author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. SCOTT WINER
    (AC 26554)
    Bishop, Harper and Foti, Js.

      Submitted on briefs December 2, 2008
    officially released February 3, 2009

      Deborah G. Stevenson, special public defender, filed a brief for the appellant (defendant).

      Scott J. Murphy, state’s attorney, Lisa A. Riggione, senior assistant state’s attorney, and Christian M. Watson, assistant state’s attorney, filed a brief for the appel-lee (state).
   Opinion

BISHOP, J.

This case is before us on remand from our Supreme Court. The defendant, Scott Winer, appeals from the judgment of conviction, rendered after a jury trial, of failing to comply with the sex offender registration requirements of General Statutes § 54-251 (a). The remaining claims before us are whether (1) there was sufficient evidence to support the defendant’s conviction and (2) the court properly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 26, 1998, the defendant was convicted of illegal sexual contact with a victim younger than age sixteen in violation of General Statutes § 53-21 (2). On January 19, 2000, while an inmate at Enfield Correctional Institution, the defendant met with counselor Donald Cyr to complete sex offender registration forms. The forms seek general information, including the address where the inmate will reside after release. The forms contain sex offender advisement requirements delineating the inmate’s responsibilities after release and indicate that the failure to comply with any of these requirements is punishable as a class D felony. The defendant told Cyr that he lost his home when he was incarcerated and, consequently, did not know where he would live when he was released. Cyr construed his explanation as a refusal to give an address and indicated that on the forms. Cyr indicated that the forms provide that one must register with the department of public safety within three days of release. Cyr filled in the forms using information provided by the defendant, and the defendant signed the forms without indicating a residence address.

On March 13, 2000, Judith Cianchetti, a sex offender specialist assigned to the Bristol office of adult probation, met with the defendant to advise him again of the conditions of his probation prior to his release. At that time, Cianchetti asked the defendant for his address as required by the conditions of his probation. The defendant did not provide an address and told Cian-chetti that he did not know where he would be living. He indicated that he was going to look for an apartment and might move to Massachusetts. Cianchetti informed the defendant that he could not leave the state without permission and scheduled an appointment for him to report to probation immediately upon his release.

The defendant was released from custody on March 24, 2000. Richard Berglund, the supervisor of adult probation at the Bristol office, met with the defendant three days later, as scheduled, on March 27, 2000. Berglund reviewed with the defendant the conditions of his probation and inquired as to his address. The defendant indicated that on March 24, the day of his release, he had traveled to Massachusetts and put a deposit on an apartment there. Berglund told the defendant that he did not have permission to go to Massachusetts. The defendant told Berglund that he had stayed with his former college roommate at the Farmington Marriott for a couple of days after he was released and that he had slept in a car on March 26. Berglund gave the defendant the address of a local shelter, but the defendant later informed him that the shelter was full and that he slept at a bus station. At the defendant’s request, on March 27, Berglund submitted an application to transfer the defendant’s probation to Massachusetts, which was denied later that day.

The defendant had another appointment with Ber-glund scheduled for March 28, but he went to the Hartford office instead and asked that his probation be transferred there. The defendant then failed to call Ber-glund on March 29, as scheduled. On March 30, the defendant called Berglund but did not indicate where he was staying. Later that day, the defendant told Berglund that he planned to stay with a friend on Grant Street in Waterbury. On March 31, the defendant called Berglund and informed him that he was flying to Florida that evening.

Trooper Thomas Karanda was the sole enforcement officer at the sex offender registration unit (unit) at the time of the defendant’s release. At trial, he testified that all inmates are advised that they must report to the unit within three days of their release to verify where they are living. He explained that when newly released registrants do not have an address, they provide the unit with daily updates on their location until they find housing so that the unit’s records always reflect the registrant’s current location. Karanda received the defendant’s registration forms on March 20, 2000. Neither the defendant’s registration forms nor his file contained his residence address. The defendant did not contact the unit between the date of his release on March 24 and April 1, 2000. Consequently, the defendant was arrested for failing to comply with the registration requirements in violation of § 54-251. The defendant was subsequently found guilty as charged and was sentenced to three years imprisonment, suspended, with three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to convict him of violating § 54-251. The defendant’s claim in this regard is twofold. The defendant claims that he was homeless and that it was, therefore, impossible for him to comply with the statute because he did not have a residence address. The defendant also contends that he did not intentionally violate the statute. We are unpersuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Owens, 100 Conn. App. 619, 635, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007).

General Statutes § 54-251 (a) provides in relevant part: “Any person who has been convicted ... of a criminal offense against a victim who is a minor or a nonviolent sexual offense, and is released into the community . . . shall, within three days following such release . . . and whether or not such person’s place of residence is in this state, register such person’s name, identifying factors, criminal history record and residence address with the Commissioner of Public Safety, on such forms and in such locations as the commissioner shall direct . . . .”

With these principles in mind, we address the defendant’s claims in turn.

A

The defendant claims that it was impossible for him to comply with the statute because he did not have a residence address. The defendant’s claim requires us to construe the meaning of the term “residence address,” which is not defined in the statute. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratex-tual evidence of the meaning of the statute shall not be considered. ... In addition, General Statutes § 1-1 (a) provides in relevant part that words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. . . . When a statute does not define a term, we look to the common understanding expressed in the law and in dictionaries.” (Citation omitted; internal quotation marks omitted.) Fillion v. Hannon, 106 Conn. App. 745, 751, 943 A.2d 528 (2008).

Here, the defendant requests us to construe a “residence address” as “a place in which one lives habitually for a considerable period of time.” The defendant based this request at trial on definitions from Random House and Webster dictionaries in which the term “reside” is defined as “to dwell permanently or for a considerable period of time.” Instead, the court instructed the jury, in accordance with the definition from Ballentine’s Law Dictionary, that a residence is “any place of abode or dwelling place, however temporary it may be. ” Although “residence” may be defined in different ways, the definition employed by the court is consistent with the intent of the statute, which is to keep track of sex offenders in an attempt to reduce recidivism. See 41 H.R. Proc., Pt. 11, 1998 Sess., p. 3765; State v. Arthur H., 288 Conn. 582, 590, 953 A.2d 630 (2008); State v. Waterman, 264 Conn. 484, 490, 825 A.2d 63 (2003); State v. Kelly, 256 Conn. 23, 95, 770 A.2d 908 (2001).

Accordingly, the defendant’s residence during the relevant time period was wherever he was dwelling, no matter how temporary a situation. On this basis, the defendant could have complied with the statute simply by informing the unit where he was staying in a timely manner. In fact, Karanda testified that newly released registrants who have not yet secured housing typically update the unit daily as to their location. He stated that some registrants indicate that they are homeless but are still looking for aplace to live. He has had registrants indicate that they are sleeping under a bridge or that they use the police department as an address and give daily updates from that location indicating that they are still looking for housing. In this way, Karanda stated, the unit is aware of the registrant’s approximate location and that the registrant is still searching for a place to live. The state posits, and we agree, that an adoption of the defendant’s proposed definition would excuse homeless and temporarily housed sex offenders from compliance, thereby frustrating the intent of the statute to maintain records of the offenders’ locations for the purpose of public safety. On the basis of the foregoing, we conclude that the evidence was sufficient to convict the defendant because he failed to provide his residence address to the unit.

B

The defendant also claims that there was insufficient evidence to sustain his conviction because he did not intentionally violate § 54-251. Because the sex offender registry was created for the benefit of public safety, “the crime of failing to comply with [its] requirements is a strict liability offense.” State v. T.R.D., 286 Conn. 191, 220, 942 A.2d 1000 (2008). Thus, the state was not required to prove that the defendant intentionally violated the statute. Accordingly, the defendant’s sufficiency claim fails.

