of the defendant’s claim is that the trial court improperly precluded him from asking the victim why she repeatedly said that she felt guilty. In reviewing this claim, we must determine whether the trial court abused its discretion by restricting cross-examination as to this line of inquiry. State v. Colon, 28 Conn. App. 231, 235, 611 A.2d 902, cert. denied, 223 Conn. 922, 614 A.2d 827 (1992). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause. ...” (Citations omitted; internal quotation marks omitted.) State v. Santiago, supra, 224 Conn. 331. To establish an abuse of discretion, the defendant must show that the restrictions imposed on him were “clearly prejudicial.” State v. Lewis, 25 Conn. App. 354, 360, 594 A.2d 489 (1991).

Applying these principles to the present case, we conclude that the trial court’s limitation of the defendant’s cross-examination was an abuse of discretion. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). By precluding the defendant from inquiring as to why the victim felt “guilty” about relating the details of the alleged incident, the trial court improperly prohibited inquiry into a legitimate area of cross-examination. The jury in this case was asked to believe the victim’s version of events, and her credibility was therefore crucial to its determination of the defendant’s guilt.

In addition to the victim’s veracity, her motivation for testifying and propensity for making false statements were pivotal to the defendant’s case. The defendant claimed that the victim, jealous of a perceived relationship between Peggy and himself, had motive to make false accusations. The defendant was thus given an opportunity effectively to cross-examine on motive and bias in the following areas: the victim’s love for the defendant, the victim’s jealousy and anger over the defendant’s preference for Peggy, and the victim’s propensity for making false statements. The field of inquiry as to her feelings of guilt about testifying, however, was completely obstructed by the trial court. We conclude that, by preventing the defendant from exploring why the victim repeatedly stated that she felt guilty, the trial court failed to allow him an opportunity for cross-examination sufficient to satisfy constitutional requirements. That action constituted an abuse of discretion. Accordingly, we reverse the conviction and order a new trial.

Ill

The defendant next claims that he was denied his constitutional rights of confrontation and equal protection when the trial court admitted, under the constancy of accusation rule, the testimony of two police officers. Although we have already concluded that the defendant is entitled to a new trial, we address this claim because it is likely to arise on retrial.

Constancy of accusation testimony does not violate a defendant’s right of confrontation when, as in this case, the declarant testifies and is subject to full and effective cross-examination. State v. Kelley, 229 Conn. 557, 563-66, 643 A.2d 854 (1994). Similarly, constancy of accusation testimony does not violate a defendant’s state or federal right to equal protection. Id., 564-65.

Nonetheless, the defendant urges us to reconsider the validity of the rule in Kelley. It is not, however, within our province to overrule or discard the decisions of our Supreme Court. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). We therefore conclude, on the basis of Connecticut Supreme Court precedent, that the defendant was not denied his right of confrontation or his right to equal protection by admitting constancy of accusation testimony.

IV

We need not reach the defendant’s claims that the jury was misinstructed on an element of sexual assault in the first degree and misinstructed that the date of the offense is not an element of the crime because they are unlikely to arise on retrial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

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

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or against a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . .

       The defendant was not charged with sexual assault in the second degree with a mentally defective or mentally incapacitated person who is unable to consent to sexual intercourse in violation of General Statutes § 53a-71 (a).

       Pursuant to General Statutes § 53a-65 (2), sexual intercourse is defined as “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. . . . Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse, or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       Although the defendant also claims a violation of his right to confront witnesses under article first, § 8, of the state constitution, he has failed to present an independent analysis of that claim. Consequently, we limit our analysis to the relevant federal constitutional claim. See State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. CYRUS TAHERI
    (13821)
    Landau, Iieiman and Spear, Js.
    Argued December 12, 1995
    decision released April 23, 1996

      Elizabeth M. Inskter, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134. The defendant claims that the judgment should be reversed because the trial court, in its jury charge, (1) failed to give an accomplice testimony instruction, (2) improperly instructed on the duty to draw inferences, and (3) failed to relate the law to the facts of the case. We affirm the judgment of the trial court.

