author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. JOHN J. COMMINS
    (AC 23953)
    West, McLachlan and Hennessy, Js.

      Argued March 25
    officially released June 22, 2004

      Darcy McGraw, special public defender, for the appellant (defendant).

      Sarah Hanna, special deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Kelly Anne Masi, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, John J. Commins, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1). He claims that the trial court improperly (1) admitted into evidence testimony concerning a horizontal gaze nystagmus test, (2) permitted the introduction of two prior felony convictions to impeach a defense witness and (3) determined that two prior out-of-state convictions qualified the defendant as a third offender for purposes of § 14-227a (g). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Early in the morning of August 16, 2002, Officer Steven Santucci of the Newtown police department was on patrol on Route 34 in Newtown and observed the defendant, who was driving a truck, approach an intersection, enter a left turn only lane and activate the truck’s left turn signal. Instead of turning left at the intersection, however, the defendant continued through the intersection, and drove along the median line and into the oncoming traffic lane. On the basis of those observations, Santucci initiated a traffic stop.

During the traffic stop, the defendant informed Santucci both that he was on his way home and that he was coming from his home. While speaking with the defendant, Santucci detected the odor of alcohol on his breath. In view of the defendant’s erratic driving and the odor of alcohol, Santucci proceeded to administer three field sobriety tests to the defendant.

The first test administered was the horizontal gaze nystagmus test. 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. See, e.g., State v. Merritt, 36 Conn. App. 76, 84, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995); see also annot, 60 A.L.R.4th 1129 (1988). The premise of the horizontal gaze nystagmus test is that as alcohol consumption increases, the closer to the midline of the nose the onset of nystagmus occurs. To administer the test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject’s eyes. The stimulus, usually a pen or the officer’s finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject’s eyes as he tracks the stimulus and looks for six clues, three for each eye, to determine whether the subject passes or fails the test. The officer looks for (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) the onset of nystagmus at an angle less than forty-five degrees in relation to the center point. A finding of four clues indicates failure of the test and is a sign of intoxication. Santucci testified that the defendant possessed all six clues and that those results indicated that the defendant was under the influence of alcohol.

Santucci also administered the walk and turn test and the one-leg stand test. Santucci testified that the defendant’s performance on both tests indicated that he was under the influence of alcohol.

On the basis of the defendant’s performance on the three tests, his erratic driving and the odor of alcohol on his breath, Santucci placed the defendant under arrest and transported him to the police station, where the defendant refused to submit to a breath test. The defendant subsequently was charged by information with driving while under the influence of intoxicating liquor in violation of § 14-227a (a) (1). The defendant also was charged in a part B information as a third offender in violation of § 14-227a (g) (3), on the basis of two previous convictions in New York for operating a motor vehicle while under the influence of intoxicating liquor.

Prior to trial, the defendant filed a motion for a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), to challenge the admission of evidence concerning the horizontal gaze nystagmus test. Specifically, the defendant challenged both the methodology underlying horizontal gaze nystagmus testing and Santucci’s qualifications to testify as to his administration and grading of the test.

On November 7, 2002, the court conducted a Porter hearing at which the state called Constantine Forkiotis, a behavioral optometrist, as its sole witness. Forkiotis testified that horizontal gaze nystagmus testing is generally accepted in the scientific community, has been comprehensively tested and subjected to peer review, can be explained to jurors in a manner that will assist them in executing their task and was not developed solely for the purpose of use in court. At the conclusion of the hearing, the defendant asked that evidence of the test be excluded on the ground that it does not satisfy the standards enunciated in Porter for the admissibility of scientific evidence in that Forkiotis admitted that a group of ophthalmologists dispute the reliability of horizontal gaze nystagmus testing. The court rejected that argument and denied the defendant’s motion in limine, concluding that horizontal gaze nystagmus testing satisfies Porter because it generally is accepted by the scientific community and meets the remaining Porter criteria.

After trial, the jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor. The court, thereafter, heard argument on whether the defendant’s previous convictions were substantially the same as a conviction under § 14-227a (a) (1) in order to qualify the defendant for third offender status under the part B information. The court ruled that the two prior convictions were substantially the same as a conviction under § 14-227a (a) (1), and the defendant indicated his intention to enter a nolo contendere plea to the charge of being a third offender. The court accepted the plea and sentenced the defendant to three years incarceration, execution suspended after one year, followed by three years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion in limine to preclude evidence of the horizontal gaze nystagmus test. He argues specifically that the state (1) failed to establish a proper foundation for the admission of horizontal gaze nystagmus evidence as required by State v. Porter, supra, 241 Conn. 57, and (2) failed to establish an adequate foundation for Santucci’s testimony as to his administration and grading of the test. We disagree.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Pjura, 68 Conn. App. 119, 130-31, 789 A.2d 1124 (2002).