II

The defendant next claims that the court improperly denied his request to charge the jury on the affirmative defense of mistake of law. Under General Statutes § 53a-6 (b), a person maybe relieved of criminal liability if he engages in the proscribed conduct “under a mistaken belief that it does not, as a matter of law, constitute an offense [and] such mistaken belief is founded upon an official statement of law contained in ... an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”

Our review of the record does not reveal any evidence that any public official made a misstatement of the law on which the defendant relied in his conduct. Thus, § 53a-6 is not implicated in this case. Accordingly, the court properly refused to give the defendant’s requested charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       This court previously reversed the defendant’s conviction on the ground that he was entitled to a dismissal pursuant to General Statutes § 54-142a (c). State v. Winer, 99 Conn. App. 579, 915 A.2d 883 (2007). The Supreme Court reversed that decision and remanded the matter for consideration of the defendant’s remaining claims. State v. Winer, 286 Conn. 666, 945 A.2d 430 (2008).

       The defendant also claims that the court improperly instructed the jury as to the definition of “residence address” and intent. On the basis of our analyses in part I, we conclude that the court properly instructed the jury in that regard.


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    SILVIO BENEDETTO v. MUGNI ZAKU
    (AC 28995)
    Harper, Beach and Berdon, Js.
    Argued October 28, 2008
    officially released February 3, 2009

      Robert O. Hickey, with whom, on the brief, was Joseph J. Areata III, for the appellant (defendant Progressive Casualty Insurance Company).

      Keith P. Sturges, for the appellee (plaintiff).
   Opinion

BERDON, J.

The only issue in this personal injury case is whether the trial court abused its discretion in setting aside the verdict and ordering a new trial after the defendant insurance carrier refused to accept an additur to supplement the verdict in favor of the plaintiff. We hold that the court did not abuse its discretion and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are pertinent to our resolution of this appeal. On July 9, 2002, the plaintiff, Silvio Benedetto, was involved in a motor vehicle accident with Mugni Zaku. Thereafter, the plaintiff commenced this action against Zaku, seeking damages for personal injuries that he allegedly sustained in the accident. The court subsequently granted the plaintiffs motion to cite in as a defendant his own insurer, Progressive Casualty Insurance Company, to defend an underinsured motorist claim under the provisions of the plaintiffs insurance policy. In February, 2005, the plaintiff withdrew the action as against Zaku after Zaku admitted liability and his insurance carrier paid to the plaintiff the limits of Zaku’s policy in the amount of $20,000. The plaintiff maintained his claim against the defendant insurer, and the case proceeded to a jury trial. The issues for the jury to decide were whether the accident proximately caused the injuries claimed by the plaintiff and, if so, what the resulting damages were. On April 28, 2006, the jury returned a verdict in favor of the plaintiff in the amount of $8872.14 for past medical expenses and $50,000 for future medical expenses for surgery involving a two level spinal fusion with a laminectomy, for a total of $58,872.14. The jury did not, however, award any noneconomic damages. On May 5, 2006, the plaintiff filed a motion to set aside the verdict and for additur. On December 14, 2006, pursuant to General Statutes § 52-228b, the court ordered an additur of $50,000, which, on January 2, 2007, the defendant rejected. As a result, the court granted the plaintiffs motion to set aside the jury’s verdict and ordered a new trial. This appeal followed.

We begin with our standard of review. “In Wickers v. Hatch, 252 Conn. 174, 181-89, 745 A.2d 789 (2000), our Supreme Court set out the standard that governs appellate review of a trial court’s decision that a jury’s award of damages is inadequate. In such a case, a trial court has some discretion to set the jury verdict aside and to order a new trial unless the parties agree to a court specified additur to the amount awarded by the jury. . . .

“Wickers reflects the two competing jurisprudential principles that additurs bring into play. On the one hand, deference to the ruling of the trial court is warranted because that court, having observed the trial proceedings in their entirety, is in a better position than an appellate court to assess the credibility of the witnesses and the appropriate weight to be accorded their testimony. ... On the other hand, deference is problematic because the trial court’s exercise of its discretion impairs the litigants’ constitutional right to designate a jury, rather than a court, to be the fact finder in their case. . . . Indeed, the Supreme Court of the United States has declared, as a matter of federal law, that any additur violates the right to a jury trial that is guaranteed by the seventh amendment to the United States constitution. . . .

“On their face, these two jurisprudential principles are difficult to reconcile. To find the proper balance between them, Wickers holds that a case-specific standard should apply to the instance in which a party seeks to have a verdict set aside on the basis that it is legally inadequate. . . . For more than seventy-five years, judicial decisions have reflected the wisdom of legal realism that case law should reflect the factual circumstances under which the controversy between the parties arose. In that sense, every judicial ruling is case specific. Wickers must, therefore, have intended something more. We read Wickers as an instruction to a trial court specifically to identify the facts of record that justify the extraordinary relief of additur and as an instruction to an appellate court to inquire whether the facts so identified justify the trial court’s exercise of its discretion to set a jury verdict aside because of its perceived inadequacy.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Turner v. Pascarelli, 88 Conn. App. 720, 722-24, 871 A.2d 1044 (2005).

In the present case, the court, in its memorandum of decision, focused on the fact that the jury concluded that the accident proximately caused the plaintiffs injury. The court also considered that (1) both parties’ physicians agreed that the plaintiffs injuries were permanent and painful, and would likely worsen in the future, and (2) that both physicians disagreed as to how much of the plaintiffs back pain was attributable to the accident, but they both agreed that some of the plaintiffs pain was attributable to the accident. The court concluded that an award of $50,000 for a future surgery “that will produce pain, suffering and disability” without any award for noneconomic damages was not within the bounds of fair and reasonable compensation.

The record supports the court’s recitation of the facts adduced at trial. Although the parties’ expert witnesses disputed the extent of the plaintiffs injuries and their relationship to the July 9, 2002 accident, as opposed to a preexisting degenerative condition, the defendant insurer’s expert witness testified that he concluded that the plaintiff was asymptomatic prior to the accident, that the accident contributed to the plaintiffs injury and caused approximately 25 percent of the plaintiffs pain and that the plaintiffs pain would only get worse with time. The defendant insurer’s expert also conceded that on a regular basis, surgeons recommend surgery to treat injuries similar to the plaintiffs and that without surgery the plaintiff would experience pain for the rest of his life, although the expert personally would not recommend surgery because he believed that it was unlikely that surgery would improve the plaintiffs condition.

The jury found that the plaintiffs damages were proximately caused by the motor vehicle accident on July 9, 2002, and awarded the plaintiff 100 percent of his past medical bills and $50,000 toward future medical bills. This finding, however, is inconsistent with the jury’s finding that the accident did not cause the plaintiff any noneconomic damages, which indicates that the jury did not find that the accident caused the plaintiff any pain and suffering or permanent injury. See Schroeder v. Triangulum Associates, 259 Conn. 325, 332, 789 A.2d 459 (2002). The evidence presented to the jury pertaining to future medical bills addressed spinal fusion surgery. It is not reasonable for a jury to find a defendant liable for the expense of a spinal fusion surgery, but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery. Id. The jury was free to find the defendant insurer liable for some, all or none of the plaintiffs economic damages. After finding the defendant insurer liable for at least a portion of the plaintiffs spinal fusion surgery, however, the jury reasonably could not have found that the defendant insurer was free from liability for all of the pain or disability attendant to such surgery. See id., 333. The court identified this logical inconsistency in the jury’s verdict. It was, therefore, a proper use of its discretion to set aside the verdict and order a new trial.

