author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. DANIEL MORELLI
    (AC 27022)
    Schaller, McLachlan and Graendel, Js.
    Argued May 21
    officially released August 14, 2007

      Roy S. Ward, for the appellant (defendant).

      Harry D. Weller, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Tiffany M. Lockshier, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

This drunk driving case raises concerns about the administration of standardized field sobriety tests on a person who has just suffered head trauma as a result of a car accident. The defendant, Daniel Morelli, appeals from the judgment of conviction, following a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2003) § 14-227a. The defendant claims that the court improperly determined that there was sufficient competent evidence to support his conviction. We reverse the judgment of the trial court.

The court reasonably could have found the following facts. On the evening of January 21, 2004, at approximately 6 p.m., the defendant was involved in a motor vehicle accident at the intersection of Weston Road and Lyon Plain Road in Westport. The accident occurred when the pickup truck the defendant was driving northbound on Weston Road struck a car that was turning left onto Lyon Plain Road from the southbound side of Weston Road. Charise Abrams, the driver of the car that was struck, testified that she had been at the intersection waiting behind another car to make a left turn. When the car in front of her turned, she observed the traffic light turn yellow. Believing that she had enough time to turn before the light changed to red, Abrams initiated the turn and the defendant’s vehicle struck the front of her car. Abrams testified that the defendant had accelerated rapidly as she initiated the turn. After reviewing what had occurred, the Westport police determined that Abrams and not the defendant was at fault for the accident and issued her a traffic citation for making an improper turn.

The first police officer to arrive on the scene was Westport police Officer George Taylor, who made contact with the defendant and observed that he was bleeding from the nose and mouth. Taylor offered the defendant medical attention, but the defendant declined and requested that the officer check on the occupants of the other car. During his brief interaction with the defendant, Taylor, who had received training as a police officer in detecting drivers under the influence of alcohol, did not observe any indications that the defendant may have been impaired, such as an odor of alcohol, slurred speech or bloodshot eyes.

The second officer to arrive on the scene, T. Amette, also made contact with the defendant. Amette testified that during a conversation with the defendant, he detected a constant odor of alcohol coming from the defendant’s person and noticed that the defendant was having difficulty standing. Amette also noted that the defendant had an obvious facial injury and that his nose was actively bleeding, ostensibly as a result of the collision. Amette’s observations of the defendant were consistent with the testimony of a third officer, Ryan Paulsson, who arrived on the scene and made contact with the defendant shortly thereafter.

At the scene, the defendant admitted to Amette that he had been drinking, but claimed not to be intoxicated. Emergency medical personnel arrived and brought the defendant to the back of an ambulance and offered medical assistance, which he declined. Amette then requested that the defendant perform standardized field sobriety tests, to which the defendant agreed. Amette testified that, consistent with his police training, he administered three standardized field sobriety tests, the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test, while Paulsson observed. These standardized tests were promulgated by the National Highway Traffic Safety Administration to assist law enforcement in determining whether the operator of a motor vehicle is under the influence of alcohol.

According to the testimony of both Amette and Pauls-son, the defendant failed each of the three tests. Specifically, with respect to the horizontal gaze nystagmus test, Amette testified that he is trained to look for six clues indicative of impairment and that, as he administered the test to the defendant, he observed that the defendant exhibited all six clues. With respect to the walk and turn test, both officers testified that they observed the defendant exhibiting seven out of a possible eight clues. With respect to the one leg stand test, Paulsson testified that he observed that the defendant exhibited three out of a possible four clues and Amette testified that he observed all four.

During this process, the officers testified that the defendant was annoyed, argumentative and used profanity. Upon conclusion of the field sobriety tests, Amette informed the defendant that he was under arrest, and the defendant became aggressive, refusing to comply with the officers’ requests that he put his hands behind his back. With the assistance of Paulsson, Amette eventually was able to get the defendant to comply, and the defendant was brought to the police station for booking.

At approximately 7:14 p.m., Amette advised the defendant of his constitutional rights and gave him the opportunity to contact a lawyer, which the defendant declined at that time. Amette then went over the A-44 form with the defendant and gave the defendant the opportunity to submit to a breath test. The defendant declined to submit to the test, indicating that he had suffered a head injury and wanted to go to the hospital. During booking, the defendant also told Amette that he had been drinking earlier in the evening at a bar in Westport and that he had eaten a pound of macaroni earlier in the day.

Upon conclusion of the booking process, the police released the defendant to emergency medical personnel, and he was transported to Norwalk Hospital by ambulance. At the hospital, the defendant was treated by Brian McGovern, an emergency room physician, at approximately 11 p.m. McGovern testified that he treats approximately 4000 patients per year as an emergency room physician. He estimated that upward of 25 percent of emergency room patients are under the influence of alcohol or drugs at the time they are presented to the emergency room and that he has a wealth of experience detecting signs of persons under the influence of alcohol. McGovern testified that when he treated the defendant, the defendant was not intoxicated.

McGovern diagnosed the defendant with head trauma and an acute nasal fracture. McGovern, who was qualified at trial as an expert in the field of emergency medicine, also rendered an expert opinion that the defendant suffered a concussion as a result of the accident. The defendant was prescribed ibuprofen, and McGovern ordered that the defendant be given standard instructions upon discharge relating to head injuries.

In addition to the testimony of Abrams, the Westport police officers and McGovern, the court heard testimony from Joseph Citron, an expert physician called by the defense, who was qualified in the fields of ophthalmology, general medicine and standardized field sobriety tests. Citron testified with regard to the physiological effects of a concussion and head trauma generally, and how those injuries as well as other factors may affect a person’s ability to perform successfully the standardized field sobriety tests. Citron testified that head trauma is the leading cause of nystagmus and that if a person suffered a concussion, it would be impossible to ascertain from the horizontal gaze nystag-mus test whether the presence of nystagmus detected was caused by alcohol or the concussion. Citron further opined that on the basis of his understanding of the defendant’s injury, it was more likely than not that the defendant had in fact suffered a concussion.

The defense also presented testimony from Norwalk police Officer Michael Silva, who testified that he responded to the hospital on the night of the incident, made contact with the defendant and observed the defendant’s facial injuries. Silva testified that, as a police officer, he is trained to detect drivers impaired by alcohol and that he did not detect signs of impairment during his contact with the defendant. Silva, who testified in an off duty capacity, admitted that the defendant is his friend and a former police officer, and that he responded to the hospital after being called by the defendant’s brother, also a Norwalk police officer.

Finally, the defense presented testimony from Martin O’Grady, bar manager at the Black Duck Cafe in West-port, and Scott Sabella, a business associate of the defendant. These witnesses testified that the defendant was at the Black Duck Cafe at approximately 4:30 p.m., until just prior to the accident. Each of these witnesses estimated that the defendant had no more than two drinks at the Black Duck Cafe during that time.

On August 30, 2005, the court rendered judgment finding the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor or drugs. The court’s judgment was rendered on the basis of, inter alia, the defendant’s failure of the standardized field sobriety tests. The court sentenced the defendant on October 7, 2005. This appeal followed.

The dispositive issue on appeal stems from the court’s conclusion that the defendant had not suffered a concussion as a result of the accident. The defendant argues that this improper finding allowed the court to conclude improperly that he failed the standardized field sobriety tests, which was the linchpin factual conclusion made by the court in support of the conviction. Accordingly, the defendant argues that without support for the conclusion that he failed the standardized field sobriety tests, there was insufficient evidence to support his conviction. We agree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we 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. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [fact finder] to conclude that a basic fact or an inferred fact is true, the [fact finder] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

“Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

The defendant was convicted of violating § 14-227a (a), which provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state . . . while under the influence of intoxicating liquor or any drug or both . . . .” Thus, the elements of this offense, which the state must prove beyond a reasonable doubt, are (1) that the defendant operated a motor vehicle at the time and place alleged, (2) that the operation occurred on a public highway of this state and (3) that the defendant was under the influence of intoxicating liquor or any drug or both. With respect to the third element, “[d]riving while under the influence of liquor means, under the law of Connecticut, that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.” (Internal quotation marks omitted.) State v. Windley, 95 Conn. App. 62, 66, 895 A.2d 270, cert. denied, 278 Conn. 924, 901 A.2d 1222 (2006).