In determining whether the court properly admitted the horizontal gaze nystagmus evidence at issue, we employ the three part test set forth in State v. Merritt, supra, 36 Conn. App. 91. That test requires that the state (1) satisfy the criteria for admission of scientific evidence, (2) lay a proper foundation with regard to the qualifications of the individual administering the test and (3) demonstrate that the test was conducted in accordance with relevant procedures. See id.

A

The defendant argues that the evidence adduced at the hearing failed to establish an adequate foundation for the admission of scientific evidence as set forth in Porter and, therefore, fails to satisfy the first prong of Merritt.

Under Porter, before proffered scientific evidence may be admitted, the court must determine that the evidence is scientifically valid and demonstrably relevant to the facts of the case, not simply valid in the abstract. State v. Porter, supra, 241 Conn. 65. In determining scientific validity, the Porter court noted that despite the rejection of the approach under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in which “ ‘general acceptance’ ” was the sine qua non of admissibility, courts should continue to consider general acceptance in making admissibility determinations. State v. Porter, supra, 84. As the court stated: “[W]e suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue. . . . Thus, [although Frye may no longer be the standard for admissibility, general acceptance remains a part of the analysis, and in many cases its presence may alone be sufficient to admit the evidence. . . . [I]f a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 84-85.

The Porter court then enumerated several other nonexclusive factors that may play a role in a trial court’s assessment of the validity of a scientific methodology. Those factors include: (1) whether the methodology has been tested and subjected to peer review; (2) the known or potential rate of error; (3) the prestige and background of the expert witness supporting the evidence; (4) the extent to which the scientific technique in question relies on subjective interpretations and judgments by the testifying expert; and (5) whether the testifying expert can present the methodology underlying his scientific testimony in such a manner that the fact finder can reasonably draw its own conclusions therefrom. Id., 86.

At the conclusion of the Porter hearing in the present case, the court found that the horizontal gaze nystagmus test and its underlying methodology is generally accepted in the scientific community. Although that finding alone likely would suffice to establish a sufficient foundation for admission; id., 84-85; the court also found that many of the remaining Porter criteria for admissibility were satisfied. Our review of the relevant transcript reveals that Forkiotis’ testimony at the Porter hearing, as set forth previously, provided a factual basis for the court to find that (1) the methodology has been tested and subjected to peer review, (2) there is a known or potential rate of error, (3) Forkiotis was credible and (4) the methodology is explainable to the jury in a manner from which it reasonably could draw its own conclusions.

We accordingly conclude that the court properly determined that the horizontal gaze nystagmus evidence adduced at the hearing satisfied the Porter test for the admission of scientific evidence.

B

The defendant next argues that the state failed to establish that Santucci was qualified to administer and to grade the horizontal gaze nystagmus test, as required by the second prong of Merritt.

The defendant conducted voir dire at trial as to Santucci’s training and qualifications. Santucci testified that he had been a police officer for approximately two years and had spent six months at the police academy where he received training in the detection and apprehension of individuals operating motor vehicles while under the influence of liquor. He testified that he successfully completed an advanced detection class on the subject, in which he was taught how to administer and to evaluate the horizontal gaze nystagmus test. In particular, Santucci offered detailed explanations of the theory underlying the test, the mechanics of administering the test and the method used to evaluate a subject’s performance. Santucci also demonstrated the test in the courtroom on one of the state’s attorneys.

As this appeal presents the first opportunity for a Connecticut court to consider whether a police officer was qualified to administer and to grade a horizontal gaze nystagmus test, we look for guidance to other jurisdictions that have considered the issue. In assessing whether a proper foundation has been laid respecting the qualifications of an officer to administer the test, courts have evaluated both the officer’s training and experience. Although no mechanical factor test has emerged as dispositive, courts have considered a number of factors, including the length of time the individual has been a police officer, the approximate number of stops the officer has made in that time for operating a motor vehicle while under the influence of intoxicating liquor and any specialized training the officer has received relative to the horizontal gaze nystagmus test. See, e.g., Tuttle v. State, 232 Ga. App. 530, 502 S.E.2d 355 (1998); People v. Buening, 229 Ill. App. 3d 538, 592 N.E.2d 1222, leave to appeal denied, 146 Ill. 2d 634, 602 N.E.2d 460 (1992); Cooper v. State, 761 N.E.2d 900 (Ind. App. 2002); Hulse v. State, 289 Mont. 1, 34, 961 P.2d 75 (1998); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). We find those factors helpful considerations in our analysis.

Applying those factors to the present case, we note that although Santucci’s tenure as a police officer was not particularly lengthy and that there was no testimony regarding the approximate number of drunken driving stops he had made during his tenure, he did receive specialized training in horizontal gaze nystagmus testing at the police academy. That training later was reinforced at advanced detection classes and tested through written examinations, which he successfully completed. Santucci also demonstrated his competence by testifying in detail as to how the test was administered, what clues he looked for in grading the test and how the defendant performed. On the basis of the foregoing, we conclude that Santucci’s specialized training established that he was qualified to administer and evaluate horizontal gaze nystagmus tests.