The juiy could reasonably have found the following facts. In November, 1990, the defendant was hired to serve as assistant manager of a Popeye’s fast-food restaurant in Stratford. Edward Cooper and Christopher Florentino were also employees of Popeye’s and worked under the supervision of the defendant.

In February, 1991, the defendant stated to Cooper that the restaurant would be easy to rob. He stated that if they could find an outside person to come into the restaurant at the appropriate time to commit the actual robbery, it could be easily accomplished. Subsequently, the defendant had the same conversation with Floren-tino, and, on several occasions, the three individuals discussed how the robbery could be conducted and whom they could get to commit the robbery. They also tried to determine on which day of the week the most money would be in the restaurant. The defendant told Cooper and Florentino that when they found someone to commit the robbery, they should let him know. The defendant also said that Sunday would be the best day to commit the robbery because all of the money received at the restaurant during the weekend would not yet have been taken to the bank.

Cooper subsequently approached his stepbrother, Ronald Canfield, and told him about the plan to rob Popeye’s. Cooper asked Canfield to be the robber and told him that there was nothing to worry about because the manager was taking part in the scheme. Cooper said that the manager would be on the premises, and that he would not set off an alarm or call the police until at least five minutes alter Canfield had left. Can-field agreed to commit the robbery, and Cooper and Florentino provided him with a ski mask, a pair of gloves, a shotgun and shells. According to Cooper and Florentino, the manager knew that the robber would have a gun.

On March 3, 1991, at approximately 8:30 p.m., Can-field met Cooper and Florentino across the street from Popeye’s. Canfield had arrived by bicycle. He was told to go to the rear door of Popeye’s at 9 p.m. and to wait for one of the men to take out the garbage. At that time, he was to enter the premises and commit the robbery.

Canfield brought the shotgun, ski mask, gloves and a camouflage bag to the rear of Popeye’s and waited in the bushes. He heard the rear door open and the scraping of a garbage can, and he saw Cooper and the defendant emerge from the restaurant. Cooper called out, “Ron, Ron,” and the defendant said, “Hey” and “Yo, yo, anyone there?” The defendant also made a noise that sounded like “psst.” Canfield said, “Yeah, I’m here,” and the defendant saw Canfield and said to him, “Come on, let’s go.” Canfield grabbed the shotgun, put on the mask, and entered the restaurant behind Cooper and the defendant. Canfield was wearing a black leather jacket, blue dungarees and white sneakers.

When the three men entered the restaurant, Floren-tino was present. Cooper, Florentino and the defendant were smiling, and they directed Canfield to a room where Albert Jarrett was counting the money. Canfield told Cooper, Florentino and the defendant to lie down on the floor, and he told Jarrett to stop counting and to give him all the money. Canfield had been told to put the employees into the freezer before leaving the premises, and so he ordered Cooper, Jarrett and Floren-tino into the freezer. While Canfield did this, the defendant stood near a sink smiling and nodding his head.

Canfield tossed the gloves into a mop closet, left the building, and discarded the ski mask and shotgun in the dumpster behind Popeye’s. He started toward the place where he had stored his bicycle and was met by a police officer. The officer displayed a gun and told Canfield to “freeze.” Canfield fled and a chase ensued. As Canfield ran, the money fell out of his bag. Canfield then discarded the bag. He was apprehended and taken into custody. He told the police what had occurred and informed them that Cooper, Florentino, and the defendant were also involved in the scheme.

The defendant testified on his own behalf that he never agreed with anyone to rob Popeye’s or to share in the proceeds of any robbery. The defendant said that Cooper mentioned in general terms that some day Popeye’s might be robbed. The defendant asserted that he had told Cooper, “If it ever got robbed, you wouldn’t get a fight out of me, because I know how Bridgeport is and all.” He further claimed that he spoke with Floren-tino after his conversation with Cooper, and that Floren-tino denied knowing about an intended robbeiy.