The defendant’s principal sufficiency claim, which is predicated on the trial court’s conclusion that he did not suffer a concussion, relates only to the third element of the offense, intoxication. In support of its conclusion that the state had proven beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor, the court stated: “There’s no question that the most poignant evidence of impairment and the influence of alcohol upon the defendant is his failure of the field sobriety tests. The defense has offered testimony and evidence that a person who suffers a head trauma, who has suffered a concussion, is not a good candidate for the field sobriety tests because the results of the test may be by virtue of a concussion or a head trauma rather than the influence of alcohol. The court accepts this testimony.” The court later concluded: “The defendant . . . has offered an alternative conclusion [to explain his inability to perform the field sobriety tests, which is] that the defendant was suffering from a head trauma at the time of the field sobriety tests. However . . . the alternative explanation must be reasonable, that is, based upon reason and the evidence presented. Here, the court would have to engage in conjecture, speculation and guesswork in order to accept or reach this alternative conclusion. The court’s conclusion is that the results of the field sobriety tests are reliable on the issue of impairment due to alcohol, and those tests in conjunction with other evidence adduced at trial support a finding of proof beyond a reasonable doubt that the defendant was operating under the influence of alcohol.”

In reaching this conclusion, the court discussed the testimony of McGovern and his assessment of the defendant. The court stated: “The medical record from Nor-walk Hospital and the testimony of the treating physician indicated one of the possibilities to be considered at the time he was seen at the hospital was that the defendant suffered a concussion. . . . The treating physician could not opine to any degree of medical certainty or probability that the defendant suffered a concussion. He does not recall the defendant, does not recall treating the defendant and testified entirely based upon the notes in the defendant’s medical records. The medical records reflect nowhere that a diagnosis of concussion was made on the evening in question. The discharge instructions do not include instructions consistent with the diagnosis of concussion. . . . While the treating physician testified that the defendant may have had a concussion, his testimony is as to the possibility and not the probability Further, the sole basis for this opinion, in view of the fact that he didn’t recall the defendant or his treatment, was the reference in the medical records that there may have been a loss of consciousness at the scene of the accident. This information is the self report of the defendant and is wholly inconsistent with the evidence as to the defendant’s demeanor and reporting at the scene of the accident. The defendant refused medical treatment at the scene. The defendant denied any injury or impairment to his ability to perform field sobriety tests. The defendant advised no one that he may have lost consciousness. The defendant was able to retrieve his license, registration and insurance information without incident. This last piece of evidence is significant because it demonstrates that one of the common indicators of a concussion, that is, altered mentation and orientation to one’s circumstances, was not present at the scene immediately following the accident and prior to the administration of the field sobriety tests.” (Emphasis added.)

Upon review of the record, we conclude that the court’s finding that the treating physician, McGovern, did not opine with any degree of medical probability that the defendant had suffered a concussion as a result of the accident was clearly erroneous. McGovern rendered an expert opinion, unequivocally, that the defendant had suffered a concussion on the basis of his common practice treating more than 4000 patients per year in the emergency room, his review of the medical records and the nature of the defendant’s injuries, namely, an acute nasal fracture and head trauma caused by a motor vehicle collision. Despite that McGovern had no independent recollection of treating the defendant, that the diagnosis did not appear in the medical records and that it was made, in part, on the basis of the defendant’s self reporting, McGovern remained firm in rendering his expert medical opinion that the defendant had suffered a concussion. See footnote 12.

The state argues that the court was not bound by this expert opinion and that the court is privileged to adopt whatever testimony it reasonably believes to be credible. See State v. George J., 280 Conn. 551, 583, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007); State v. Joly, 219 Conn. 234, 243, 593 A.2d 96 (1991). Although the court certainly was free to discredit the testimony of this expert, it did not do so. Rather, the court made a factual determination that McGovern did not opine with certainty or probability that the defendant had suffered a concussion. It is this determination that is wholly unsupported by McGovern’s testimony.

Moreover, in addition to McGovern’s expert opinion, the record is replete with evidence that it was reasonably probable that the defendant suffered a concussion as a result of the accident. As the court noted, there was undisputed testimony that the defendant suffered an acute nasal fracture as a result of the accident, that he was bleeding from his nose throughout the arrest and booking process, and that he was treated for a head injury on the evening in question at Norwalk Hospital. The court heard testimony from a second expert physician on the issue of the defendant’s concussion. Citron opined that on the basis of his understanding of the defendant’s injury, it was more likely than not that the defendant had in fact suffered a concussion, and the court did not specifically discredit this testimony. For these reasons, we conclude that the court’s finding that no reasonable probability existed that the defendant suffered a concussion was clearly erroneous.

In determining the impact of this improper conclusion in assessing the reasonableness of the court’s view of the evidence supporting its judgment, we agree with the court’s acceptance of the expert testimony that evidence of a concussion would affect the reliability of the standardized field sobriety tests. We further agree with the court’s finding that the most poignant evidence of the defendant’s impairment in this case would be his failure of the field sobriety tests to the extent that the failure could be attributed to impairment by alcohol. Even when construing the evidence in the light most favorable to sustaining the judgment, we conclude that no reasonable fact finder could discern beyond a reasonable doubt that the defendant’s failure of the field sobriety tests resulted by virtue of his being under the influence of alcohol rather than as a result of a concussion. The only additional evidence of the defendant’s impairment on which the court relied was evidence that the defendant accelerated his vehicle prior to the accident, that he had had at least two alcoholic drinks before the accident, that he was argumentative and verbally abusive to the officers and refused to submit to a breath test. Without the ability to draw a conclusion beyond a reasonable doubt from the evidence presented at trial that the defendant failed the standardized field sobriety tests due to the consumption of alcohol, we conclude that there is no reasonable view of the evidence that supports the court’s judgment of guilty.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.

In this opinion the other judges concurred.

       The defendant received a total effective sentence of six months incarceration, execution suspended, eighteen months probation with added conditions and a $1000 fine plus court costs. The defendant was found not guilty of interfering with an officer in violation of General Statutes § 53a-167&

       The citation ultimately was dismissed.

       It was later determined that the defendant suffered head trauma and an acute nasal fracture.

       The full name of Arnette is not apparent from the record.

       Amette indicated initially that the defendant’s eyes were glassy and red, but on cross-examination, he admitted that he had made no such indications in his report and that therefore it would be fair to assume that the defendant’s eyes were neither glassy nor red.

       “Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball.” (Internal quotation marks omitted.) State v. Balbi, 89 Conn. App. 567, 570-71, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005).

       Arnette testified that he has administered the walk and turn test many times and that none of the people he tested had ever passed.

       Subsequently during the booking process, the defendant requested that the officers allow him access to his cellular telephone so that he might retrieve his lawyer’s telephone number. The police did not permit him to do so at that time.

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” Boy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001).

       The court, pursuant to Practice Book § 61-13, ordered the sentence stayed pending this appeal.

       In addition to this principal argument, the defendant argues within his sufficiency of the evidence claim that the court improperly (1) used his postarrest silence as consciousness of guilt evidence, (2) admitted the results of the standardized field sobriety tests and (3) did not acquit him on the basis of an equal inference of innocence. Because we conclude that the principal claim is dispositive, we need not address these remaining arguments.

       During the redirect examination of McGovern, the following was elicited: “[Defense Counsel]: . . . [DJespite all the questions asked by [the prosecutor] on cross-examination, do you still hold the opinion that [the defendant] had a concussion on January 21, 2004?
      “[The Witness]: Yes.”

       We note that the Supreme Court in both George J. and Joly, in addressing whether a witness had been hypnotized, employed the abuse of discretion standard. The relevant question in those cases, however, involved the admissibility of the evidence and not an assessment of the weight that the fact finder ascribed to the evidence. See also State v. Calabrese, supra, 279 Conn. 401-402 (“[c]laims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error” [internal quotation marks omitted]).