C

We turn finally to the third prong of Merritt and the question of whether the horizontal gaze nystagmus test was performed properly and in accordance with prevailing standards.

We look again for guidance to other jurisdictions that have considered the issue. Those courts indicate that in determining whether a horizontal gaze nystagmus test has been administered properly, a primary consideration is whether a police officer has demonstrated an accurate understanding of the grading system. See, e.g., Duffy v. Director of Revenue, 966 S.W.2d 372, 378 (Mo. App. 1998); State v. Hill, 865 S.W.2d 702, 704 (Mo. App. 1993), overruled on other grounds, State v. Carson, 941 S.W.2d 518 (Mo. 1997). Courts also have examined whether the test was administered in accordance with the specialized training the officer received. See, e.g., Bramble v. State, 294 Mont. 501, 505, 982 P.2d 464 (1999). We consider those factors in our analysis.

At trial, Santucci both testified as to and demonstrated how he administered the horizontal gaze nystagmus test to the defendant. He explained to the jury the six clues one looks for when grading the test and the number of clues that indicates failure of the test. Furthermore, the defendant neither alleged nor presented evidence indicating that Santucci had administered or graded the test in a manner inconsistent with his specialized training. On the basis of Santucci’s uncontroverted testimony, we conclude that the horizontal gaze nystagmus test was performed properly and in accordance with his training.

In light of the foregoing determinations that under the circumstances of this case, (1) the horizontal gaze nystagmus test evidence satisfied the requirements of Porter, (2) Santucci was qualified to administer the test and (3) the test was performed properly, we conclude that the court properly admitted evidence of the horizontal gaze nystagmus test and properly denied the defendant’s motion in limine.

II

The defendant next claims that the court improperly permitted the introduction of two prior felony convictions to impeach a defense witness. Specifically, he argues that the court did not balance properly the probative value of admitting such evidence against its prejudicial effect and, instead, focused solely on the “ten year rule.” We disagree.

It is well established that a witness may be impeached by the introduction of his prior felony convictions. See, e.g., State v. Dorans, 261 Conn. 730, 754, 806 A.2d 1033 (2002); see also General Statutes § 52-145 (b); Conn. Code Evid. § 6-7 (a). In recognition of the court’s inherent authority to exclude evidence, the prejudicial tendency of which is deemed to outweigh its probative value, three factors have been identified to guide courts in considering whether a prior criminal conviction should be admitted to impeach a witness. Those factors are: “(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.” (Internal quotation marks omitted.) State v. Dorans, supra, 755. “[W]e will not disturb the trial court’s determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion . . . and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Id., 756.

At trial, the defense called two witnesses, John Matey and Ken Durniak, who purportedly were with the defendant in the hours before his arrest. Matey testified that on the evening in question, the defendant and Durniak visited Matey’s home to help him paint a bedroom. He testified that there was no alcohol in the house and that he did not observe the defendant consume any alcoholic beverages that night or appear intoxicated at any time. Matey stated that he heard a loud thump from the direction of the bedroom where the defendant was painting. When Matey went to investigate the sound, he observed the defendant on the floor in the bedroom, holding his head while Durniak helped him to stand. Matey testified that it was his belief that the defendant had fallen off a ladder while painting. That testimony supported an alternate explanation for the defendant’s performance on the three field sobriety tests.

During cross-examination of Matey, the state sought to introduce his two prior felony convictions for possession of a shotgun silencer and for operating a motor vehicle while under the influence of intoxicating liquor from New York. Defense counsel objected to the introduction of the convictions on the ground that they were irrelevant to Matey’s credibility. The court acknowledged that although the convictions did not relate to credibility, they were both less than ten years old and were felonies. The court allowed their admission for impeachment puiposes only and did not permit the state to name the specific felonies. The court further stated that it would instruct the jury that the prior felonies could be used only to assess Matey’s credibility.

Evidence of any felony conviction has been determined to bear on a witness’ credibility irrespective of the precise nature of the crime and its direct relation to veracity. See General Statutes § 52-145; see also State v. Rivera, 221 Conn. 58, 74, 602 A.2d 571 (1992) (noting legislative judgment that records of all felonies affect credibility). Additionally, both of the convictions were less than ten years old and, therefore, within the time frame our Supreme Court has approved as a general guideline for determining remoteness. See State v. Aponte, 50 Conn. App. 114, 127, 718 A.2d 36 (1998), rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999).