According to the defendant, Cooper stated that he had obtained the services of a person who was willing to commit the robbery. The defendant asserted that he told Cooper that he was not interested, and that he wanted nothing to do with any robbery. He claimed that he never reported this conversation to the general manager because the general manager did not want to hear about any problems taking place at the restaurant. The defendant also admitted that he did not report this conversation to the owner of the franchise because he did not want to “go over [the] manager’s head.”

The defendant testified that just before the robbeiy took place, he had told Jarrett to cash out and had helped Cooper and Florentino to clean up. He also testified that he and Cooper went outside to empty the garbage, and that on the way back, Cooper told him that they were going to be robbed. According to the defendant, Cooper then called out, “Ron.” The defendant testified that he said “Yo” in response to Cooper as an expression of disbelief and as a way of calling Cooper’s bluff.

The defendant testified that the gunman entered the restaurant and ordered Cooper, Florentino and the defendant to he on the floor. The defendant said that he got up, ran out of the restaurant through an emergency door and called 911 from a pay telephone. He claimed that he told the operator that the restaurant had been robbed and that the robber would be carrying a yellow plastic sack. The jury found the defendant guilty and this appeal followed.

I

The defendant first claims that the trial court improperly failed to deliver an accomplice testimony instruction where the entire case against the defendant rested on the testimony of three confessed accomplices.

The defendant concedes that he did not file a request to charge concerning the suspect nature of accomplice testimony, and that he did not take exception to the trial court’s failure to give such an instruction. Thus, the defendant has not properly preserved this claim. Practice Book § 852. The defendant does not assert that the failure of the trial court to deliver an instruction regarding accomplice testimony deprived him of a constitutional right, nor would such a claim benefit him because our Supreme Court has determined that the failure to give such an instruction does not implicate a constitutional right. State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982). The defendant posits that the failure of the trial court, sua sponte, to give such an instruction, is reviewable under the plain error doctrine. We are unpersuaded.

“Because he did not file a written request for this instruction or take an exception to the instruction on credibility as given, we can review the defendant’s claim only if it constitutes plain error [which we notice ‘in the interest of justice’]. Practice Book § 4185. Review under the plain error doctrine is granted only in extraordinary situations where the error is so obvious that it affects the fairness and integrity of public confidence in the judicial proceeding. State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

“ ‘Whether in the interest of justice we notice this failure to give the accomplice instruction as plain error depends in part on whether the failure was harmful. The failure to give the accomplice instruction would be harmful only if the absence of this instruction was likely to have affected the jury’s verdict.’ State v. Brown, [supra, 187 Conn. 613]. Because the failure to give the accomplice instruction does not violate a constitutional right, it is the defendant’s burden to show its harmfulness.” State v. King, 35 Conn. App. 781, 794, 647 A.2d 25 (1994), aff'd, 235 Conn. 402, 665 A.2d 897 (1995).

We conclude that the claim of the defendant is not entitled to plain error review. Although it is the duty of the trial court to instruct the jury to scrutinize the testimony of an accomplice when the evidence so warrants; State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); we conclude that the failure to give such an instruction here was not so harmful that it was likely to have affected the jury’s verdict. See State v. Brown, supra, 187 Conn. 612-14.

We base our conclusion on several factors. First, we look to the balance of the trial court’s instructions regarding credibility. In its instructions, the trial court generally indicated to the jury that it could view the testimony of any witness as less credible than that of any other witness. The trial court instructed the jury that a witness’ felony conviction is a factor that the jury could weigh in assessing the credibility of that witness. The trial court further instructed the jury that it might not accept the testimony of a person previously convicted of a serious crime as readily as it might accept another person’s testimony. Here, the only witnesses who were convicted felons were the three accomplices. The trial court also instructed the jury that, when making a determination as to the credibility of a witness, it could take into account any interest in the outcome of the case, prejudice, bias or sympathy that the witness might have. See State v. Ruth, 181 Conn. 187, 200, 435 A.2d 3 (1980). Thus, the trial court’s instructions suggested that the accomplice witnesses’ testimony may be viewed as suspect, and that the accomplices might have had an interest in distorting their testimony. See id.