       In addition to Citron’s medical conclusion that a concussion would render the standardized field sobriety tests unreliable, Citron also testified that the versions of the National Highway Traffic Safety Administration training manual, which were in effect at the time of the accident, specifically advised police officers not to perform the field sobriety tests on a suspect if there is evidence of recent head trauma, although Citron conceded that this advisement did not appear in the most recent manual. Additionally, Paulsson testified that he would not perform standardized field sobriety tests on a suspect who suffered a concussion, and both Amette and Taylor testified that the test results could be affected by a concussion.

       The state has not argued that absent evidence of the defendant’s failure of the standardized field sobriety tests due to impairment by alcohol, the evidence nonetheless was sufficient to support the conviction.


source: Caselaw Access Project

author: FLYNN, C. J. BERDON, J.,

license: Public Domain

text:
    JEANETTE POULIN v. COMMISSIONER OF CORRECTION
    (AC 27065)
    Flynn, C. J., and DiPentima and Berdon, Js.

      Argued February 14
    officially released August 14, 2007

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Jeanette Poulin, appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that she failed to prove that she had received ineffective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. On December 22, 2000, the petitioner was charged with the murder of her six week old son. The charge of murder arose out of an incident that took place more than fourteen years earlier, on August 31, 1986. Evidence presented at the habeas hearing revealed that the victim was bom in July, 1986, and found dead in the petitioner’s apartment on August 31,1986. The Bristol police department began an investigation into the death. At this time, the police were denied access to relevant documentation contained within the records of the department of children and youth services, now the department of children and families (department). The chief medical examiner performed the victim’s autopsy and discovered a blue cloth fiber in the victim’s mouth. The autopsy revealed that the victim suffered multiple pete-chial hemorrhages in the epicardium, surrounding the heart, and in the visceral pleurae, surrounding the lungs. At the time, the chief medical examiner attributed the victim’s death to sudden infant death syndrome. With the release of this finding, the police suspended their investigation.

In March, 1996, the Bristol police department was able to get access to the department’s records. The records revealed that the victim’s older sister had been removed from the petitioner’s care by the department on the basis of allegations of abuse and neglect, which included stuffing a washcloth into her daughter’s mouth to quiet her. Afterward, the chief medical examiner reexamined his autopsy report and listed the victim’s cause of death as “undetermined.” Additionally, the chief medical examiner found that the circumstances surrounding the victim’s death were consistent with either manual suffocation or sudden infant death syndrome.

On December 22, 2000, more than fourteen years after the August 31, 1986 incident had taken place, the petitioner was charged with murder in violation of General Statutes § 53a-54a. That crime carries a maximum sentence of sixty years imprisonment and requires that a minimum sentence of twenty-five years imprisonment be imposed. General Statutes § 53a-35a (2); General Statutes § 53a-35b. The crime of murder is not barred by any statute of limitations. Sometime thereafter, the prosecution offered the petitioner a plea bargain whereby she would plead guilty to one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The prosecution offered a maximum sentence of twenty years, with the petitioner retaining the right to argue for a lesser sentence, not to fall below twelve years. The petitioner accepted the offer and entered a guilty plea pursuant to the Alford doctrine. By entering a plea of guilty under a plea agreement reached with the state, the petitioner foreclosed any conviction for murder with its twenty-five year minimum and sixty year maximum sentence. The trial court imposed a total effective sentence of fifteen years imprisonment.

The petitioner thereafter filed an amended petition for a writ of habeas corpus alleging ineffective assistance of her trial counsel, Kenneth Simon. The habeas court rejected the petitioner’s claim of ineffective assistance of counsel but later granted the petition for certification to appeal to this court. This appeal followed. Additional facts will be set forth as necessary.

The petitioner claims that the habeas court improperly concluded that she was not deprived of the effective assistance of counsel. Specifically, the petitioner claims that her guilty plea to the charge of manslaughter in the first degree, due to counsel’s ineffectiveness, was not voluntary, knowing and intelligent and was made absent sufficient awareness of the relevant circumstances and likely consequences. The petitioner argues that Simon’s advice to plead guilty was based on his erroneous understanding of the law. We disagree.

We first set forth our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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.” (Internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 720, 789 A.2d 1046 (2002).

“Because a defendant often relies heavily on counsel’s independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction. . . .

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified [the] prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, supra, 67 Conn. App. 721. “To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, [supra, 59]. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, [supra, 693-94] . . . .” (Citation omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, supra, 722.

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance . . . .” (Citations omitted; internal quotation marks omitted.) Id., 721-22. “Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

We conclude that the petitioner has failed to satisfy the first prong of the Strickland test for establishing ineffective assistance of counsel. During the petitioner’s habeas proceeding, Simon testified that in preparing for trial, he had reviewed the evidence, interviewed potential witnesses, retained a medical expert, conducted research and had the petitioner psychologically evaluated. He testified that he had informed the petitioner that he thought it was not likely that she would be convicted of murder at trial. He further testified that after conducting research on the statute of limitations issue, he had determined that if the petitioner had initially been charged solely with manslaughter, the statute of limitations would bar prosecution. He also noted, however, that his research had indicated that in Connecticut the issue was open as to whether the statute of limitations would operate to time bar the manslaughter charge as a lesser offense included within the crime of murder. He testified that he had discussed with the petitioner all the possible scenarios that might occur, which included the possibility that the prosecution might add, as a lesser included offense, a charge of manslaughter in the first degree, and the relative likelihood of conviction on either charge, and the possible penalties the petitioner had faced.

The record indicates that the petitioner’s counsel thoroughly investigated the issues and discussed them with her. The petitioner now challenges her counsel’s belief that the statute of limitations defense was an undecided issue in Connecticut and that such a belief constitutes ineffective assistance of counsel. “The question is not whether [defense] counsel’s interpretation was correct, but only whether it was one a reasonably competent attorney could have made.” Rouillard v. Commissioner of Correction, 35 Conn. App. 754, 761, 646 A.2d 948, cert. denied, 231 Conn. 945, 653 A.2d 827 (1994). “Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist.” Baillargeon v. Commissioner of Correction, supra, 67 Conn. App. 722. Simon testified that after doing a large amount of research, he had believed that the statute of limitations was a legitimate defense against a charge of manslaughter. He further testified that he wanted to try the case but that he could not guarantee the petitioner that she could not be convicted of manslaughter because there was no case law specifically on point in Connecticut. Because of that lack of appellate authority, Simon’s advice that the issue is unsettled was an interpretation that a reasonably competent attorney could have made. It was possible that the trial court could have determined the issue in a way that was unfavorable to the petitioner, and the precise issue has never been decided on appeal by any Connecticut appellate court.

The petitioner primarily relies on State v. Littlejohn, 199 Conn. 631, 649, 508 A.2d 1376 (1986), in support of her argument that Simon’s performance was deficient because, in her view, contrary to the habeas court’s finding, the statute of limitations issue in this case is not unsettled. Our Supreme Court has stated several times that the statute of limitations is an affirmative defense and the burden is on the defendant to prove the elements of the defense by a preponderance of the evidence. See, e.g., State v. Figueroa, 235 Conn. 145, 177-78, 665 A.2d 63 (1995). In Littlejohn, our Supreme Court made clear that the defense of the statute of limitations could be waived by a defendant who sought to plead guilty to a lesser offense that was barred by the statute of limitations. State v. Littlejohn, supra, 639-40. Littlejohn, however, is devoid of any holding concerning whether an offense, which if brought standing alone would be time barred, would be defeated by a statute of limitations defense if charged as a lesser offense included within a greater offense. The petitioner does not cite any case law demonstrating that this is a settled area of the law, and we are unable to find any.

Consistent with Littlejohn, the petitioner had the right to waive the affirmative defense of the statute of limitations and to accept the plea agreement for the lesser included offense of manslaughter. Simon had assessed the merits of the prosecution’s case and had discussed with the petitioner all the possible scenarios that might have occurred. The evidence against her included the autopsy report, which revealed that the victim had a blue cloth fiber in his mouth and that the manner of death was consistent with either sudden infant death syndrome or manual suffocation. Reports from the department revealed that the petitioner had stuffed washcloths in the mouth of the victim’s sister to quiet her cries. The habeas court found that the petitioner had accepted the plea bargain because the evidence against her had been damaging and she had been afraid of being incarcerated for sixty years if convicted of murder.