Our holding today is consistent with the seminal case of Wichers v. Hatch, supra, 252 Conn. 174. In Wickers, our Supreme Court overruled the requirement that as a matter of law, economic damages must be accompanied by noneconomic damages. Id., 186. The court, however, declined to fix a benchmark for when noneconomic damages are required. Id., 188. Instead, the court mandated review on a case-by-case basis. The trial court must use all of its knowledge and consider whether the verdict is “so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence . . . .” (Internal quotation marks omitted.) Id., 187.

The present case is unlike any other in which this court has reversed a trial court’s judgment ordering a new trial due to the juiy’s failure to award noneconomic damages. The jury here awarded substantial economic damages and zero noneconomic damages. Contra Turner v. Pascarelli, supra, 88 Conn. App. 720 (abuse of discretion to set aside verdict awarding $4000 in economic damages and $400 in noneconomic damages). There also was no reason for the jury to question the plaintiffs credibility regarding the extent of his injuries. Contra Smith v. Lefebre, 92 Conn. App. 417, 424, 885 A.2d 1232 (2005) (abuse of discretion to set aside verdict awarding $5500 in economic damages and zero noneconomic damages where plaintiff admitted on cross-examination to lying about missing work and continuing to train with weights at gym). This case is similar, however, to many cases in which this court has held that a jury’s failure to award noneconomic damages was inconsistent with its verdict. See Fileccia v. Nationwide Property & Casualty Ins. Co., 92 Conn. App. 481, 489, 886 A.2d 461 (2005) (abuse of discretion to allow verdict with zero noneconomic damages where jury found defendant proximately caused injury requiring treatment with pain medication), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Elliot v. Larson, 81 Conn. App. 468, 477, 840 A.2d 59 (2004) (preexisting condition did not justify award of zero noneconomic damages where condition was asymptomatic prior to accident).

The court’s memorandum of decision reflects a thorough application of the law to the facts of this case. We conclude, therefore, that the court acted within its discretion to find that the jury’s verdict awarding the plaintiff almost $9000 in past medical bills and $50,000 toward the cost of future surgery without any compensation for noneconomic damages was improper as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       “ ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages . . . ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . . General Statutes § 52-572h (a).

       General Statutes § 52-228b provides in relevant part: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion .... No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. LAWRENCE J. MANWARE
    (AC 28290)
    McLachlan, Robinson and Stoughton, Js.
    Argued October 30, 2008
    officially released February 3, 2009

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Judith R. Dicine, supervisory assistant state’s attorney, for the appellant (state).

      Lawrence J. Manware, pro se, the appellee (defendant).
   Opinion

STOUGHTON, J.

The state, with permission of the trial court, appeals from the judgment dismissing the information filed against the defendant, Lawrence J. Manware. The dispositive issue in this appeal is whether the court improperly granted the defendant’s motion to dismiss without holding an evidentiary hearing to resolve disputed issues of fact. We reverse the judgment of the trial court and remand the case for further proceedings.

The record and court file reveal the following background. On April 5, 2005, the state filed an information charging the defendant with criminal lockout in violation of General Statutes § 53a-214. After a number of continuances, on September 29, 2005, the defendant filed a motion to dismiss the information accompanied by a memorandum of law in which he asserted that the premises in question had been abandoned by his former tenants. The state filed an objection to the motion on July 11, 2006, with a memorandum of law in which it alleged that one of the tenants had not abandoned the premises and that in any event, the defendant had violated provisions of General Statutes § 47a-llb, concerning abandonment, and § 53a-214.

On October 31, 2006, the court heard arguments and announced its decision orally, granting the motion to dismiss. Although the court agreed that the state could charge the defendant with a violation of § 53a-214, the court expressed some concern over whether this matter should have been treated as a civil matter, noting that the state relied on a civil statute, § 47a-llb, to define a criminal statute, namely, § 53a-214. The court then indicated that judicial relief was available to the complainant by way of a civil action under General Statutes § 47a-18a.

The state filed a motion to reargue the decision of the court on November 20,2006, which the court denied. The state then filed a motion for articulation, and the court, after initially denying the motion, responded that it had granted the motion to dismiss on the basis of the defendant’s argument that the complainant had abandoned the premises.

The state claims on appeal first that the court improperly rejected its reliance on § 47a-llb and ruled that a civil action for lockout pursuant to § 47a-18a was the appropriate remedy. Second, the state claims that the court improperly granted the motion to dismiss without holding a hearing to resolve disputed factual issues. As the articulation filed by the court makes clear, the court did not grant the motion to dismiss out of any concern over whether a civil remedy might have been available. The information was dismissed on the ground that the premises had been abandoned. See footnote 3.

The facts cited by the court were not admitted as undisputed facts. Though they find support in the defendant’s memorandum of law, the state’s memorandum of law shows that at least some of the facts were disputed. Whether the complainant intended to return to the premises was a disputed fact as was the fact that rent had not been paid. In addition, the defendant, who appeared pro se to argue this appeal, conceded at oral argument that there were facts in dispute. “When issues of fact are disputed, due process requires that an eviden-tiary hearing be held .... [A] court cannot make a critical factual finding based on memoranda and documents submitted by the parties.” (Citation omitted.) Coughlin v. Waterbury, 61 Conn. App. 310, 315, 763 A.2d 1058 (2001). We agree with the state that because the facts relied on to show abandonment were in dispute, an evidentiary hearing is required that they might be resolved. See id., 315-16. Because our conclusion that an evidentiary hearing is required is dispositive of this appeal, we decline to reach the merits of the state’s remaining claim.

The judgment is reversed and the case remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

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

       General Statutes § 53a-214 (a) provides in relevant part: “A landlord of a dwelling unit ... an owner of such a unit, or the agent of such landlord or owner is guilty of criminal lockout when, without benefit of a court order, he deprives a tenant ... of access to his dwelling unit or his personal possessions.”

       On the same date, and apparently during the arguments, the prosecutor handed to the court a substitute information charging, in the first count, criminal trespass in the second degree in violation of General Statutes § 53a-108 and, in the second count, criminal lockout in violation of General Statues § 53a-214. The motion on which the court acted, however, addressed only the original information charging criminal lockout, as the judgment file clearly shows.

       The tenant, who claimed that he did not abandon the premises in question, filed a complaint with the police, which gave rise to the charge of criminal lockout against the defendant.

       In an articulation of the factual basis for the ruling, the court stated that it had found a number of unique circumstances in this case. It detailed a number of those circumstances and concluded that the facts that the defendant lived upstairs from his former tenants, knew that the complainant was not residing in the apartment and could see a pile of mail building up, that the other tenant had stopped paying rent and had vacated the premises, and that the full terms of the rental agreement had not been met since December, 2004, could give rise to a reasonable belief that the premises had been abandoned.


author: PER CURIAM.

text:
    FRED GALLIMORE v. COMMISSIONER OF CORRECTION
    (AC 28935)
    Bishop, DiPentima and Foti, Js.
    Argued December 2, 2008
    officially released February 3, 2009

      Erin M. Kallaugher, special public defender, for the appellee (petitioner).

      Toni M. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Fred Gallimore, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claims that his trial counsel rendered ineffective assistance. We dismiss the appeal.

The following facts and procedural history provide the necessary backdrop to the disposition of the petitioner’s appeal. On June 1, 2002, the petitioner, along with Erin O’Connor, was arrested for assaulting and robbing Robert Schofield in the hallway of Schofield’s apartment building in New Haven after the couple followed him there from a local convenience store. Scho-field, who was seventy-four years old at the time, was pushed to the floor and injured during the robbery. His wallet, containing his identification and automated teller machine card, was taken. Schofield identified both O’Connor and the petitioner prior to their arrest while the pair was in police custody. O’Connor and the petitioner, who were separated after their arrest, gave to the police investigating the incident essentially the same account of what had occurred. They each claimed, in essence, that the alleged robbery was in actuality an altercation resulting from a dispute between O’Connor and Schofield involving the fee for sexual services. They alleged that Schofield physically accosted O’Connor after an agreed on price could not be reached and that the petitioner, who was waiting outside Schofield’s apartment building in a car, merely, and in response to O’Connor’s plea for help, separated the two. O’Connor, however, gave a different account at the petitioner’s trial when she testified for the state. At the petitioner’s trial, her testimony basically was identical to that of Schofield—that the pair robbed and assaulted Schofield in the hallway of his apartment building, pushing him to the floor and taking his wallet from his pants pocket.