Second, the lack of any indication that the accomplices had fabricated their accounts of the defendant’s involvement in the robbery, and the consistency of the accomplices’ testimony; see id; also lead us to conclude that the trial court’s failure to give an accomplice instruction did not affect the jury’s verdict. When Can-field was apprehended, he was asked by the arresting officer whether anyone else was involved in the commission of the robbery. Canfield responded that Cooper, Florentino and the defendant had been involved. Nothing in the evidence suggests that Canfield had an opportunity to concoct a story impheating the defendant because his inculpatory statement came immediately following his arrest and before he had an opportunity to talk with his coconspirators. Moreover, Cooper, Flor-entino and Canfield were kept apart at the police station, and all three gave independent statements implicating the defendant in the planning and execution of the robbery. In addition, the record reflects that the accomplices’ statements to the police on the night of the crime were consistent with their trial testimony.

Finally, nothing in the record suggests that any of the accomplice witnesses had received promises of leniency in exchange for testimony against the defendant, although defense counsel explored that possibility on cross-examination. At the time that each of the coconspirators testified against the defendant, each had pleaded guilty to various criminal offenses arising out of the robbery, and they had been sentenced as a result. Two of the accomplice witnesses had received ten year sentences suspended after five years, and one had received a ten year sentence suspended after four years. Each of the accomplice witnesses had served the unsus-pended portion of his sentence and was then on probation. The accomplice witnesses were not required, as a condition of probation, to testily against the defendant.

All of these factors lead us to conclude that the trial court’s failure to give an accomplice testimony jury instruction was harmless and was not likely to have affected the jury’s verdict. Thus, it is unnecessary for us to notice plain error in this case. See State v. Brown, supra, 187 Conn. 613-14.

II

The defendant next asserts that the trial court improperly instructed the jury concerning its duty to draw inferences. The defendant posits that, consequently, the trial court “shifted” or “diluted” the state’s burden of proof. We disagree.

Again, the defendant did not properly preserve this claim for appellate review. The defendant seeks review of this unpreserved claim pursuant to the well traveled path of State v. Evans, 165 Conn. 61, 70, 327 A.2d 567 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant asserts that the trial court’s allegedly improper instruction violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Although we agree that he is entitled to review of this second unpreserved claim, we conclude that a constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

In the course of its charge, the trial court stated: “In passing on the guilt of an accused person on the basis of circumstantial evidence you must be satisfied first that certain facts or circumstances exist and second that those facts and circumstances do beyond a reasonable doubt lead you to conclude that the crime was committed by the accused. Unless the existence of those facts or circumstances leads you as reasonable men and women to only one conclusion, namely that the accused is guilty, then, of course, you would not be justified in finding him guilty. But if you find those certain facts to have been proved that the only reasonable inference to be drawn from the existence of the facts is that the accused committed the crime charged, then it is your duty to draw that inference and find him guilty.” (Emphasis added.) The defendant claims that the effect of this portion of the charge was to shift or dilute the state’s burden of proof. We are unpersuaded.

We once again set out our standard of review of a constitutional attack on the instructions of the trial court. “[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).