We additionally conclude that the petitioner has failed to demonstrate that, but for Simon’s allegedly deficient performance, she would not have pleaded guilty, but instead would have proceeded to trial. The petitioner claims that no reasonable jury could have concluded that she acted with the requisite specific intent to murder the victim. “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged.” (Internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994). “Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Citations omitted; internal quotation marks omitted.) Id., 63-64.

By pleading guilty, the petitioner obviated the need for the state to produce any evidence at trial. We therefore concentrate our attention not on what evidence was not produced, but on what factual allegations were in the arrest warrant application and the evidence from the petitioner at the habeas hearing. The petitioner admitted at the habeas hearing that her trial attorney had reviewed the state’s evidence with her and that ultimately, “because of the evidence that he had reviewed,” she decided to plead guilty. As noted by the habeas court, the petitioner admitted in her testimony that it was her decision to plead guilty and that she took the plea because she was afraid of damaging evidence being presented before the jury, which might result in her conviction of the originally charged crime of murder, and was afraid of being incarcerated for sixty years if convicted.

The allegations contained within the arrest warrant affidavit and the probable cause hearing testimony indicate that the petitioner had abused the victim’s older sister by stuffing a washcloth into her mouth to quiet her and had threatened to kill that daughter. The petitioner had repeatedly brought the victim to a hospital, and each time the victim had seemed healthy. The victim’s pediatrician believed that the petitioner had taken the victim to the hospital because she had been unable to cope with the pressures of caring for him. The petitioner had stated to a member of the hospital’s social services department that the victim would still be alive if the hospital had kept the victim an additional night, as opposed to having released him on August 30, 1986, the day before his death. After the Bristol police department had been able to get access to the department’s records concerning the victim’s older sister, the chief medical examiner reexamined his autopsy report and found that the circumstances were consistent with either manual suffocation or sudden infant death syndrome. Furthermore, the victim’s pediatrician believed that the death was suspicious and testified at the probable cause hearing that on the basis of a review of all the information, he believed that the victim’s death was a homicide and that something had been placed in the victim’s mouth to suffocate him. Given the evidence against the petitioner and the finding of the habeas court that the petitioner accepted the plea bargain because the evidence against her was damaging and she was afraid of being incarcerated for sixty years if convicted of murder, the petitioner’s claim fails to meet the prejudice prong set forth in Strickland v. Washington, supra, 466 U.S. 687, as applied in Hill v. Lockhart, supra, 474 U.S. 52.

We conclude that the court properly denied the petitioner’s amended habeas petition for failure to establish the claim of ineffective assistance of counsel.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

BERDON, J.,

dissenting. I respectfully dissent. I would grant the writ of habeas corpus and order a new trial for the petitioner, Jeanette Poulin, because she did not have effective assistance of trial counsel as guaranteed by the federal and state constitutions. This resulted in her pleading guilty to the charge of manslaughter of her infant child, which charge was barred by the statute of limitations.

Fourteen years after the death of her infant son, the petitioner was charged with the murder of the child, a crime for which there is no statute of limitations. There was no evidence that the petitioner intentionally caused the death of her infant son. Indeed, even the trial attorney for the petitioner, during the habeas hearing, conceded that proof of intentional murder was unlikely.

Even if it was proven that the petitioner had caused the child’s death by placing a cloth in the child’s mouth to quiet him (the only proof of which was a blue cloth fiber found in the child’s mouth), as she was accused of doing to another child who was removed from her care, that does not establish the intent necessary to prove murder. See State v. Robertson, 254 Conn. 739, 783, 760 A.2d 82 (2000) (to act intentionally as required for murder conviction, defendant must have had conscious objective to cause victim’s death). The pediatrician’s suspicion or belief that the child suffocated also does not establish the necessary intent.

Notwithstanding the claims of the majority, there was not a scintilla of evidence that would support a charge of intentional murder. The majority, for support, focuses on the “factual allegations ... in the arrest warrant application and the evidence from the petitioner at the habeas hearing.” The simple answer to the majority’s reliance on the arrest warrant is to read the thirty-three pages of the arrest warrant application. There is not a single allegation or even collective allegations in the application that would support probable cause for intentional murder. As to the majority’s reb-anee on the petitioner’s testimony in the habeas hearing admitting that she had reviewed the state’s evidence with her attorney, the simple answer is that she did not have effective assistance of counsel. This, coupled with the fact that she was a person with mental problems and low intelligence who was under the care of a psychiatrist, led her to believe, contrary to the evidence, that the state had a case for intentional murder.

Given the totality of the circumstances, it is not conceivable that the jury would return a verdict of guilty of intentional murder in this case, and, if such a verdict had been returned, it would not have been sustained on appeal. There may have been sufficient evidence to convict the petitioner of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) (“under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”) or manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) (“recklessly causes the death of another person”), but the statute of limitations would be a complete defense to these crimes.

The trial attorney’s concern was that although the statute of limitations applied to manslaughter, he was not certain whether it could be a defense to manslaughter as a lesser offense included within murder, the offense with which the petitioner originally had been charged. The trial attorney testified: “I don’t believe Connecticut has decided that specific issue.” Case law from Connecticut was not necessary to guide the trial attorney on this issue. Common sense would dictate that if the statute of limitations is a defense to a crime, it would also be a defense to that particular crime as a lesser included offense. See, e.g., Askins v. United States, 251 F.2d 909, 912 (D.C. Cir. 1958); Padie v. State, 557 P.2d 1138, 1140 (Alaska 1976); People v. Picetti, 124 Cal. 361, 362, 57 P. 156 (1899), People v. Di Pasquale, 161 App. Div. 196, 198, 146 N.Y.S. 523 (1914); see generally annot., 47 A.L.R.2d 887 (1956). An attorney of reasonable competence would have come to this conclusion. The majority justifies its position by stating that it is possible that the trial court could have determined the issue in a way that was unfavorable to the petitioner; however, we have appellate courts to assure that such errors are corrected.

The trial attorney never advised the petitioner of this common sense conclusion that he should have made as an attorney. Instead, he advised the petitioner to plead guilty to manslaughter and, in effect, to waive the statute of limitations. Simply put, the trial attorney’s performance was deficient.

Nevertheless, even if I agreed with the majority, I would grant the petition for habeas corpus and order a new trial for another reason. Although the majority does not reach the issue because it was not raised before the habeas court, the canvass of the petitioner as to her guilty plea did not comport with due process, and trial counsel’s failure to object denied her effective assistance of counsel. We have the authority to address the issue even though it was not preserved. Practice Book § 60-5 provides in relevant part: “The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court. ...” Furthermore, the rule must be interpreted liberally to “facilitate business and advance justice . . . .” Practice Book § 60-1.

In this case, we should do so for two other reasons. The habeas attorney on appeal addressed the issue, and counsel for the respondent, the commissioner of correction, although objecting because it was not raised before the habeas court, addressed the substance of the issue. Second, if we do not address this issue, it will be the subject of another petition for ineffective assistance of habeas counsel. See Lozada v. Warden, 223 Conn. 834, 844-45, 613 A.2d 818 (1992). Simply put, it makes sense to address the issue at this time.

Like the waiver of other statutory rights, “[a]ny waiver of the statute [of limitations] must, of coruse, be voluntary and intelligent and a waiver presents a question of fact in each case.” State v. Littlejohn, 199 Conn. 631, 641, 508 A.2d 1376 (1986); see also United States v. Wild, 551 F.2d 418, 424-25 (D.C. Cir.), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977). During the plea proceeding, the only statement by the trial judge that could possibly be construed as obtaining the petitioner’s consent to a waiver of the statute of limitations to the charge of manslaughter was the following: “At the time of trial, you would also [have] an opportunity to put on a defense to these charges. Again, there will be no defense because there will be no trial. Do you understand that?” The petitioner expressly replied in the affirmative. Clearly, the foregoing is not sufficient because it did not elicit from the petitioner a knowing, voluntary and intelligent waiver of the statute of limitations defense to manslaughter. See State v. Littlejohn, supra, 638-39.