After the jury trial, the petitioner was convicted of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1), conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 and 53a-123 (a) (3), and assault in the third degree of a person older than sixty years in violation of General Statutes § 53a-61a (a) (1). The petitioner was sentenced to an effective term of fifteen years of incarceration. The petitioner filed a direct appeal with this court. His appellate counsel, however, was permitted to withdraw after filing an Anders brief. The appeal was dismissed on June 2, 2005, because the petitioner, proceeding pro se, failed to file a brief with this court. The petitioner subsequently brought this petition for a writ of habeas corpus. In his second amended petition, the petitioner asserted several claims of ineffective assistance of trial counsel. In a memorandum of decision, the habeas court denied the petition, finding as to his ineffective assistance of trial counsel claims that the petitioner had failed to prove that he was denied effective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court denied the petitioner’s request for certification to appeal. The petitioner, on appeal, pursues three of the issues he raised in his petition.The petitioner claims that trial counsel provided ineffective assistance by failing to cross-examine O’Connor properly, by failing to apprise the petitioner of plea offers from the state and by failing to investigate to prepare a defense.

Preliminarily, we set forth the proper standard of review and applicable legal principles that govern our resolution of these issues. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Guadalupe v. Commissioner of Correction, 83 Conn. App. 180, 182, 849 A.2d 883, cert. denied, 270 Conn. 911, 853 A.2d 525 (2004). Furthermore, “[i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.''’ (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).

We first address the petitioner’s claim that the court improperly concluded that he failed to demonstrate that his trial counsel provided him with ineffective assistance by failing to cross-examine O’Connor properly. The petitioner argues that his trial counsel, Shepard Sherwood, failed to impeach O’Connor effectively in a number of ways. Chief among those was that counsel failed to cross-examine her as to possible favorable treatment from the state as a result of her testimony at the petitioner’s trial and potential perjury charges lodged against her for her previous testimony and also about her history of drug use and criminal behavior. At the habeas trial, however, Sherwood testified that his strategy was not to impeach O’Connor at all in an attempt to convince the jury that her previous signed statement and testimony in which she indicated that no robbery had occurred was the truth. Sherwood’s tactic was to portray her as angry and resentful of being incarcerated and that the change in her story was a result of her anger and resentment. “An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy.” State v. Drakeford, 63 Conn. App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002). After reviewing the record, we conclude that the court did not abuse its discretion in determining that the petitioner failed to meet his burden of showing that Sherwood was deficient in his cross-examination of O’Connor.

The petitioner’s second claim on appeal involves Sherwood’s failing to apprise him of plea offers from the state. The petitioner claims that he was prejudiced because Sherwood failed to explain to him fully, in terms that he could comprehend, the plea deal offered by the state. The petitioner also claims that there were actually two plea offers and that Sherwood never divulged the second offer to him and failed to explain the other fully. Sherwood testified that there was only one plea offer and that the petitioner flatly rejected it after Sherwood apprised him of it. The court made no specific finding in this regard; however, it stated that the petitioner “failed to introduce evidence in [the] habeas trial that supported any of the points [he raised].” After reviewing the record, we conclude that the court did not abuse its discretion in this determination.

The last claim on appeal involves the contention that Sherwood was ineffective for failing to investigate to prepare a defense. Specifically, the petitioner claims that Sherwood failed to find and interview Richard True, a potential exculpatory witness who apparently was living with O’Connor at the time of the petitioner’s arrest. “[Although it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 285 Conn. 598-99. True died sometime after the petitioner’s trial and, therefore, did not testify at the habeas trial. As a result, we cannot say that the court abused its discretion in determining that the petitioner failed to meet his burden of proving ineffective assistance of trial counsel in this regard.

The court, after considering all of the evidence presented, concluded that the petitioner had not been deprived of the effective assistance of counsel in any respect at any stage of the proceedings. Furthermore, the court’s findings are supported by the evidence in the record. We conclude that the court’s analysis is sound. Moreover, our thorough review of the issues raised by the petitioner and the court’s resolution of those issues leads us to conclude that the petitioner has not demonstrated that further review is warranted. The court concluded properly that the petitioner failed to show that Sherwood’s representation was deficient. The record does not reveal any errors made by trial counsel that deprived the petitioner of his right to effective representation. Considering the record in light of Strickland, we cannot conclude that the issues in this case are debatable among jurists of reason, that they could have been resolved in a different manner or that they raise any question deserving of further examination. See Simms v. Warden, supra, 230 Conn. 616. We therefore conclude that the court’s denial of the petition for certification to appeal reflected a sound exercise of discretion.

The appeal is dismissed.

       O’Connor gave a signed statement to New Haven police indicating this version of events. She also testified as to this version of events at the petitioner’s violation of probation hearing.

       This sentence was to run concurrently with a three year sentence that the petitioner was serving for a violation of probation. The substance of the violation of probation sentence was the underlying incidents to his criminal conviction. That sentence, however, was not part of the habeas trial and is, therefore, not part of this appeal.

         Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

       “Under [the Strickland] test, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficientperformanceandactualprejudice.Thefirstprongissatisfiedbyproving that counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Russell v. Commissioner of Correction, 49 Conn. App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom. Russell v. Armstrong, 525 U.S. 1161, 119 S. Ct. 1073, 143 L. Ed. 2d 76 (1999).

       The petitioner raised a fourth claim in his brief to this court involving ineffective assistance of counsel during the postconviction, presentencing phase of his trial; however, the petitioner abandoned this claim at oral argument.


author: LAVERY, J.

text:
    LEE AND LAMONT REALTY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF VERNON
    (AC 29094)
    Bishop, Gruendel and Lavery, Js.

      Argued October 10, 2008
    officially released February 3, 2009

      Leonard Jacobs, with whom, on the brief, were Steven M. Basche and Michael J. Bonnano, for the appellant (plaintiff).

      Susan Boyan, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Lee & Lamont Realty, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant, the planning and zoning commission of the town of Vernon (commission), to amend the Vernon zoning regulations and the Vernon zoning map. The plaintiff claims impropriety in (1) the commission’s consideration of a memorandum from a commission member after the public hearing was closed and (2) the commission’s instituting a 200 foot buffer along an interstate highway. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. On May 3, 2005, the Vernon town planner filed an application with the commission to update the zoning regulations and zoning map. He proposed several changes, including the elimination of the existing planned mixed use development zone and the creation in its place of two separate planned development zones. The planned development zone referred to as the “1-84 exit # 67 area” is the subject of this appeal and is owned by the plaintiff.

The commission held a public hearing on the proposed amendments on June 9, 2005, and closed the public hearing testimony that night. The commission continued the public hearing at a special meeting on June 13, 2005, for summation and final questioning by the commission. The commission adopted the proposed amendments on June 13,2005. The final adopted regulations require an additional twenty-five feet of depth to the front, rear and side yards for each additional 20,000 square feet of building footprint over an initial 40,000 square feet to a maximum 200 foot depth. The meeting minutes list the rationale for the zoning amendments as necessary for “preventing an undesirable situation from occurring” and that the commission’s “[ijntent is to have growth that is controlled and [to] preserve the character and quality of life of the [t]own.” Further, the commission included a purpose section in the amendment that reads: “This district encompasses an area which is served by an interstate highway and two (2) [s]tate roads. The purpose of this district is to provide for development that can take advantage of this transportation infrastructure and contribute to the economic development and fiscal improvement of the community, while being compatible with the [t]own [p]lan of [conservation and [development and taking into account the existing commercial and residential development and to avoid negative impacts of traffic and negative impacts on existing natural resources, especially in regard to the environmental characteristics, constraints, and resources of the Tankerhoosen [r]iver [watershed.”