Furthermore, any potential prejudice to the defendant in the present case was minimized by a number of factors. First, the convictions at issue pertained not to the defendant but to a defense witness. Our Supreme Court has stated that “[t]he danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence.” (Internal quotation marks omitted.) State v. Askew, 245 Conn. 351, 363, 716 A.2d 36 (1998). Second, defense counsel had the opportunity on redirect examination to explain the circumstances of the convictions and to eliminate any claimed prejudicial effect. See State v. Jefferson, 67 Conn. App. 249, 263, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). Third, the court further reduced the risk of prejudice by expressly disallowing any reference to the felonies by name and by cautioning the jury, on two separate occasions, that the evidence of the prior convictions could be used only to assess the credibility of the witness. See State v. Sauris, supra, 227 Conn. 403 (“[j]urors are presumed to have followed the instructions of the court as to the law in the absence of a clear indication to the contrary”).

In light of those considerations and the particular circumstances of this case, we conclude that the probative value of Matey’s felony convictions outweighed any potential prejudice their admission might have engendered. We accordingly conclude that the court’s admission of those convictions was not an abuse of discretion.

Ill

The defendant last claims that his conviction on the part B information was improper because the New York statute, under which he was twice convicted of operating a motor vehicle while under the influence of alcohol or drugs, is not “substantially the same” as a conviction under § 14-227a (a) (1) and, therefore, forms an insufficient basis on which to adjudicate him a third offender under § 14-227a (g). We decline to review the claim.

As stated previously, the state charged the defendant under a part B information as a third offender on the basis of his two prior convictions in New York, one in 1984 and the other in 1993, for operating a motor vehicle while under the influence of alcohol or drugs in violation of N.Y. Veh. & Traf. Law § 1192 (McKinney 1996). Following the jury’s verdict finding the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor, the court addressed the part B information. After hearing argument on whether the New York convictions occurred within the ten year period set forth in § 14-227a (g) (3), the court concluded that the convictions qualified for consideration. At that time, the defendant indicated his intention to enter a plea of nolo contendere to the part B information. On the plea form, signed by the defendant on November 8, 2002, the defendant did not check the box indicating that the plea was conditional. Also, the court fully canvassed the defendant with regard to the plea and advised him of all relevant rights. The. court found that the defendant had entered his plea knowingly, intelligently and voluntarily with the assistance of competent counsel, but the court did not accept the plea at that time.

On January 10, 2003, following a presentence investigation hearing at which the court again heard argument on the issue of whether the defendant’s New York convictions qualified as “prior convictions” for purposes of § 14-227a (g), the court determined that the essential elements of the New York statute were substantially the same as § 14-227a (a) (1). The court then accepted the defendant’s nolo contendere plea and sentenced the defendant as a third offender.

“It is well established that an unconditional nolo contendere plea, when intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars later challenges to pretrial proceedings. . . . Thus, usually only those issues fully disclosed on the record which concern either the court’s jurisdiction or the intelligent and voluntary nature of the plea are appealable after a nolo contendere plea has been entered and accepted.” (Citations omitted; internal quotation marks omitted.) State v. Gilnite, 202 Conn. 369, 374-75, 521 A.2d 547 (1987).

Here, the defendant entered an unconditional nolo contendere plea to the part B information. He thereby waived his right to appeal on the ground of any nonjurisdictional claims arising from the part B information, including the claim he asserts on appeal. We therefore decline to review the merits of his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant makes no claims on appeal with respect to those tests.

       Although the court, in addressing the part B information, referred to General Statutes (Rev. to 2001) § 14-227a (h), that subsection was redesignated as subsection (g) by Public Acts, Spec. Sess., May, 2002, No. 02-01, § 108, prior to date of the defendant’s arrest.

       We note that the defendant indicated that he had no objection to the court’s recognition of Forkiotis as an expert in behavioral optometry.

       Although the defendant in his brief raised the additional claim that Forkiotis was not a qualified expert, we do not address the merits of that claim. As stated in footnote 3, the defendant stipulated at the Porter hearing that Forkiotis was an expert and, in so doing, waived that claim.

       We note that the present appeal is the first time our appellate courts have considered this precise issue. In both State v. Russo, 62 Conn. App. 129, 136 n.5, 773 A.2d 965 (2001), and State v. Pjura, supra, 68 Conn. App. 134, this court expressly declined to rule on the issue, despite the urging of counsel. We explained in Pjura that “[a]s we noted in Russo, we will not determine whether the [horizontal gaze nystagmus] test meets the [Porter] criteria when the trial court has not itself specifically ruled on that issue.” State v. Pjura, supra, 134. In the present case, by contrast, the court made a specific determination that the horizontal gaze nystagmus evidence proffered by the state satisfied the Porter criteria for admission into evidence, therefore providing the necessary basis for our consideration of the issue.