In sum, I would conclude that the petitioner has shown that, but for the ineffective assistance of counsel, she would not have pleaded guilty to manslaughter and would have gone to trial. See Copas v. Commissioner of Correction, 234 Conn. 139, 157, 662 A.2d 718 (1995). I would grant the petition for a writ of habeas corpus, reverse the conviction of manslaughter and order a new trial for the petitioner.

Accordingly, I dissent.

       The petitioner also claims for the first time on appeal that her conviction was illegal because the court had not canvassed her on the waiver of the statute of limitations and that counsel had been ineffective in not objecting and assuring that a proper waiver had been made. Nothwithstanding the issue of whether any of these claims are more properly raised on direct appeal, the petitioner cannot raise an entirely new ground for habeas relief for the first time on appeal. Because the petitioner never distinctly raised this claim to the habeas court, and, therefore, the court did not address it, we decline to afford it review. See Kelley v. Commissioner of Correction, 90 Conn. App. 329, 335, 876 A.2d 600 (“[tjhis court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim” [internal quotation marks omitted]), cert. denied, 276 Conn. 909, 886 A.2d 423 (2005).

       The state claims in its brief that the ten year delay in getting the records was the result of statutory constrictions.

       Pursuant to General Statutes § 53a-35a (5), manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) carries a maximum penalty of twenty years.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Stevens, 278 Conn. 1, 3 n.2, 895 A.2d 771 (2006).

       The first issue in the petitioner’s statement of issues is “whether the habeas court abused its discretion in denying the petitioner’s certification to appeal.” However, despite the petitioner’s contrary claim, the habeas court granted certification to appeal and, therefore, could not be held to have abused its discretion by a purported denial of something it actually granted. We do not further address this issue because the habeas court granted certification to appeal.

       The petitioner had been assessed as having low intelligence but also as being competent.

       General Statutes § 54-193 provides in relevant part: “(a) There shall be no limitation of time within which a person may be prosecuted for a capital felony, a class A felony or a violation of section 53a-54d or 53a-169.
      “(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, except within one year next after the offense has been committed. . . .”
      Accordingly, there was no time period within which the state’s charge of murder against the petitioner had to be prosecuted, but a charge of manslaughter in violation of General Statutes § 53a-55 (a) (3) was governed by a five year statute of limitations, unless our highest court were to decide that this does not apply to lesser included offenses in cases where the defendant proceeds to trial.

       The petitioner also cites several other cases as authority. See State v. Ali, 233 Conn. 403, 660 A.2d 337 (1995) (whether failure to instruct jury as to affirmative defense of statute of limitations improper); State v. Figueroa, 235 Conn. 145, 665 A.2d 63 (1995) (whether trial court properly denied defendant’s motion to dismiss charges against him on grounds that service of process was unreasonably delayed and state failed to prosecute within statute of limitations); State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987) (whether issuance of arrest warrant within period oflimitation tolled statute); State v. Harrison, 34 Conn. App. 473, 642 A.2d 36 (whether trial court improperly failed to dismiss certain count in information because prosecution barred by statute of limitations), cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); State v. Parsons, 28 Conn. App. 91, 612 A.2d 73 (same), cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). However, a careful reading of these cases reveals that none concerns whether the trier of fact could consider lesser included offenses of a more serious crime charged where 1he statute of limitations had not run against the more serious crime but had run against the lesser included offense. We also note, specifically, that State v. Aloi, 86 Conn. App. 363, 376, 861 A.2d 1180 (2004), rev’d on other grounds, 280 Conn. 824, 911 A.2d 1086 (2007), and State v. Cooke, 42 Conn. App. 790, 802 n.9, 682 A.2d 513 (1996), contain an issue similar to the one at hand, but in both cases we, for various reasons, declined to review the claim.

       refrain from reprinting the extensive arrest warrant here because it would be an unnecessary waste of paper; however, my thorough review of the warrant did not reveal any allegations that would support probable cause for intentional murder.

       If this was not the law, the state could always avoid the statute of limitations as to manslaughter by charging murder and then seeking manslaughter as a lesser included offense.

       The special public defender who brought and tried the habeas petition before the habeas court is not the same attorney who represents the petitioner on this appeal.

       Whether a waiver of a statute of limitations defense to a crime must be in writing, as the petitioner argues, need not be decided.


author: PETERS, J.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY ET AL. v. ACE AMERICAN REINSURANCE COMPANY ET AL.
    (AC 25661)
    DiPentima, Lavine and Peters, Js.

      Argued May 30
    officially released August 14, 2007

      Jonathan M. Freiman, with whom were Jeffrey R. Bobbin and, on the brief, Seth L. Huttner, James I.

      Rubin, pro hac vice, and Robert N. Hermes, pro hac vice, for the appellants (plaintiffs).

      James F. Sullivan, with whom were Jack G. Steigelf-est and, on the brief, Dale T. Miller, pro hac vice, for the appellees (defendant underwriters of Lloyd’s of London et al.).

      Richard Blumenthal, attorney general, and Rupal Shah Palanki, assistant attorney general, filed a brief for Susan F. Cogswell, insurance commissioner of the state of Connecticut, as amicus curiae.
   Opinion

PETERS, J.

General Statutes § 38a-27 (a) prohibits an unauthorized insurer from filing any pleading in an action instituted against it by “service made in accordance with the provisions of section 38a-25, section 38a-26 or section 38a-273” without (1) posting prepleading security in an amount sufficient to secure the payment of any final judgment which may be rendered against it or (2) “procur[ing] proper authorization to do an insurance business in this state.” The principal issue in this appeal is an issue of statutory construction about statutorily authorized methods of service of process to obtain access to prepleading security. The trial court held that the statutory reference to “service made in accordance with the provisions of section 38a-25” requires service to be made on the insurance commissioner or the secretary of the state and precludes service made on the unauthorized insurers’ contractually designated agents for service of process. Because we are persuaded that this holding assigns insufficient weight to General Statutes § 38a-25 (e), which authorizes service of process “in any other manner provided by law,” we disagree with the trial court’s judgment in favor of the defendant insurers. We are persuaded, however, that on remand, for constitutional reasons, the defendant insurers are entitled to a hearing about the amount of prepleading security that they must provide. We reverse the judgment of the trial court and remand the case for further proceedings.

On April 1,2004, the plaintiffs, Hartford Accident and Indemnity Company and thirteen of its affiliates, filed an amended fifty-seven count complaint seeking damages from the defendants, Ace American Reinsurance Company and various other reinsurance companies, for alleged breach of numerous reinsurance contracts. In accordance with the terms of the reinsurance contracts, some of the defendants were served with process through service on identified agents in New York designated for that purpose.

On May 4, 2004, the defendants filed an answer and eighteen special defenses. In response, on May 29,2004, the plaintiffs filed a motion pursuant to § 38a-27 for an order either to compel the posting of prepleading security or to strike the answer and special defenses of the defendants. In their opposition to this motion filed on June 25, 2004, the defendants who are involved in this appeal argued that the plaintiffs’ motions should be denied because service was not made on the defendants through the insurance commissioner as required by §§ 38a-27 and 38a-25.

On July 19, 2004, the court heard arguments from both parties and issued an oral decision denying the plaintiffs’ motion. In those arguments, the parties disagreed about whether service on the defendants’ contractual agent was service “made in accordance with the provisions of section 38a-25” and therefore triggering prepleading security under § 38a-27. In particular the court was required to interpret § 38a-25 (e), which provides that “[t]he right to effect service of process as provided under this section does not limit the right to serve legal process in any other manner provided by law,” and to decide whether that subsection permitted the plaintiffs to serve the defendants’ contractual agent for service for purposes of § 38a-27.

The court determined that § 38a-25 (e) did not allow the plaintiffs to serve the defendants through a contractual agent and still to obtain prepleading security. In denying the motion for prepleading security, the court refused to “find that sections like § 38a-25 (e) [were] something that addresse[d] the method or manner of service, which is clearly what § 38a-27 (a) refers to in saying, ‘service made in accordance with the provisions of § 38a-25.’ ” Instead, the court explained that “§ 38a-25 (e) [was] a rule of construction that help[ed] govern . . . the other provisions of § 38a-25, but not a rule that creates or defines a manner or method of making service. . . . [0]ur statutes commonly include these sort of catchall provisions in service statutes, and . . . [it did not seem likely] that the purpose of including § 38a-25 (e) was to make the security statute applicable in a case involving reinsurance . . . but, rather, that is just the normal type of provision that our service statutes normally . . . use.”