Our review of the charge as a whole leads us to conclude that the trial court fully and fairly met its responsibility to instruct the jury in a manner that adequately guided the jury to a fair and just verdict. State v. Patterson, 35 Conn. App. 405, 417, 646 A.2d 258, cert. denied, 231 Conn. 930, 646 A.2d 254 (1994). Furthermore, when considered in the context of the charge as a whole, the isolated statement that the defendant attacks was not improper. Prior to making the allegedly improper statement, the trial court instructed the jury that it could not find the defendant guilty unless it found that the facts establishing such guilt were proven beyond a reasonable doubt. Next, the trial court simply instructed the jury that if the “only reasonable inference to be drawn” from the facts that had been proven beyond a reasonable doubt was “that the accused committed the crime charged,” then it was the jury’s “duty to draw that inference and find him guilty.” (Emphasis added.) This somewhat syllogistic statement merely informed the jury that if the only reasonable conclusion that it could reach was that the accused committed the crime charged beyond a reasonable doubt, then consequently, it was their duty as jurors to find the accused guilty. See State v. Santiago, 17 Conn. App. 273, 279, 552 A.2d 438 (1989). This statement, when viewed in the context of the charge as a whole, did not mislead the jury. We therefore conclude that the trial court’s charge was not constitutionally deficient.

Ill

Finally, the defendant asserts that the trial court improperly failed to relate the law to the facts of the case. The defendant posits that this failure deprived the defendant of the right to due process guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We do not agree.

Once again, the defendant did not properly preserve his claim for appellate review, and he seeks review of his unpreserved claim under State v. Evans, supra, 165 Conn. 70, and State v. Golding, supra, 213 Conn. 239-40. Although we review this claim, we conclude that a constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

We have already set forth in part II of this opinion our scope of review of constitutional challenges to jury instructions. To summarize briefly, we consider the charge as a whole to determine whether it is reasonably possible that the jury was misled. State v. Prioleau, supra, 235 Conn. 284.

“In reviewing whether the trial court must comment on any evidence that has been presented, we examine not only the entire jury charge, but also the presentation of the issues to the jury by counsel in the context of the trial. Within constitutional limitations concerning trial by jury, the nature and extent of the trial court’s comments on the evidence must largely depend on the facts involved in a particular case and the manner in which it has been tried. . . . The wide discretion a trial court has in its comments on the evidence may not require it to discuss particular items of testimony, particularly where issues were clearly delineated during the trial, where the arguments of counsel fairly presented the case and where there was no request to charge. . . . In a case where the trial court’s charge contained no review of the evidence, [our Supreme Court] stated that [t]he issues were narrow, and the court made sufficient reference to them and to the claims of the parties adequately to guide the jury in the application of the principles of law to the facts involved. . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 511, 659 A.2d 1194 (1995).

Here, the issues presented were narrow and uncomplicated, and the trial court’s instructions adequately guided the jury as to how to apply the law to the facts of the case. See id., 514. The defendant was charged in a single count with the commission of a single crime. The elements of the crime with which the defendant stood charged, the claims of the parties and the evidence presented were not difficult to understand. The state’s witnesses testified that the defendant was part of a conspiracy. The witnesses included a victim who was an employee, three coconspirators and police officers. The defendant claimed that he was not a participant in the conspiracy. No dispute existed as to whether a conspiracy existed or a robbery took place. The major issue was whether the defendant was a participant or a victim. Moreover, the final arguments of counsel focused on the facts that each side claimed to have proven and constituted a thorough review of the factual predicates necessary to support each position.

Immediately following the final arguments of counsel, the trial court instructed the jury as to the law applicable to the crime charged. The court instructed the jury regarding general principles of law, including proof beyond a reasonable doubt, burden of proof and direct and circumstantial evidence, that a jury must consider in a criminal case. The trial court then correctly instructed the jury as to the elements that the state was obligated to prove in order to find the defendant guilty of the crime charged in the information.

The trial court, near the conclusion of its jury charge, indicated that “[bjecause it has not been a long trial and I am sure you remember the evidence that’s been presented, and it was reviewed extensively in counsels’ argument, I have not reviewed it in my instructions.” The trial court then explained to the jury that if the jury deemed it necessary, it was entitled to hear any of the testimony again or any part of the court’s instructions. The trial court also advised the jury how to request the reading of testimony and instructions. On the basis of the foregoing review of the record, we conclude that the trial court did not abuse its discretion in limiting its review of the evidence. The trial court’s jury instructions, when examined as a whole and in the context of the entire trial, correctly assisted the jury in applying the law. Thus, it is not reasonably possible that the jury was misled or that injustice to the defendant resulted from the trial court’s instructions.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other-conduct which aids in the commission of the larceny.”

       Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

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

       “The defendant has failed to provide us with a separate analysis of his claim under the Connecticut constitution, and we therefore choose not to review this claim under the Connecticut constitution.” State v. Scarpiello, 40 Conn. App. 189, 198 n.4, 670 A.2d 856 (1996). This does not mean, however, that we are not able to afford review of such a claim if we decide to do so. Id.

       See footnotes 1 and 2.


author: PER CURIAM.

text:
    SACHEM ENTERPRISES v. SOUTHERN CONNECTICUT GAS COMPANY ET AL.
    (14059)
    Lavery, Landau and Shea, Js.
    Argued January 22
    officially released April 23, 1996

      George D. Royster, Jr., with whom were Harris B. Appelman and, on the brief, Steven M. Barry, for the appellant (plaintiff).

      Steven J. Errante, for the appellee (named defendant).
   PER CURIAM.

The plaintiff, Sachem Enterprises (Sachem), appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. On appeal, Sachem claims that the trial court improperly concluded that the doctrine of res judicata bars its cause of action. We conclude that the trial court properly held that Sachem’s cause of action was barred under the doctrine of res judicata.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the defendant’s motion for summary judgment. In August, 1983, Paul Skrainski was seriously injured in a fire at 255 Whitney Avenue in New Haven, a building owned by Sachem. In August, 1985, Skrainski brought an action against Sachem for claims arising from a fire in which Skrainski sustained severe bums. In that action, Sachem filed a third party complaint against the defendant alleging that the defendant had mislabeled gas meters, which resulted in the injury to Skrainski. Sachem sought indemnification for any judgment that might be rendered against it, as well as costs, expenses and attorney’s fees incurred in the defense of the lawsuit.

In December, 1992, and January, 1993, the Skrainski case was tried to a jury. On January 13, 1993, the trial court, Gordon, J., granted the defendant’s motion for a directed verdict as to Sachem’s third party claim. On January 19, 1993, the jury returned a verdict in favor of Sachem. Sachem neither moved to open the judgment nor filed an appeal as to the third party claim.

On May 3, 1993, Sachem filed a motion for leave to file an amended indemnity complaint against the defendant. The trial court, Gordon, J., denied the motion. On July 1,1993, Sachem commenced this action alleging that as a result of the defendant’s conduct at issue in the Skrainski case, it unnecessarily incurred attorney’s fees, litigation costs, and investigation costs. The defendant moved for summary judgment on the grounds that the complaint fails to state a cause of action, the claim is precluded by prior litigation, and the claim is untimely. The trial court, Hodgson, J., granted the defendant’s motion on the ground that Sachem’s claim is barred by the judgment rendered as to its third party complaint against the defendant in the Skrainski case. Sachem filed this appeal.

An examination of the record, the briefs and oral arguments by the parties persuades us that the judgment of the trial court should be affirmed. The issue of res judicata was correctly addressed in the trial court’s memorandum of decision. Sachem Enterprises v. Southern Connecticut Gas Co., 44 Conn. Sup. 163, 674 A.2d 874 (1996). We adopt the trial court’s memorandum of decision because it resolves all issues on appeal, and there is no useful purpose served in repeating the discussion contained therein. See AFSCME, Council 4, Local 681, AFL-CIO v. West Haven, 234 Conn. 217, 661 A.2d 587 (1995); Loika v. Aetna Casualty & Surety Co., 39 Conn. App. 714, 667 A.2d 78 (1995), cert. denied, 236 Conn. 902, 670 A.2d 322 (1996).

The judgment is affirmed.