The plaintiff appealed to the court from the zoning regulation and zoning map change, and the court dismissed the appeal in a memorandum of decision. After this court granted certification, the plaintiff timely filed this appeal. Additional facts will be set forth as necessary.

I

The plaintiff first claims that it was improper for the commission to consider a memorandum from a commission member after the public hearing was closed. The commission argues that the information in the memorandum did not constitute new evidence and therefore was not improper. We agree with the commission.

At issue is an e-mail sent by one commission member to the other members that included a memorandum prepared by the commission member. The e-mail begins with a statement from the commission member: “It is apparent to me that one major issue to be addressed in tonight’s meeting is the graduated open-space requirements for buildings over 40,000 square feet. I have taken the time to review my notes from the various public hearings and all of the written submissions, and wanted to put my thoughts [into] writing.” The trial court found that this “memorandum is merely a summary of her opinion based on her personal knowledge and, as such, constitutes a legitimate part of the commission’s deliberations.”

General Statutes § 4-181 (b) provides: “Notwithstanding the provisions of subsection (a) of this section, a member of a multimember agency may communicate with other members of the agency regarding a matter pending before the agency, and members of the agency or a hearing officer may receive the aid and advice of members, employees, or agents of the agency if those members, employees, or agents have not received communications prohibited by subsection (a) of this section.”

“We have in the past permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety . . . and local property values.” (Citations omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). “When acting in its legislative capacity, a commission has broad discretion and is entitled to take into consideration facts learned through personal knowledge or observation in order to develop responsible planning for the present and future development of the community.” Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 375, 580 A.2d 91, cert. denied, 216 Conn. 832, 583 A.2d 131 (1990).

“While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. . . . The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public.” (Citations omitted.) Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974).

A careful review of the record reveals that the e-mail contained a summary of the commission member’s opinion. Further, the information contained in the memorandum had been discussed by the public during the public hearing on June 9,2005. When made by a commission member, such an expression is permissible while the commission is deliberating. This expression of opinion by the commission member did not violate the rules of “natural justice” or due process. Id.

II

The plaintiff next claims that the commission’s decision to impose a 200 foot buffer along Interstate 84 was an abuse of its legislative authority and not supported by sufficient evidence in the record. The commission argues that the buffer requirement was reasonably related and narrowly tailored to accomplish a proper exercise of its police power and is supported by the record. We agree with the commission.

The following facts are relevant to the plaintiffs claim. Before the proposed amendments were set forth by the town planner and a consultant for the commission, three meetings were held to obtain public input on what needed to be addressed with the amendments. The concerns expressed that were considered in drafting the zoning amendments were the lack of protection for the environment, storm water management and clarity on prohibited uses. Specifically, the consultant stated that “[t]he puipose of the [new] zone was expanded once again to help clarify what the commission wants to happen there and so that the public as well as applicants could realize ahead of time what the real purposes of the zone are.” The economic development coordinator expressed his opinion, considering the setback along the interstate highway, that he did “not see the value in requiring sizable yard requirements along property boundaries that do not abut residential land.” The consultant for the commission made a presentation regarding the purpose of the yard setbacks, which was to limit the buildable area. The discussion of the commission focused on being able to limit building size and keeping the density of the buildings in the area relatively low.

“In adopting or amending zoning regulations, the commission acts in a legislative capacity. ” Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984). “Acting in such a legislative capacity, the [planning and zoning authority] has wide and liberal discretion . . . and is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . Legislative decisions reached by [a planning and zoning] commission must be upheld by the trial court if they are reasonably supported by the record. ... In appeals from administrative zoning decisions, by contrast, the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by substantial evidence in that record.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Dutko v. Planning & Zoning Board, 110 Conn. App. 228, 230-31, 954 A.2d 866 (2008).

“Our Supreme Court often has articulated the proper, limited scope of judicial review of a decision of a local planning and zoning authority. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt [zoning] amendments. ... In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. . . . Acting in such legislative capacity, the local board is free to amend [or decline to amend] its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission.” (Internal quotation marks omitted.) Id., 232-33. “Within these broad parameters, [t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [General Statutes] § 8-2 . . . .” (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).

“Appeals from legislative zoning decisions require a showing that the commission has acted arbitrarily . . . illegally ... or in abuse of discretion. . . . Legislative decisions reached by [a planning and zoning] commission must be upheld by the trial court if they are reasonably supported by the record. ... A zoning commission is not required to give reasons for denying a zone change application [but] [w]here reasons are given, it is sufficient if any one of the reasons would be a valid basis to deny the application. ... In accordance with these principles, in [an] appeal from the commission’s [legislative] decision, the commission’s only burden before the trial court [is] to show that the record before the [commission] supported] the decision . . . and that the commission did not act arbitrarily . . . illegally ... or in abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Dutko v. Planning & Zoning Board, supra, 110 Conn. App. 233.

A review of the record reveals that the setbacks were debated at length and fully considered in light of the comprehensive plan for development and the commission’s legislative powers. The record supports the decision of the commission and the decision was not arbitrary or illegal. Accordingly, the court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that one member of the commission sent her memorandum to the other members through an e-mail. There is no indication that any of the recipients of the e-mail responded, fiad there been some collective back and forth of e-mails, it could have been considered a meeting. See Windham v. Freedom of Information Commission, 48 Conn. App. 529, 711 A.2d 741 (1998).


author: ROBINSON, J.

text:
    SHARON BROWN v. UNITED TECHNOLOGIES CORPORATION, PRATT AND WHITNEY AIRCRAFT DIVISION, ET AL.
    (AC 29293)
    Bishop, Robinson and Freedman, Js.

      Argued October 17, 2008
    officially released February 10, 2009

      Mark Merrow, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendants).
   Opinion

ROBINSON, J.

This appeal concerns whether an injury suffered by an employee while walking at a pace akin to power walking during an unpaid lunch break on the employer’s premises is compensable under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The plaintiff, Sharon Brown, appeals from the decision of the workers’ compensation review board (board) vacating the decision of the workers’ compensation commissioner (commissioner) granting her application for workers’ compensation benefits. We affirm the decision of the board.

The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. The plaintiff, who began working for the defendant United Technologies Corporation, Pratt & Whitney Aircraft Division (Pratt & Whitney) in 1978, was taking a walk on the Pratt & Whitney grounds during her one-half hour unpaid lunch break on July 8, 2005, when she fell and sustained an injury to her right shoulder. The plaintiff, an employee of the shipping department, had been walking this particular path every day during her lunch break for ten years unless there was rainfall or the temperature was less than forty-eight degrees. The plaintiff testified before the commissioner that she walked daily for the purpose of improving her health; she is a borderline diabetic and her physician recommended that she exercise. She also testified that her walking is purely voluntary, that she does not associate with any other Pratt & Whitney employees during her walk, that when she walks she chums her arms up and down to get her heart rate higher and that she makes a concentrated effort to elevate her heart rate by walking at a rapid pace. She does not have to ask permission of her supervisor or anyone else at Pratt & Whitney to take a lunchtime walk.

The plaintiff reported her injury to a supervisor and immediately sought medical attention at work. She was sent to the emergency room at Middlesex Hospital and a few days later visited her physician. She eventually learned that she had a tom tendon in her shoulder, and she received physical therapy for her injury.