On July 26, 2004, the plaintiffs appealed from the decision of the trial court to this court. On October 27, 2004, this court dismissed the appeal, without opinion, in response to the defendants’ motion to dismiss for lack of a final judgment. After granting the plaintiffs’ petition for certification to appeal, Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 272 Conn. 910, 863 A.2d 701 (2004), our Supreme Court reversed the dismissal and remanded the case to this court to consider the merits of the plaintiffs’ appeal. Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 238, 901 A.2d 1164 (2006).

On appeal, the plaintiffs claim that the court improperly interpreted the language of the interconnected provisions of § § 38a-27 and 38a-25 and that they are entitled either to prepleading security or to a default judgment. The defendants, conversely, claim that the court properly construed § 38a-25 (e). In the alternative, they also claim that the plaintiffs are not entitled to invoke § 38a-27 because, as “industrial insureds,” they have no right to prepleading security. Finally, the defendants also claim that, if we disagree with their statutory arguments, they are entitled, on remand, to a hearing prior to the court’s determination of the amount of prepleading security required to be posted. We agree with the plaintiffs as a matter of statutory interpretation, but agree with the defendants that they are entitled to a hearing on the amount of security that § 38a-27 requires them to post.

I

The plaintiffs’ only affirmative claim is that the court improperly interpreted § 38a-27 as requiring that service be made on the commissioner of insurance, pursuant to the substituted service provisions of § 38a-25, in order to obtain prepleading security. The plaintiffs argue that the expansive nature of § 38a-25 (e), which provides that “[t]he right to effect service of process as provided under this section does not limit the right to serve legal process in any other manner provided by law,” permitted them to serve the defendants “in accordance with the provisions of § 38a-25,” as required by § 38a-27, by serving the defendants’ contractual agent for service of process. The defendants, on the other hand, argue that, because they were not served by substituted service via the insurance commissioner, the plaintiffs could not obtain prepleading security pursuant to the provisions of § 38a-27. We agree with the plaintiffs and reverse the decision of the trial court.

Our standard of review for issues of statutory interpretation is well settled. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

“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.” (Citations omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007).

We begin our construction of § 38a-27 by examining the language of the statute. Section 38a-27 provides in relevant part that “[b]efore any unauthorized person or insurer files or causes to be filed any pleading in any court action or proceeding or in any administrative proceeding before the commissioner instituted against the person or insurer by service made in accordance with the provisions of section 38a-25, section 38a-26 or section 38a-273, the person or insurer shall either: (1) [provide prepleading security] or (2) procure proper authorization to do an insurance business in this state.” The plaintiffs claim that they are entitled to prepleading security because the service made on the defendants’ contractual agent for service of process conforms to the requirements of § 38a-25.

On its face, § 38a-25 describes the authorized method of service of process on unauthorized insurers in an open ended fashion. It is true, as the defendants note and the court emphasized, that § 38a-25 (a) (7) provides that the insurance commissioner shall serve as an agent for service for unauthorized insurers. It is, however, equally true, as the plaintiffs observe, that § 38a-25 (e) provides that “[t]he right to effect service of process as provided under this section does not limit the right to serve legal process in any other manner provided by law.” Standing alone, § 38a-25 cannot be read to exclude service on a designated agent without making subsection (e) surplusage.

The difficulty with this straightforward reading is that § 38a-25 must be read in conjunction with the provision in § 38a-27, the prepleading security statute, that expressly authorizes service not only in accordance with the provisions of § 38a-25 but also in accordance with the provisions of General Statutes §§ 38a-26 or 38a-273. If § 38a-25 (e) already permits service in accordance with these latter provisions, then arguably the cross reference in § 38a-27 to §§ 38a-26 and 38a-273 also is surplusage.

The defendants argue that the court properly identified the way out of this statutory maze by limiting § 38a-25 (e) to cases that do not involve access to prepleading security. Their argument finds support in the “well-settled principle of [statutory] construction that specific terms covering [a] given subject matter will prevail over general language of . . . another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) Board of Education v. State Board of Education, 278 Conn. 326, 338, 898 A.2d 170 (2006). The defendants ask us to follow this principle of statutory construction and to conclude that the specific terms of § 38a-27 requiring service made under one of the three named statutes supersedes any broader method of service provided within §§ 38a-25, 38a-26 and 38a-273. We do not, however, agree that this principle of statutory construction is controlling in this case because, as a remedial statute, § 38a-27 “should be liberally construed in favor of the class sought to be benefited . . . .” (Internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 441 n.10, 892 A.2d 938 (2006).

Like Connecticut’s other remedial statutes, § 38a-27 provides a remedy to a class of individuals that was not available before its enactment. See Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 245, 902 A.2d 620 (2006) (workers’ compensation act); Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005) (Connecticut Unfair Trade Practices Act); Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 373, 623 A.2d 483 (1993) (mechanic’s lien statute). As a derivative of the National Association of Insurance Commissioners Model Laws, Regulations and Guidelines, the purpose of §§ 38a-25, 38a-26, 38a-27 and 38a-273 is “to subject certain insurers to the jurisdiction of the courts of this state in suits by or on behalf of insureds or beneficiaries under insurance contracts.” Id., § 850-1. These provisions were enacted in response to the fact that “many residents . . . hold policies of insurance issued or delivered in this state by insurers while not authorized to do business in this state, thus presenting to these residents the often insuperable obstacle of resorting to distant forums for the purpose of asserting legal rights under these policies.” Id.

As remedial measures, §§ 38a-25, 38a-26, 38a-27 and 38a-273 must be interpreted liberally to ensure Connecticut’s insureds’ access to the remedy of prepleading security. In light of the repeated references in various subsections of § 38a-27 to other sections of title 38a, we are not persuaded that the statute was meant to provide the remedy of prepleading security only if an unauthorized insurer is served through substituted service. To the contrary, we think that it would be illogical for the legislature to have intended to debar a plaintiff from this remedy because it has used a form of service that was authorized in the defendants’ contracts and was more likely than service on the insurance commissioner to reach the defendants expeditiously. Rather than interpret the statute in this manner, “[w]e consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation.” (Internal quotation marks omitted.) Wiseman v. Armstrong, 269 Conn. 802, 813, 850 A.2d 114 (2004). As § 38a-27 (b) illustrates, the legislature simply chose to couple the access of domestic plaintiffs to prepleading security with permission for the plaintiffs to utilize various forms of notice to unauthorized foreign defendants.

Furthermore, in construing § 38a-27 to include the incorporation of various means by which service can be made, we are in accord with other jurisdictions’ interpretation of similar statutes. See T.P.K. Construction Corp. v. Southern American Ins. Co., 739 F. Sup. 213, 215 (S.D.N.Y. 1990) (“[t]here is no language in the [New York substituted service statute] to support such a distinction between the two forms of service”); International Surplus Lines Ins. Co. v. Certain Underwriters & Underwriting Syndicates at Lloyd’s of London, 868 F. Sup. 923, 926 (S.D. Ohio 1994); Aqua-Marine Constructors, Inc. v. Banks, United States District Court, Docket No. 92-1161-FR, 1993 U.S. Dist. LEXIS 17541, **7-8 (D. Or. 1993) (“[b]ecause [Oregon’s substituted service statute] expressly authorizes any legally sufficient method of service of process, [the plaintiff] has satisfied the service requirements of [Oregon’s prepleading security statute]”), aff'd, 110 F.3d 663 (9th Cir.), cert. denied sub nom. Polaris Ins. Co. Ltd. v. Aqua-Marine Constructors, Inc., 522 U.S. 933, 118 S. Ct. 339, 139 L. Ed. 2d 263 (1997); but see Schnitzer Investment Corp. v. Certain Underwriters at Lloyd’s of London, 197 Or. App. 147, 165-69, 104 P.3d 1162 (2005) (construing similar language to require service on Oregon director of department of consumer and business services for award of attorney’s fees), aff'd, 341 Or. 128, 137 P.3d 1282 (2006) (en banc).