       The defendant in this case is Southern Connecticut Gas Company. Harvester Chemicals, Inc., Harold J. Leese Floor Equipment and Supplies Company, Paul Skrainski and Howard Jacobs are third party defendants in this case.

       Pursuant to Practice Book § 4013 (a) (1) (A), the defendant submitted alternative grounds on which the judgment of the trial court should be affirmed. The defendant claims that the judgment of the trial court should be affirmed on the grounds that (1) the plaintiffs claim is barred by the doctrine of issue preclusion, (2) the plaintiff failed to plead a legally cognizable claim for indemnification, and (3) the plaintiffs claim is time barred under the applicable statute of limitations.


author: LANDAU, J.

text:
    BARRY COHEN v. ALLENE COHEN
    (14926)
    O’Connell, Foti and Landau, Js.
    Submitted on briefs December 14, 1995
    officially released April 23, 1996

      H. Owen Chace filed a brief for the appellant (plaintiff).

      George R. Temple filed a brief for the appellee (defendant).
   LANDAU, J.

This appeal arises from an action for dissolution of marriage. On September 28, 1993, the parties stipulated that their marriage had broken down irretrievably. The parties submitted a lengthy and comprehensive written separation agreement that covered, inter alia, child support for their two minor children. On that date, the trial court dissolved the marriage. After an appropriate canvassing of the parties, the agreement, which required the plaintiff to pay child support of $500 per week, was accepted by the court and incorporated into the judgment. No appeal was taken from the judgment of dissolution.

On July, 8, 1994, on a motion by the defendant, the plaintiff was found to be in contempt of court for failure to pay child support in accordance with the judgment. Consequently, the plaintiff agreed to pay the defendant $750 per week; a sum comprised of $500 for child support and $250 toward the arrearage. On November 28, 1994, the defendant filed a second motion for contempt alleging nonpayment of child support. Following a hearing on that motion, the trial court issued new financial orders. On June 1, 1995, the trial court denied the plaintiffs amended “motion to reopen the judgment and for [retroactive] modification of child support.” The plaintiff has appealed from the denial of that motion.

On appeal, the plaintiff claims that the trial court, at the time of the dissolution, did not have subject matter jurisdiction to render orders regarding child support. He argues that, although the parties privately agreed to the amount of child support that the plaintiff was to pay, the trial court failed to consider, or make reference to, the child support guidelines as required under General Statutes § 46b-215b (a). The plaintiff asserts that the court’s failure to comply with the statute constituted an abuse of authority that has resulted in an ongoing manifest injustice. Although the plaintiff does not challenge the court’s jurisdiction to hear the dissolution itself, he seeks to have the judgment opened and to have retroactive child support orders issued in accordance with the guidelines.

The plaintiffs collateral attack on the validity of the September, 1993 judgment of dissolution is framed as a challenge to the subject matter jurisdiction of the court. As we have consistently recognized, “[a] lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party. ... If a judgment is rendered without jurisdiction to do so, it may be opened and modified at any time. . . . The parties to an action cannot confer subject matter jurisdiction on the court by their consent, silence, waiver or private agreement.” (Citations omitted.) Arseniadis v. Arseni-adis, 2 Conn. App. 239, 242, 477 A.2d 152 (1984).

Because the plaintiff is not precluded from later asserting a lack of subject matter jurisdiction, the first issue we must decide is whether the trial court had jurisdiction to render the judgment of dissolution, pursuant to a written agreement of the parties, that included a child support order rendered in the absence of any reference to the guidelines.

“Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments.” Id., 243-44.

In Arseniadis, we sustained the challenge to the trial court’s subject matter jurisdiction to issue support orders in a dissolution action. In doing so, however, we emphasized that the appeal was “a direct attack on the judgment [of dissolution] made [less than one month] after the judgment was rendered. Such an attack is more likely to be sustained than if such were not the case.” Id., 244. Here, the plaintiffs challenge to the court’s jurisdiction is not only collateral in nature, but it is made nearly two years after the judgment of dissolution was rendered. Furthermore, since the date of the dissolution, the plaintiff has been held in contempt, has entered into an agreement to purge that contempt, and was heard on a motion for modification. Thus, the plaintiffs reliance on Arseniadis is misplaced.