The plaintiff presented evidence at the hearing before the commissioner that she was totally incapacitated from July 9 through August 20, 2005. In his September 26, 2006 finding and award, the commissioner found that “ [t]he health of Pratt & Whitney workers was surely enhanced by any type of reasonable physical activity pursued on company grounds during unpaid breaks by its employees.” The commissioner further found that the plaintiffs walking on company grounds during her lunch break “was, under the within facts, ‘incidental’ to her employment, and, therefore, her right shoulder injury is found to be a compensable event,” and also was not barred from compensation under the social-recreational exception to the act. Pratt & Whitney filed a petition for review and a motion to correct the commissioner’s decision; the motion to correct was denied by the commissioner.

On October 23, 2007, the board issued its opinion and vacated the commissioner’s finding and award, concluding that the plaintiffs injury was not compensable. The board rejected the commissioner’s finding that the plaintiffs injury was incidental to her employment and found no mutual benefit to both parties from the plaintiffs activities. The board further found that the commissioner’s finding that “[t]he health of Pratt & Whitney workers was surely enhanced by any type of reasonable physical activity” was “unsupported by any probative evidence on the record.” (Internal quotation marks omitted.) This appeal followed.

The plaintiff argues that the board improperly concluded that her activities were not incidental to her employment. She did not address the issue of whether her injury arose out of her employment because she claims that Pratt & Whitney concedes this; Pratt & Whitney, however, disputes it. The plaintiff further argues that the social-recreational exception in § 31-275 (16) (B) (i) does not apply to bar compensation for her injury. We affirm the decision of the board not for the reason enunciated by the board but on the ground that the social-recreational exception of § 31-275 (16) (B) (i) bars coverage for the plaintiffs injury.

We initially set forth the applicable standard of review. A party aggrieved by a commissioner’s decision to grant or deny an award may appeal to the board pursuant to General Statutes § 31-301. The board “is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Spatafore v. Yale University, 239 Conn. 408, 419, 684 A.2d 1155 (1996). “Our scope of review of the actions of the board is similarly limited. . . . The role of this court is to determine whether the . . . [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Parisi v. Yale University, 89 Conn. App. 716, 722, 874 A.2d 852 (2005).

I

The plaintiff argues that she has satisfied the causal connection between her employment and her injury because she has established that her injury both arose out of her employment and in the course of her employment. Pratt & Whitney asserts that the plaintiff has failed to satisfy both the “arose out of’ and “in the course of’ prongs because her injury did not occur as a proximate cause of her employment and because she has failed to demonstrate that her daily walks were incidental to her employment. We address each argument in turn.

For her injury to be compensable, the plaintiff had to prove that it arose both out of her employment and in the course of her employment. “It is well settled that, because the purpose of the act is to compensate employees for injuries without fault by imposing a form of strict liability on employers, to recover for an injury under the act the plaintiff must prove that the injury is causally connected to the employment. To establish a causal connection, a plaintiff must demonstrate that the claimed injury (1) arose out of the employment and (2) in the course of the employment.” (Internal quotation marks omitted.) Spatafore v. Yale University, supra, 239 Conn. 417-18. “The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” (Internal quotation marks omitted.) Ryker v. Bethany, 97 Conn. App. 304, 309, 904 A.2d 1227, cert. denied, 280 Conn. 932, 909 A.2d 958 (2006).

A

We first conclude that the plaintiffs injury arose out of her employment. “Proof that the injury arose out of the employment relates to the time, place and circumstances of the injury.” (Internal quotation marks omitted.) Spatafore v. Yale University, supra, 239 Conn. 418. “Speaking generally, an injury arises out of an employment when it occurs in the course of the employment and as a proximate cause of it. [Therefore] [a]n injury which is a natural and necessary incident or consequence of the employment, though not foreseen or expected, arises out of it. . . . [Conditions that arise out of employment are peculiar to [it], and not such exposures as the ordinary person is subjected to. It is therefore immaterial where the exposure originates, whether from the employment, or outside of it.” (Emphasis in original; internal quotation marks omitted.) Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219, 237-38, 875 A.2d 485 (2005). In Spatafore, our Supreme Court stated: “A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact. . . . This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function. . . . This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact. . . . The [board] is, therefore, bound by the findings of fact made by the commissioner, unless additions, corrections or modifications of findings of fact are made . . . .” (Internal quotation marks omitted.) Spatafore v. Yale University, supra, 419-20.

Although the commissioner did not make an explicit finding that the plaintiffs injury arose out of her employment, it is implicit in the commissioner’s finding that the plaintiffs injury was compensable because compen-sability requires a finding that the injury arose both out of and in the course of employment. The board did not explicitly address the issue of whether the plaintiffs injury arose out of her employment in overturning the finding and award. On the basis of the facts found by the commissioner and the great deference afforded to the commissioner, we cannot say that this case clearly lies on one side or the other of the issue of whether the plaintiff had so departed from her employment as to conclude that her injury did not arise out of her employment.

B

We next address the issue of whether the plaintiffs injury occurred “in the course of’ her employment. The plaintiff asserts that her injury occurred “in the course of’ her employment because it occurred in the period of her employment, at a place that she may reasonably have been and while she was doing something “incidental” to her employment.

To satisfy the “in the course of’ test, the plaintiff must prove that the injury occurred “(a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” (Internal quotation marks omitted.) Id., 418. The plaintiffs injury occurred during the period of her employment and on her employer’s premises, a place that she might reasonably have been, both of which Pratt & Whitney concedes. Furthermore, the plaintiffs injury was sustained while she was doing something that was incidental to her employment, and she is, therefore, able to satisfy all three prongs of the “in the course of’ test. Pratt & Whitney concedes that the plaintiff has satisfied the first two prongs of the “in the course of’ test but disputes that she was doing something “incidental” to her employment when she was injured.

“[W]hen determining whether the activity is incidental to the employment, the following rule should be applied: If the activity is regularly engaged in on the employer’s premises within the period of the employment, with the employer’s approval or acquiescence, an injuiy occurring under those conditions shall be found compensable.” McNamara v. Hamden, 176 Conn. 547, 556, 398 A.2d 1161 (1979). “[T]he term of art ‘incidental’ embraces two very different kinds of deviations: (1) a minor deviation that is ‘so small as to be disregarded as insubstantial’ . . . and (2) a substantial deviation that is deemed to be ‘incidental to [employment]’ because the employer has acquiesced to it.” (Citation omitted.) Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 389, 727 A.2d 1253 (1999). “[E]mployer acquiescence is a prerequisite to compensability only if the deviation previously has been determined to be substantial. Otherwise, [i]f the deviation is so small as to be disregarded as insubstantial, then the lack of acquiescence is immaterial.” (Emphasis in original; internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 252 Conn. 261, 268, 746 A.2d 743 (2000).

In determining whether an activity is incidental to employment, “[n]o exact statement, applicable in all cases, can be made as to what is incidental to an employment.” (Internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., supra, 248 Conn. 389. “The meaning of the term ‘incidental’ need not be defined as compulsion by or benefit to the employer in all cases.” McNamara v. Hamden, supra, 176 Conn. 553. Although the act of eating lunch itself is considered to be incidental to employment; see Vitas v. Grace Hospital Society, 107 Conn. 512, 516, 141 A. 649 (1928); as it is considered to be within the category of activities the “performance of which while at work are reasonably necessary to [the employee’s] health and comfort”; Lovallo v. American Brass Co., 112 Conn. 635, 639, 153 A. 783 (1931); not every injury that occurs during a lunch period is necessarily incidental to one’s employment.