In sum, in light of the language of § 38a-27 in its entirety and the cross references it contains, and our practice of giving a liberal construction to a remedial statute, we conclude that the plaintiffs properly served the defendants in this case by serving the defendants’ designated agents for process. Having done so, the plaintiffs are entitled to have the court exercise its discretion to determine the amount of prepleading security that the defendants must provide in order to defend against the plaintiffs’ claims. See part III.

II

The defendants have raised a second issue of statutory construction that focuses on the exclusion of “industrial insureds” from the prepleading security provisions of § 38a-27. It is undisputed that, pursuant to General Statutes § 38a-271 (c), “[t]he provisions of section 38a-27 do not apply to . . . (5) transactions . . . involving contracts of insurance issued to . . . industrial insureds . . . .” Having ruled for the defendants on the issue of service of process, the court did not reach this issue.

Although the plaintiffs do not deny that they are “industrial insureds,” they maintain that, because they are reinsureds, they are entitled to the exemption from § 38a-271 (c) that is contained in § 38a-271 (b) (2). That subsection states in relevant part that “[t]he provisions of sections 38a-271 to 38a-278, inclusive ... do not apply to . . . (2) the lawful transaction of reinsurance by insureds . . . .” General Statutes § 38a-271 (b). It is undisputed that the plaintiffs are reinsureds. We agree with the plaintiffs that the exemption is dispositive of the defendants’ claim.

In accordance with § l-2z, we begin our interpretation of § 38a-271 with the language of the statute. See Alvord Investment, LLC v. Zoning Board of Appeals, supra, 282 Conn. 401-402. The defendants urge us to focus on the exemption of “industrial insureds” contained in General Statutes § 38a-271 (c) (5) and on the provision in § 38a-289 that “[contracts for reinsurance shall be deemed insurance contracts . . . .’’In the defendants’ view, these sections demonstrate that § 38a-271 (b) cannot reasonably be read to override the “industrial insureds” exclusion from the prepleading security statute contained in § 38a-271 (c). We are not persuaded.

“We construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 9, 905 A.2d 55 (2006). Construing § 38a-271 as a whole, we agree with the plaintiffs that § 38a-271 (b) (2) prevents the application of the exemption in § 38a-271 (c) (5) for contracts of reinsurance. The language of § 38a-271 (b) (2) is sweeping and unconditional. It categorically prevents any part of §§ 38a-271 to 38a-278 from being applied to all reinsurance contracts. If, nonetheless, recourse to legislative history were appropriate, we agree with the plaintiffs that the legislature’s intent in enacting the industrial insurer exemption in 1969 does not shed light on the legislature’s intent in subsequently enacting the reinsurance act in 1996. See State v. Jenkins, 198 Conn. 671, 679, 504 A.2d 1053 (1986). We conclude, therefore, that the provisions of § 38a-271 (b) (2) prevent the application to the plaintiffs of the exemptions for industrial insureds from § 38a-27 otherwise provided by § 38a-271 (c) (5).

Ill

The final issue that we must decide is whether, as the defendants claim, the court, on remand, must permit the defendants to present evidence to inform the court’s exercise of its statutory discretion to determine the amount of security that the defendants must post as a condition of responding to the merits of the plaintiffs’ claim. The defendants argue that such a hearing is constitutionally required under the due process clause of the fourteenth amendment to the United States constitution. The plaintiffs maintain, to the contrary, that the court may base its determination of the amount of the required prepleading security on the damages alleged in the prima facie case set forth in the plaintiffs’ complaint. Because of its ruling in favor of the defendants on the sufficiency of the plaintiffs’ service of process, the court did not reach this issue. We agree with the defendants.

To decide whether § 38a-27 requires an evidentiary hearing, we once again begin with the text of the statute. Alvord Investment, LLC v. Zoning Board of Appeals, supra, 282 Conn. 401-402. Subdivision (1) of § 38a-27 (a) provides in relevant part that before filing any pleading, an unauthorized insurer must “[djeposit with the clerk of the court . . . cash or securities or a bond with good and sufficient sureties to be approved by the court ... in an amount to be fixed by the court . . . sufficient to secure the payment of any final judgment which may be rendered in the action or proceeding.'” (Emphasis added.) Although the language of § 38a-27 does not expressly provide for a hearing, we must decide whether the language requiring the prepleading security to be “approved by the court” entitles the defendants to a hearing before the court determines the amount of security that must be posted.

Our interpretation of § 38a-27 is guided by the tenet of statutory construction instructing us that “if a literal reading would place the statute in constitutional jeopardy, this court will go beyond the face of the statute to determine whether it may be construed so as to achieve its purpose in a manner which is both effective and constitutional.” (Internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 340, 684 A.2d 1181 (1996), overruled on other grounds by Roth v. Weston, 259 Conn. 202, 217, 789 A.2d 431 (2002). To decide whether to construe § 38a-27 to require a hearing, we turn to federal case law addressing due process challenges to other statutes that, like § 38a-27, authorize prejudgment remedies that impose cognizable costs on prejudgment defendants.

In Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), the United States Supreme Court addressed the question of “what process must be afforded by a state statute enabling an individual to enlist the aid of the State to deprive another of his or her property by means of [a] prejudgment attachment or similar procedure.” (Emphasis added.) Id., 9. Doehr established that the relevant inquiry requires, “first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of alternative safeguards; and third . . . principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.” Id., 11. Applying this test to Connecticut’s then-enacted prejudgment remedy statute, Doehr held that “a state statute authorizing prejudgment attachment of [property] without prior notice or hearing [is] unconstitutional, in the absence of extraordinary circumstances, even though the attachment did not interfere with the owner’s use or possession . . . .” United States v. James Daniel Good Real Property, 510 U.S. 43, 54, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993), citing Connecticut v. Doehr, supra, 1. Accordingly, our statute did not pass constitutional muster.

In response to Doehr, our legislature amended our prejudgment remedy statute to preclude the issuance of a prejudgment remedy without the holding of an adversarial hearing. See General Statutes § 52-278e; see also Calfee v. Usman, 224 Conn. 29, 35, 616 A.2d 250 (1992). In Calfee, our Supreme Court emphasized the importance of this procedural requirement to sustaining the constitutionality of the amended statute. See also Kinsale, LLC v. Tombari, 95 Conn. App. 472, 481, 897 A.2d 646 (2006).

This history strongly supports the conclusion that, on its face, § 38a-27 is in constitutional jeopardy. For constitutional purposes, it is difficult to find a persuasive distinction between a statute authorizing a court to order a prejudgment attachment of a defendant’s property and a statute authorizing a court to order the defendant to deposit prepleading security to secure a remedy for a successful plaintiff. In both cases, until there is a final judgment, a court order deprives the defendant of the full use and enjoyment of its property. In both cases, access to an evidentiary hearing affords the defendant the due process rights to which it is constitutionally entitled.

In the specific context of insurance law, a recent decision by the United States Court of Appeals for the Second Circuit is particularly instructive. In British International Ins. Co. Ltd. v. Seguros La Republica, S.A., 212 F.3d 138, 142 (2d Cir.) (per curiam), cert. denied, 531 U.S. 1010, 121 S. Ct. 564, 148 L. Ed. 2d 484 (2000), that court expressly applied the test enunciated in Doehr to turn down a due process challenge to New York’s prepleading security statute, which is analogous to § 38a-27. In so holding, the court emphasized that the New York statute presented “little risk of erroneous deprivation [and] significant additional procedural safeguards.” Id., 143. Among the safeguards that preserved the constitutionality of the New York statute was the presence of “court supervision before an insurer may be required to post [prepleading] security . . . and ... an opportunity to be heard before being subjected to the [prepleading] security requirement.” (Citations omitted; internal quotation marks omitted.) Id. The federal court relied on an earlier New York Court of Appeals case that had focused on the “[mandate of] court supervision” and the “opportunity to be heard before being subjected to the [prepleading] security requirement” in upholding the constitutionality of the New York prepleading statute. Curiale v. Ardra Ins. Co. Ltd., 88 N.Y.2d 268, 278, 667 N.E.2d 313, 644 N.Y.S.2d 663 (1996).