       In conformity with the prevailing precedent at the time, we stated in Merritt that the party seeking to introduce horizontal gaze nystagmus testimony must, as a first step, satisfy the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We noted in State v. Pjura, supra, 68 Conn. App. 132-33, eight years after Merritt, that our Supreme Court’s decision in Porter changed the applicable evidentiary test from Frye to the one more recently enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). We clarified that although Porter changed the criteria for admission, it did not affect the primary holding of Merritt that horizontal gaze nystagmus testing is the type of scientific evidence that requires a proper foundation. See State v. Russo, supra, 62 Conn. App. 135-36.
      We note also that the Merritt test for the admission of horizontal gaze nystagmus evidence is substantially in accord with the approach of the majority of other jurisdictions that have addressed the issue. See, e.g., Ballard v. State, 955 P.2d 931 (Alaska App. 1998); State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986) (en banc); Zimmerman v. State, 693 A.2d 311 (Del. 1997); Williams v. State, 710 So. 2d 24 (Fla. App. 1998); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, cert. denied, 223 Ga. App. 907 (Ga. 1996); State v. Ito, 90 Haw. 225, 978 P.2d 191 (App. 1999); People v. Buening, 229 Ill. App. 3d 538, 592 N.E.2d 1222, leave to appeal denied, 146 Ill. 2d 634, 602 N.E.2d 460 (1992); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So. 2d 883 (La. App. 1990); State v. Taylor, 694 A.2d 907 (Me. 1997); Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (1995); People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (1996); State v. Hill, 865 S.W.2d 702 (Mo. App. 1993), overruled on other grounds, State v. Carson, 941 S.W.2d 518 (Mo. 1997); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); Ellis v. State, 86 S.W.3d 759 (Tex. App. 2002); State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (1999), review denied, 239 Wis. 2d 308, 619 N.W.2d 91 (2000). Many of those courts have either taken judicial notice of the validity and reliability of horizontal gaze nystagmus testing or concluded that horizontal gaze nystagmus test results are admissible as scientific evidence as a matter of law and, therefore, those courts do not engage in a separate analysis of the first prong.

       Although not all scientific evidence must withstand scrutiny under Porter as a precondition to its admission into evidence; see State v. Reid, 254 Conn. 540, 549, 757 A.2d 482 (2000); this court has determined that evidence of horizontal gaze nystagmus testing is the type of scientific evidence to which the Porter test must be applied. See State v. Pjura, supra, 68 Conn. App. 133; State v. Russo, supra, 62 Conn. App. 136.

       Those courts accord varying levels of importance to those factors, some emphasizing experience and others the officer’s specialized training. No single factor appears to be accorded greater weight than the others.

       “While leaving the matter to the general discretion of the trial court, we have sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect.” State v. Sauris, 227 Conn. 389, 409-10, 631 A.2d 238 (1993).

       Dumiak’s testimony essentially mirrored that of Matey.

       After ascertaining that Matey had been convicted of the two felonies, the following colloquy, in relevant part, occurred:
      “[Defense Counsel]: Yes, Judge. I’m objecting because I don’t see how those two convictions would affect the witness’ credibility on the [witness] stand. They’re not fraudulent convictions; they have nothing to do with . . . character in terms of truth telling. And I think they aren’t relevant to this proceeding and the facts of what happened that night.
      “The Court: Well, the two convictions are less than ten years old. It’s true what you say that the type of convictions don’t have a direct bearing on credibility, but they are felonies. It was what, possession of?
      “[The Prosecutor]: Shotgun silencer.
      “The Court: Shotgun silencer and a felony [operating a motor vehicle while under the influence of alcohol or drugs]; they don’t directly have a bearing on credibility, the types of charges. But felony convictions are— can be used for impeachment puiposes. The defendant — pardon me, the witness is here testifying and subject to cross-examination.
      “What I’m going to do is, I’m going to allow the state to ask the witness if he has two felony convictions, and he can answer the way he answered. I won’t allow the state to name the charges. And I’ll explain to the jury [that it] can use any convictions to assess his credibility, but that’s it. Anything else?”

       The court instructed the jury immediately following Matey’s testimony and again in its final charge that the two prior felony convictions were admitted for the limited purpose of assessing Matey’s credibility.

       General Statutes § 14-227a (g) provides in relevant part that “a conviction in any other state of any offense the essential elements of which are determined by the court to be substantially the same as subdivision (1) or (2) of subsection (a) of this section . . . shall constitute a prior conviction for the same offense.” (Emphasis added.)

       Although the defendant’s 1984 conviction occurred more than seventeen years before the present conviction, it is well settled that only the most recent conviction must comply with the ten year rule. See, e.g., State v. Kratzert, 70 Conn. App. 565, 568-70, 799 A.2d 1096, cert. denied, 261 Conn. 932, 806 A.2d 1069 (2002).

       We recognize that in limited circumstances, this court has undertaken appellate review of cases involving the entry of nolo contendere pleas despite the absence of an affirmative showing on the record that the pleas were entered pursuant to General Statutes § 54-94a. In State v. Van Der Werff, 8 Conn. App. 330, 513 A.2d 154, cert. denied, 201 Conn. 808, 515 A.2d 380 (1986), we noted that although the defendant’s written plea of nolo contendere did not indicate that it was made pursuant to § 54-94a, the parties treated the plea as conditional and the court would, accordingly, review it as such. See id., 331 n.l.