In this case, the commissioner found that “[t]he [plaintiffs] injury was sustained on Pratt & Whitney grounds during her work hours. . . . The employer was well aware and acquiesced in the fact that many of its employees and supervisors walked daily around the Pratt & Whitney campus on lunch breaks. . . . The health of Pratt & Whitney workers was surely enhanced by any type of reasonable physical activity pursued on company grounds during unpaid breaks by its employees.” The board concluded that the commissioner improperly found that the plaintiffs injury was incidental to her employment. The board noted that “[w]hile such activity may well be beneficial, the trial commissioner did not reach any subordinate finding of fact that the [plaintiffs] purpose in undertaking her physical fitness regimen was intended to benefit her employer.” The board further concluded that “the subordinate facts and evidence in the record do not support a finding that the [plaintiffs] injury was incidental to her employment,” noting that the commissioner’s finding that the health of Pratt & Whitney workers was surely enhanced by reasonable physical activity pursued on company grounds was inconsistent with the evidence in the record and unsupported by any probative evidence in the record.

We find Mazzone v. Connecticut Transit Co., 240 Conn. 788, 694 A.2d 1230 (1997), to be instructive on this issue. In Mazzone, the plaintiff, who was employed as a mechanic for the defendant transit company, was injured during his unpaid lunch break while he was eating his lunch on an out of service bus parked on the defendant’s premises. Id., 790. Our Supreme Court found that the commissioner had incorrectly determined that the plaintiffs injuries were not incidental to his employment, noting that “[e] a,ting in the lunch hour, and other personal acts . . . are incidental to the employment .... [I]t is not dispositive that the activity of eating lunch did not further the claimant’s employment directly. Acts of ministration by a servant to himself, such as . . . relieving his hunger . . . performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment . . . though they are only indirectly conducive to the purpose of the employment.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 795.

Likewise, although the plaintiffs injury occurred while she was walking at an accelerated pace during her lunch break, which is not an activity that is directly conducive to her employment at Pratt & Whitney, the activity was reasonably necessary to her personal comfort while at work. In addition, Pratt & Whitney was aware that the plaintiff, and many other of its employees, walked during their lunch hour on its premises. When the activity in question is related to personal comfort, recreation, or horseplay and occurs regularly on the employer’s premises, the activity becomes incidental if it is approved of or acquiesced in by the employer. See McNamara v. Hamden, supra, 176 Conn. 555 (“[I]t should not be necessary [in such cases] to bolster the case by adding proof of employer sponsorship of the activity or employer benefit therefrom. It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment.” [Internal quotation marks omitted.]); Mazzone v. Connecticut Transit Co., supra, 240 Conn. 795 (noting other cases in which employer sanctioned activities were found to be incidental to employment). In light of the circumstances, we conclude that the commissioner correctly determined that the plaintiffs activities were incidental to her employment, and the board incorrectly determined that there were not sufficient subordinate facts to support this finding.

II

Having determined that the plaintiffs injury satisfied the “arises out of’ and “in the course of’ tests for compensability, we must next determine whether the social-recreational exception of § 31-275 (16) (B) (i) applies to preclude coverage for the plaintiffs injury. Even when a plaintiff has established that the injury arose out of and in the course of employment, the injury will not be compensable if § 31-275 (16) (B) (i) bars coverage. We conclude that the exception applies.

“It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Internal quotation marks omitted.) Labadie v. Norwalk Rehabilitation Services, Inc., supra, 274 Conn. 227.

To determine whether the exclusion of § 31-275 (16) (B) (i) applies, we must determine whether the major purpose of the plaintiffs activity was recreational. Neither this court nor our Supreme Court has had previous occasion to interpret the meaning of the term “recreational” in this context. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Hardt v. Watertown, 95 Conn. App. 52, 57, 895 A.2d 846 (2006), aff'd, 281 Conn. 600, 917 A.2d 26 (2007).

We look first to the text of the statute. Section 31-275 (16) (B) (i) provides that for the purposes of the act, “personal injury” or “injury” shall not be construed to include “[a]n injury to an employee that results from the employee’s voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity . . . .”

“The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 605, 887 A.2d 872 (2006). Neither party claims that the statute is ambiguous on its face; instead, both argue that § 1-2z should apply and that the plain meaning of the statute supports both of their claims. The plaintiff argues that because § 31-275 (16) (B) (i) plainly does not include the terms “health” or “exercise” as specifically excluded activities, the statute should not be interpreted to exclude her activities. Pratt & Whitney argues that the statute on its face excludes the plaintiffs injury but goes on to discuss an extratextuai definition of “recreation” in its analysis of how the statute plainly excludes the plaintiffs activity. Because the plain meaning of the statute cannot support both contentions, we conclude that the statute is ambiguous as to whether the recreational exception encompasses power walking or the like. Section 31-275 (16) (B) (i) does not define recreational, nor does it give an exhaustive list of which activities fall within that category. Because we conclude that the statute is ambiguous, we may consider extra-textual evidence to ascertain its meaning. See id., 606; see also In re Kevin K., 109 Conn. App. 206, 213, 951 A.2d 39 (“[hjaving concluded that the text is not clear and unambiguous, we now must turn to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter for intexpretive guidance” [internal quotation marks omitted]), cert. granted on other grounds, 289 Conn. 930, 958 A.2d 159 (2008).

We then turn to the legislative history of § 31-275. Section 31-275 is the definitions section of the act. The entire section was overhauled in 1991, and in 1993 subdivision (16) (B) was added to refine how not to construe the terms “personal injury” or “injury” for the purposes of the act. See Public Acts 1991, No. 91-32; Public Acts 1993, No. 93-228. The discussion in the House of Representatives did not center on this particular change; it was focused on other aspects of the proposed amendments. The discussion was primarily one of striking the appropriate balance between ensuring that employees who are legitimately injured while at work are provided with sufficient coverage and not placing employers in the position of being forced to pay astronomical workers’ compensation premiums. Representative Lucien A. DiMeo stressed that the amendment “is a balance of equities.” 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6202. It was also noted that the amendment “changes the compensability in some respects similar- to the bill that emerged from the Labor Committee but it goes far beyond those, involving . . . voluntary participation in sporting activities . . . .’’Id., p. 6147.

Representative DiMeo pointed out how this amendment would respond to a situation like the one in McNamara, in which the employee’s injuries were deemed compensable when he was injured while playing Ping-Pong before work on his employer’s premises. Representative DiMeo, presumably referring to McNamara, noted that with this amendment, the legislature was “even controlling that aspect of whether you have come to work and you are engaged in some sports activities. I can recall as Mayor, that we had, in our public works garage, some men brought in a Ping-Pong table. And they would come in a half-hour earlier or so before they had to punch in and no one really commented about it, one way or another and they would play a little Ping-Pong and it seemed pretty harmless for them to amuse themselves. One of them twisted his ankle and we thought, administratively, it was a little unusual that we would have the town to pay for his recreational injury, but we ended up having to pay for it. And we fought it. I thought it was ridiculous, but we did.” Id., pp. 6201-6202. These remarks make clear that the amendment was intended to exclude voluntary participation in sporting activities, regardless of the specific nature of such activities. Coverage does not turn on whether the activity in question was group or solitary in nature. The legislature expressed no intention to preclude coverage for certain types of activities, such as softball games, but to allow coverage for similarly voluntary forms of exercise, such as running, simply because the former happens to take place as part of a group.

We also look to the “commonly approved usage” of “recreational” because the term is not defined in the statute. (Internal quotation marks omitted.) Groton v. Mardie Lane Homes, LLC, 286 Conn. 280, 288, 943 A.2d 449 (2008). “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 656, 931 A.2d 142 (2007). Random House Webster’s Unabridged Dictionary defines “recreation” as “refreshment by means of some pastime, agreeable exercise, or the like. ... [A] pastime, diversion, exercise, or other resource affording relaxation and enjoyment.” Random House Webster’s Unabridged Dictionary (2d Ed. 2001).