We disagree with the plaintiffs claim that the trial court lacked subject matter jurisdiction. At the time of the dissolution, General Statutes (Rev. to 1993) § 46b-1 provided that “[m]atters within the jurisdiction of the superior court . . . shall be matters affecting or involving: (1) Dissolution of marriage ... (4) alimony, support . . . incident to dissolution of marriage. . . .” The court, therefore, had “competence to entertain the action before it”; Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); which was a complaint for dissolution coupled with a request for declaratory judgment and other relief.

Whatever irregularities there may have been in the procedure regarding the trial court’s judgment and child support orders, they do not rise to the level of a defect in subject matter jurisdiction. “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Lesser irregularities do not make a final judgment void.” (Citation omitted.) Id. The trial court had subject matter jurisdiction to render the judgment of dissolution and the plaintiff has not offered us any authority to support his jurisdictional claim. The plaintiffs collateral attack on the judgment of dissolution, therefore, cannot be sustained.

We cannot, however, end our inquiry at this point. There remain nonjurisdictional issues that must be addressed regarding the plaintiffs challenge to the trial court’s denial of his motions for reargument, articulation and reconsideration filed on June 13, 1995, his motion to open the judgment and for retroactive modification of child support filed on January 17, 1995, and his motion to vacate filed on January 25, 1995.

Each of the allegations in the plaintiffs motions is grounded on a factual basis requiring a finding of fact by the trial court. Practice Book § 4061 explicitly mandates that it is the responsibility of the appellant to provide us with an adequate record for review. The record here does not contain a written memorandum of decision, nor has a transcript containing a statement of the trial court’s finding of facts and conclusions of law been filed. Although the plaintiff did seek articulation of the trial court’s decision pursuant to Practice Book § 4051, upon the court’s denial, he failed to seek review of that denial by this court pursuant to Practice Book § 4054.

The plaintiff “was not absolved of the requirement of . . . seeking appropriate review in this court, where such review was necessary to create an adequate record for our review of his claim[s]. Without an adequate record on which to review the findings of the trial court, this court must assume that the trial court acted properly.” (Internal quotation marks omitted.) Plati v. United Parcel Service, 33 Conn. App. 490, 495, 636 A.2d 395 (1994).

Even if we wanted to review the plaintiffs claims on the basis of the transcript of the proceedings in which the court denied the plaintiffs motions, we could not do so because the transcript has not been filed or, apparently, ordered. The trial court limited itself to written notations on the motions. We, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court did not make a finding of contempt on the defendant’s second motion.

       General Statutes § 46b-215b (a) provides in pertinent part: “The child support . . . guidelines . . . shall be considered in all determinations of child support amounts . . .

       The plaintiff also argues that the entire settlement agreement is manifestly unfair because, at the time it was drafted, the plaintiff appeared pro se while the defendant was represented by an attorney. There is no merit to this argument. Although we are solicitous of the rights of pro se litigants; Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519, 370 A.2d 1306 (1976); “[s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 (1982).

       The plaintiff relies on Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994), to support his argument that the trial court is mandated to make a specific finding on the record of the amount of child support required by the guidelines. Favrow, however, was not decided until after the dissolution in this case and we will not apply Favrow retroactively in these circumstances. See Draper v. Draper, 40 Conn. App. 570, 672 A.2d 522 (1996). Moreover, we will not read Favrow so as to deprive the trial court of subject matter jurisdiction inasmuch as the Favrow court remanded the case for a new hearing in accordance with that opinion rather than entering a dismissal. The plaintiffs reliance on McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992), is misplaced for the same reasons.

       Practice Book § 4054 provides in pertinent part- “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051, may . . . make a written motion for review . . . and [this] court may . . . direct any action it deems proper.”