        Van Der Werff is distinguishable from the present case because the record here does not support the conclusion that the defendant preserved his right to appellate review.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    LISA D. EGAN v. PAUL B. EGAN
    (AC 24175)
    Schaller, Flynn and DiPentima, Js.

      Argued March 25
    officially released June 29, 2004

      Lisa D. Egan, pro se, the appellant (plaintiff).

      Paul B. Egan, pro se, the appellee (defendant).
   Opinion

DiPENTIMA, J.

In this postjudgment dissolution of marriage action, the plaintiff, Lisa D. Egan, appeals from the judgment of the trial court terminating child support as to one of the parties’ children and modifying child support for the parties’ remaining child. On appeal, the plaintiff claims that the court improperly denied her various rights of due process under the law by (1) failing to provide her with notice of the hearing to terminate child support, (2) terminating child support in contravention of the dissolution decree when there had been no substantial change in circumstances and (3) modifying child support, sua sponte, as to the remaining child. We agree with the plaintiff on the first issue and, accordingly, reverse the judgment of the trial court.

The plaintiff and the defendant, Paul B. Egan, were married on October 9, 1983. During their marriage, the parties had two children, Rachel, bom December 14, 1984, and Loyal, bom December 19, 1989. On July 6, 1999, the court dissolved the parties’ marriage. The judgment of dissolution incorporated an agreement by the parties, which included provisions for the plaintiffs sole custody of the children as well as alimony and child support. Specifically, the defendant was ordered to pay $310 per week in child support, or $155 per child, until each child became eighteen years of age or graduated from high school, whichever occurred later.

The tortured and protracted history of this case unfortunately continues. Since 1998, seventy motions have been filed, including motions for protective orders and motions for contempt. More than 150 docket entries are noted prior to this appeal.

On March 6, 2003, the defendant filed a petition to terminate child support for his oldest child, Rachel, on the ground that she was eighteen years old as of December 14, 2002, and that he had no knowledge of her current grade level or enrollment status in school. A hearing was scheduled for April 2, 2003, and the defendant was ordered to serve notice, pursuant to Practice Book § 25-28, on the plaintiff, who resides in Pennsylvania and whose address was not in dispute. The defendant was required to give notice to the plaintiff by registered or certified mail, personal return receipt requested, on or before March 16, 2003, or by having an authorized person in the state where the plaintiff lives serve her and file proof of service with the court. On March 7, 2003, state marshal Erwyn Glanz mailed an order for notice, a summons and the petition to terminate child support by certified mail, personal return receipt requested, to the plaintiffs post office mailbox. On the same day, Glanz sent an initial notice of return of service to the court certifying the mailing of notice and noting, “Supplemental return to follow.” No supplemental return or personal return receipt is contained in the court file.

The motion to terminate child support was heard on the scheduled hearing date of April 2,2003. The plaintiff was absent. No witnesses were sworn. No evidence was admitted properly. The court entered the following orders: “(1) Petition to the court to terminate child support order for [Rachel] is granted effective as of the date of this order; (2) Motion for modification is granted on child support. The current support will now be $178. This is effective upon notice to the plaintiff.” This appeal followed.

The plaintiff first claims that by proceeding with the hearing, the court violated her due process rights to be given adequate notice of the hearing, to be given an opportunity to be present and to be heard, to present evidence and to cross-examine witnesses against her. We agree with the plaintiff.

The resolution of the plaintiffs claim of procedural error requires this court to examine the notice requirements of Practice Book § 25-28. That examination “requires us to apply our well settled principles of statutory construction. . . . Statutory construction is a question of law and therefore our review is plenary.” (Citation omitted; internal quotation marks omitted.) Chase Manhattan Mortgage Corp. v. Burton, 81 Conn. App. 662, 665-66, 841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d 313 (2004).

At the outset, we note the principles underlying the necessity for adequate and proper notice. “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” (Internal quotation marks omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). “It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993).

Consistent with those principles, Practice Book § 25-28 (b) provides that “[w]ith regard to any postjudgment motion for modification or for contempt or any other motion requiring an order of notice, where the adverse party resides out of or is absent from the state any judge or clerk of the court may make such order of notice as he or she deems reasonable. Such notice having been given and proved, the court may hear the motion if it finds that the adverse party has actually received notice that the motion is pending.”

There is no indication in the transcript of the hearing that the court found that the plaintiff had actually received the notice. The record reflects no inquiry or finding by the court regarding notice to the plaintiff. Further, the supplemental return was not in the court file on the day of the hearing. Because the April 2, 2002 hearing was conducted in violation of the plaintiffs due process rights to be given adequate notice of the hearing and, accordingly, to be given an opportunity to be present and to be heard, to present evidence and to cross-examine witnesses against her, the orders issued at that hearing cannot stand.