On the basis of the legislative history of the statute and the dictionary definition of “recreation,” we conclude that § 31-275 (16) (B) (i) precludes coverage for the plaintiffs injury in this case. The statute was enacted after McNamara and was clearly intended to eliminate coverage under the act for injuries that occurred in a similar manner, i.e., those that occurred while the employee was engaged in an act for his or her relaxation or enjoyment on the employer’s premises, even when there was employer approval or acquiescence to do so. Section 31-275 (16) (B) (i) shifts the focus of the inquiry from employer approval or acquiescence, as in McNamara, to an examination of the purpose of the employee’s actions before the employee’s injury will be compensable. As noted on the floor of the House of Representatives, the act as a whole, and this subdivision in particular, is a difficult, but necessary, balance of equities. In addition, although the statute states that social or recreational activities include, but are not limited to, athletic events, parties and picnics, this illustrative list does not exclude walking or power walking as recreational activities.

Furthermore, the dictionary definition supports excluding coverage for the plaintiffs injury. The definition of “recreation” twice mentions the word “exercise.” The plaintiff was undisputedly engaged in “exercise” when she chose to spend her daily lunch breaks, weather permitting, walking at a rapid pace and churning her arms up and down to increase her heart rate. This exercise was also unquestionably solely for the plaintiffs benefit. The plaintiff testified before the commissioner: “I’m a borderline diabetic, so I walk for my health and to get exercise instead of sitjting] all day. ” She further testified: “I walk for my health because it’s in my family. My mother died and my sister has diabetes. And my doctor recommended that I do exercise.” The plaintiff admitted, and the board found, that her decision to walk during her lunch hour was purely voluntary, and there was no evidence in the record that Pratt & Whitney promoted this activity or encouraged employees to participate. The plaintiff was surely afforded “refreshment” from her daily walks.

A review of the case law from other jurisdictions, while not binding, is also instructive. In Jones v. Trans World Airlines, Inc., 70 S.W.3d 468, 469 (Mo. App. 2001), overruled in part on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003), the employee, who had been walking during his lunch break for eight years on the employer’s premises, tripped and was injured during one of his daily walks. The court found that the employee sustained his injuries while participating in a recreational activity and, therefore, that the injuries were not compensable. Id., 472. Where the plaintiff, a salesperson for an automobile dealership, was injured riding a co-worker’s motorcycle on the sales lot while waiting for customers, the Oregon Supreme Court noted that “there [was] little dispute that, in the context of this case, riding the motorcycle was a ‘recreational activity.’ ” Roberts v. SAIF Corp., 341 Ore. 48, 52, 136 P.3d 1105 (2006) (precluding coverage for injury where statute provided that compensable injury did not include “[i]njury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure”). Other cases have referred to a daily walk during one’s lunch break as “an act of recreational diversion of [one’s] own free choice . . . .” Fireman’s Fund Indemnity Co. v. Industrial Accident Commission, 39 Cal. 2d 529, 535, 247 P.2d 707 (1952).

We are also not persuaded by the plaintiffs argument that it is “unimaginable that the legislature intended to exclude coverage for an activity that benefits one’s health yet maintain coverage for smoking.” The plaintiff is referring to cases such as Puffin v. General Electric Co., 132 Conn. 279, 282, 43 A.2d 746 (1945), in which an employee’s injury was held to be compensable when it occurred while the employee was smoking during a designated rest period. This argument ignores that coverage does not turn on whether the activity is beneficial to one’s health; coverage in such cases turns on whether the activity in question is incidental to one’s employment and has nothing to do with whether the activity is recreational in nature. See id.

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

In this opinion the other judges concurred.

       AIG Claims Service, Inc., the workers’ compensation insurer for Pratt & Whitney, also was named as a defendant.

       The plaintiff was walking on a path along a service roadway used for delivery trucks. There was no sidewalk along the roadway, and the plaintiff testified before the commissioner that she fell after she stepped to the side of the road to distance herself from an oncoming car on the roadway. The plaintiff stated that when she moved to the side, she fell onto gravel, but it is unclear if the roadway was paved.

       Pratt & Whitney’s motion to correct sought to amend the commissioner's findings so as to state: (1) “No evidence was presented that the [plaintiffs] walking on July 8,2005 was of any benefit to Pratt and Whitney or incidental to her employment; the only testimony presented demonstrated that the [plaintiff] walked for personal health reasons and exercise” and (2) “I find that the [plaintiff] did not sustain an injury which arose in the course of her employment since walking on the company grounds during her lunch break for exercise was not incidental to her employment”; (internal quotation marks omitted); and (3) to find that the plaintiff’s injuries were social or recreational in nature.

       General Statutes § 31-275 contains the definitions applicable to the act, and subdivision (16) (B) provides that injuries sustained while engaging in social or recreational activities are not compensable.
      The board did not reach the question of whether the social-recreational exception was applicable, as it found that the plaintiff’s injuries were not incidental to her employment and thus were not compensable.

       General Statutes § 31-301 provides in relevant part: “(a) At any time within twenty days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board ....
      “(b) . . . The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner ....
      “(c) Upon the final determination of the appeal ... the Compensation Review Board shall issue its decision, affirming, modifying or reversing the decision of the commissioner. . . .”
      General Statutes § 31-30lb 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.”

       We note that this is not a circumstance of the board’s overturning the commissioner’s finding that the injury arose out of the plaintiffs employment. The commissioner did not make a specific finding as to whether the plaintiffs injury arose out of her employment, and the board addressed only the issue of whether the plaintiffs injury occurred in the course of her employment and did not discuss whether her injury arose out of her employment. The plaintiff alleges that Pratt & Whitney conceded that the plaintiffs injury arose out of her employment, but Pratt & Whitney disputes this. As noted in footnote 3, one of the proposed findings in Pratt & Whitney’s motion to correct was a finding that the plaintiff did not sustain an injury that “arose in the course of her employment . . . We are unclear if this proposed finding was intended to address the “arose out of’ prong or the “in the course of’ prong.

       The commissioner found that the plaintiff was walking during her lunch break on the grounds of Pratt & Whitney and remained on the grounds at all times. The commissioner also found that the employer was well aware and acquiesced in the fact that many Pratt & Whitney employees walk on the grounds during their lunch breaks.

       Our Supreme Court has previously recognized that an unpaid lunch bréale falls within the “period of employment.” See Mazzone v. Connecticut Transit Co., 240 Conn. 788, 794, 694 A.2d 1230 (1997) (“[wjhere ... a lunchtime injury takes place on the employer’s premises, that injury may be said to have occurred in the course of employment, even though the [lunch] interval is technically outside the regular hours of employment in the sense that the worker receives no pay for that, time and is in no degree under the control of the employer, being free to go where he pleases” [internal quotation marks omitted]).

       We note that this conclusion does not necessarily endorse the commissioner’s finding that “[t]he health of Pratt & Whitney workers was surely enhanced by any type of reasonable physical activity pursued on company grounds during unpaid breaks by its employees.” Such a finding of a benefit to the health of Pratt & Whitney workers is not a necessary prerequisite to finding that the activity was incidental to the plaintiffs employment.

       Neither party contends that the plaintiffs activity was social in nature. Therefore, the case will turn on whether the “recreational” exclusion is applicable.

       The plaintiff, in her reply brief, attempts to analogize her walks to “physical therapy” because she was walking for health reasons. We are not persuaded. Similarly, at oral argument, the plaintiffs attorney asserted that the plaintiff “was walking because her doctor told her to walk.” The plaintiffs subjective motivation behind engaging in an objectively recreational activity is not relevant to this analysis.

       A Missouri statute provides: “Where the employee’s participation in a voluntary recreational activity or program is the proximate cause of the injury, benefits or compensation otherwise payable under this chapter for death or disabilüy shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. . . .” Mo. Rev. Stat. § 287.120.7 (West 2005).