In light of the near identity between the language used in the New York statute and § 38a-27, British International Ins. Co. Ltd. is a persuasive precedent for this case. The plaintiffs do not deny that the defendants have cognizable property rights with respect to the security that § 38a-27 requires them to provide. To avoid the constitutional jeopardy that would attach to § 38a-27 if it were read literally, the statute must be interpreted to afford the defendants the hearing to which they are constitutionally entitled. See Castagno v. Wholean, supra, 239 Conn. 340.

By way of summary, we conclude that, as the plaintiffs have argued, their manner of serving the defendants complied with the statutory requirements of § 38a-27. They are, therefore, entitled to a remand for a determination of the appropriate amount of prepleading security. We also conclude, however, as the defendants have argued, that, at the remand which we have ordered, both parties will be entitled to present evidence about “the amount to be fixed by the court.”

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

In this opinion the other judges concurred.

       The plaintiffs are Hartford Accident and Indemnity Company, Hartford Casualty Insurance Company, Hartford Fire Insurance Company, Hartford Insurance Company of Canada, Hartford Insurance Company of Illinois, Hartford Insurance Company of the Midwest, Hartford Insurance Company of the Southeast, Hartford Lloyd’s Insurance Company, Hartford Underwriters Insurance Company, Nutmeg Insurance Company, Pacific Insurance Company, Sentinel Insurance Company Limited, Trumbull Insurance Company and Twin City Fire Insurance Company.

       The original defendants were approximately 225 foreign and domestic reinsurance companies, approximately 150 of which are underwriting syndicates of Lloyd’s of London. We note that many of the defendants received service through the insurance commissioner as their statutory agent for service. The defendants receiving service in that manner are not parties to this appeal.
      The remaining defendants, many of which are headquartered at Lloyd’s of London, were served through their contractual agent for service of process in New York and were therefore subject to the trial court’s July 19, 2004 oral decision. Of these defendants, because of intervening settlements, only five remain parties to this appeal concerning the continued efforts of the plaintiffs to obtain prepleading security.

       General Statutes § 38a-27 provides in relevant part: “(a) Before any unauthorized person or insurer files or causes to be filed any pleading in any court action or proceeding or in any administrative proceeding before the commissioner instituted against the person or insurer by service made in accordance with the provisions of section 38a-25, section 38a-26 or section 38a-273, the person or insurer shall either: (1) Deposit with the clerk of the court in which the action or proceeding is pending, or with the commissioner in administrative proceedings before the commissioner, cash or securities or a bond with good and sufficient sureties to be approved by the court or the commissioner, in an amount to be fixed by the court or the commissioner sufficient to secure the payment of any final judgment which may be rendered in the action or proceeding, provided the court or the commissioner in administrative proceedings may in its or his discretion make an order dispensing with the deposit or bond where the insurer shows to the satisfaction of the court or the commissioner that it maintains in this state funds or securities, in trust or otherwise, sufficient and available to satisfy any final judgment which may be entered in the action or proceeding; or (2) procure proper authorization to do an insurance business in this state.”

       In its oral decision, the court focused primarily on the substituted service provisions of General Statutes § 38a-25 and the meaning of subsection (e) in that section. We note that § 38a-25 provides for substituted service made on the commissioner of insurance and that General Statutes § 38a-273 provides similar means of making substituted service but on the secretary of the state. Sections 38a-25 and 38a-273 both include language that provides that the substituted service provisions shall not limit or abridge the rights of a party to make service of process in any other legal manner. See General Statutes §§ 38a-25 (e) and 38a-273 (e). In light of the similar language in these two sections, our interpretation of § 38a-25 (e) is equally applicable to § 38a-273 (e).

       The court also noted that it was “struck by the title of [General Statutes] § 38a-27, which states, ‘Procedure where substituted service made against unauthorized insurer.’ ” The trial court then noted that the title of a statute may be useful in the process of statutory interpretation. Noting that “[i]t’s not a dispositive factor,” the court concluded that “when it’s in the title [and] in the preamble to the statement of purpose, a reference to substituted service, I . . . think it’s of some significance.”
      Although “it is often useful to examine the title of a proposed bill . . . and the purpose the legislature intended to accomplish by its enactment,” the title of the legislation is useful only “when it is acted upon by the legislature . . . .” (Internal quotation marks omitted.) State v. State Employees' Review Board, 239 Conn. 638, 649, 687 A.2d 134 (1997). We note that even though the heading of § 38a-27 was changed from “Procedure prior to proceedings. Postponement of proceedings. Motions to quash and to set aside service,” to “Procedure where substituted service made against unauthorized insurer,” in the 1991 revisions to the General Statutes, these changes were not part of the enactment voted on by the legislature. See Public Ads 1990; No. 90-243, § 150. In our construction of § 38a-27, we, therefore, assign no significance to the language of the statutory heading.

       The defendants claim that, although they were not authorized insurers under Connecticut’s General Statutes, they, nonetheless, were not “unauthorized” insurers as that term is used in General Statutes § 38a-27. The defendants’ argument is untenable.
      General Statutes § 38a-l (11) • (E) specifically defines “unauthorized insurer” as that term is used in title 38a. It provides: “ ‘Unauthorized insurer’ . . . means an insurer that has not been granted a certificate of authority by the commissioner to transact the business of insurance in this state or an insurer transacting business not authorized by a valid certificate.” The defendants conceded at trial that they had not been granted a certificate of authority by the commissioner and have not indicated to this court that they have obtained a certificate since trial. The defendants, therefore, are “unauthorized insurers” as that term is used in § 38a-27.

       General Statutes § 38a-27 (b) provides: “The court in any action or proceeding in which service is made as provided in section 38a-25, section 38a-26 and section 38a-273, or the commissioner in any administrative proceeding in which service is made as provided in section 38a-273, may, in its or his discretion, order such postponement as may be necessary to afford the defendant reasonable opportunity to comply with subsection (a) of this section and defend the action or proceeding.”

       We note that although General Statutes § 38a-25 (e) is based on a model law, see 5 National Association of Insurance Commissioners Model Laws, Regulations and Guidelines § 850-1, and despite the fact that similar provisions have been enacted in thirty-nine jurisdictions; see id., § 850-6; the defendants have not cited, nor has our research uncovered, a single case in which a court has denied prepleading security where service has been made by means other than substituted service.

       General Statutes § 38a-271 (c) (8) defines an industrial insured as “an insured (A) which procures the insurance of any risk by the use of the services of a full-time employee acting as an insurance manager or buyer, or the services of a regularly and continuously retained qualified insurance consultant, and (B) whose aggregate annual premiums for insurance, excluding life, accident and health insurance, total at least fifty thousand dollars.”

       General Statutes §§ 38a-271 through 38a-278, inclusive, encompass chapter 698d of the General Statutes, which is also known as the Unauthorized Insurers Act.

       General Statutes § 38a-271 (c) provides in relevant part: “The provisions of section 38a-27 do not apply to . . . (5) transactions, in this state, involving contracts of insurance issued to one or more industrial insureds . . . .”

       Section 1213 (c) (1) of the New York Insurance Law provides in relevant part: “Before any unauthorized foreign or alien insurer files any pleading in any proceeding against it, it shall either: (A) deposit with the clerk of the court in which the proceeding is pending, cash or securities or file with such clerk a bond with good and sufficient sureties, to be approved by the court, in an amount to be fixed by the court sufficient to secure payment of any final judgment which may be rendered in the proceeding ... or (B) procure a license to do an insurance business in this state.” (Emphasis added.) N.Y. Ins. Law § 1213 (c) (1) (McKinney 2006).

       We note that the Supreme Court of Texas also has rej ected a due process challenge to an analogous prepleading security statute where notice and a “full evidentiary hearing” were provided to the unauthorized insurers prior to the posting of security. Mid-American Indemnity Ins. Co. v. King, 22 S.W.3d 321, 327 (Tex. 1995).