The judgment is reversed and the case is remanded with direction to vacate the orders issued by the court on April 2, 2003.

In this opinion the other judges concurred.

       The defendant claims that he received no response to his request for that information.

       The defendant attached a copy of the supplemental return in the appendix to his brief, indicating that the certified mail was returned unclaimed after the post office gave notice of certified mail on March 10, 15 and 25, 2003, to the plaintiff via her post office box. The supplemental return indicates that the notice was returned to the state marshal on April 2, 2003, the day of the hearing. The plaintiff acknowledged that she often picks up her mail only once a week, or less often if she is traveling, and that such a decision is “her prerogative.”

       Because our determination that there was insufficient notice to the plaintiff requires that we vacate all the orders of the court from that hearing, we do not address the plaintiffs second and third issues.


author: FREEDMAN, J.

text:
    IN RE KAURICE B.

    (AC 24229)
    Foti, McLachlan and Freedman, Js.
    Argued January 12
    officially released June 29, 2004

      Gary J. Wilson, for the appellant (respondent stepmother).

      John B. Ashmeade, assistant attorney general, with whom, on the brief, were Richard Blwmenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Barry A. Charles, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

FREEDMAN, J.

This is an appeal by the respondent stepmother from an order of the trial court sustaining an order of temporary custody regarding her minor stepdaughter, K. On appeal, the respondent claims that the judgment of the trial court is against the weight of the evidence. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following facts. On April 21, 2003, the petitioner, the commissioner of children and families (commissioner), invoked a ninety-six hour hold as to the child pursuant to General Statutes § 17a-101g (c) after receiving a report of physical abuse. On April 25, 2003, the commissioner filed a petition for an adjudication of neglect and a motion for an order of temporary custody pursuant to General Statutes § 46b-129 (b). On that date, the court granted the order of temporary custody to the commissioner. A preliminary hearing was held on May 1, 2003. At that time, the respondent requested an evidentiary hearing, which was held on May 2, 2003. Several witnesses testified at that hearing, including the child’s teacher and school social worker, as well as social workers from the department of children and families (department). The court also admitted into evidence the affidavits of the department social workers involved in the case. At the conclusion of the evidentiary hearing, the court sustained the order of temporary custody. The respondent has appealed from that decision, arguing that no evidence was presented at the hearing that the child was suffering from physical illness or serious physical injury or that she would be in immediate physical danger if she returned home.

We initially set forth our standard of review. Pursuant to § 46b-129 (b), the court may “issue an order ex parte vesting in some suitable agency or person the child’s or youth’s temporary care and custody” if it appears, on the basis of the petition and supporting affidavits, that “there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child’s or youth’s surroundings, and (2) that as a result of said conditions, the child’s or youth’s safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s or youth’s safety. . . .”

At a subsequent hearing on an order of temporary custody, “the proper standard of proof ... is the normal civil standard of a fair preponderance of the evidence. . . . The party seeking a change in custody, in this case the [petitioner], must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in § 46b-129 (b).” (Citation omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983).

We note that “[a]ppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Michael L., 56 Conn. App. 688, 692-93, 745 A.2d 847 (2000). With those principles in mind, we will review the evidence presented at the hearing on the order of temporary custody to determine whether the court’s determination is supported by the evidence in the record.

On the basis of the evidence presented at the hearing, the court reasonably could have found the following facts. On April 21, 2003, the department received a report from the director of the Bridgeport Learning Center, regarding alleged abuse by the respondent toward K and K’s sister. According to the report, the sister stated that she and K had been hit with a belt by the respondent, and that K had been hit more times than the sister. In response to that report, on April 21, 2003, Cynthia Pfeifer, an investigator for the department, interviewed K at her school with the school social worker, Kathy Russell. During that interview, the child admitted that the respondent had hit her with a belt one time, but stated that her father had not hit her in the past two years. She also stated that she did not receive any marks or bruises as a result of being hit. Department workers did not observe any marks on K as a result of her having been hit. During the interview, K’s father arrived. He interrupted the interview several times and when told to wait until the interview was over, spoke to K through the door. In response to that, K withdrew and stated that she did not want to go home.

At some point, Pfeifer left the room to call her supervisor. During the time that Pfeifer was out of the room, K told Russell that she was scared and that her father was mad. K told Russell, “He slapped me so hard one time after I got a forty-two on my test, I couldn’t come to school for four days.” While on the telephone with her program supervisor, Pfeifer was informed that K’s sister, who was being interviewed concurrently by another social worker, had been persistent in her assertions that she and K had been hit more than one time.

When Pfeifer returned and informed K that the sister had been saying different things during her interview, K admitted that she had been hit more than once. K also reported to Pfeifer that on one occasion, New Year’s Eve, her father was intoxicated and showed her and her sister how to hold and use a gun. K indicated that at some point, her father and the respondent were outside and that her father fired the gun. Although K initially had stated that her father came home intoxicated one or two times, she later stated that this happened many times. She further indicated that her father had driven her and her sister while he was intoxicated and that she knew he was intoxicated because he drove through red traffic signals.

Pfeifer testified that once K learned that she would not be going back home after the interview, she spoke more openly. According to Pfeifer, K inquired about her safety and expressed concern about her father coming to school the following day when she was going on a field trip to an aquarium. She was inquisitive about how the department or the school was going to prevent her father from seeing her. K also told Pfeifer that three or four weeks earlier, after K received a poor grade on a test, her father slapped her in the face, which caused a bruise and swelling, and caused her nose to bleed. K told Pfeifer that if anyone asked about the bruise, she was told to say that she was hit by a pole or had walked into a pole. She also said that she was afraid to tell Pfeifer about this while they were at the school because she was afraid of her father’s response.

Finally, the court heard the testimony of Juanita Soriano-Taylor, a social worker with the department, regarding allegations that K had been involved in a sexual relationship with a minor male relative. According to Soriano-Taylor, in August, 2002, K’s sister had gone home on an overnight visit and observed a sexual relationship between K and that relative. The sister reported her observation to Soriano-Taylor, and the department investigated the matter. At that time, K denied the allegation, and the department did not pursue the matter further. On April 23, 2003, K admitted that the relationship was ongoing and that her parents were aware of the relationship.

On the basis of the evidence admitted at the hearing, the court concluded that K would be subject to immediate physical danger from her family surroundings if she was returned to the care and custody of her father and stepmother. Accordingly, the court sustained the order of temporary custody. On the basis of our independent review of the evidence presented at the hearing, we conclude that the court’s decision sustaining the order of temporary custody was amply supported by the record and, therefore, is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The child’s father is not a party to this appeal. We refer in this opinion to the respondent stepmother as the respondent. At oral argument on January 12, 2004, We inquired whether the respondent has standing to contest the order of temporary custody and ordered the parties to file supplemental briefs addressing that issue. On the basis of our review of the supplemental briefs and the court file, we are persuaded that under the circumstances of this case, the respondent has standing to appeal from the order of temporary custody.
      The record reveals that there have been two orders of temporary custody involving K. The first order entered in April, 1999. On August 26, 1999, K was adjudicated neglected and committed to the custody of the petitioner, the commissioner of children and families. That commitment was revoked on December 17, 2001, and protective supervision was ordered until May 17, 2002. The order dated December 17, 2001, revoking the August 26, 1999 order of commitment, specifically provides that K’s custody and guardianship reverted to her father and the respondent. Thus, the respondent may challenge the present order of temporary custody, which was sustained on May 2, 2003.

       General Statutes § 17a-101g (c) provides: “If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child’s safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child’s parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.”
      General Statutes § 17a-101g (d) provides in relevant part that the “removal of a child pursuant to subsection (c) of this section shall not exceed ninety-six hours. ...”

       General Statutes § 46b-129 (b) provides in relevant part: “If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child’s or youth’s surroundings, and (2) that as a result of said conditions, the child’s or youth’s safely is endangered and immediate removal from such surroundings is necessary to ensure the child’s or youth’s safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest in some suitable agency or person the child’s or youth’s temporary care and custody pending disposition of the petition, or (B) issue an order ex parte vesting in some suitable agency or person the child’s or youth’s temporary care and custody. A preliminary hearing on any ex parte custody order or order to appear issued by the court shall be held within ten days from the issuance of such order. ...”

       At oral argument before this court, the parties represented that K is still in the custody of the department pursuant to the order of temporary custody.

       The court properly applied that standard of review in sustaining the order of temporary custody.

       The department workers checked K for bruises after she was brought to the department. They did not check her for bruises while at the school because at that time, she reported that she did not sustain any marks.

       K’s teacher, Lynn O’Brien, testified that K was absent from school on March 18, 19, 20 and 21, 2003, and that when she returned to school, she had a bruise under her eye that looked like it was healing. K told O’Brien that she had the bruise because she had fallen off her bicycle.


author: LAVERY, C. J.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY v. JAMES ALLEN ET AL.
    (AC 24190)
    (AC 24191)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued February 19
    officially released June 29, 2004

      Neil Johnson, with whom was Heather K. Porto, for the appellants (defendants).

      Kristen Schultze Greene, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendants, James Allen, doing business as Allen Landscaping, and William Shaw, appeal from the declaratory judgment rendered by the trial court in favor of the plaintiff, Nationwide Mutual Insurance Company. The defendants claim on appeal that the court improperly concluded that the plaintiff was not obligated to defend or to indemnify Allen in a lawsuit initiated against him by Shaw. The plaintiff, having issued to Allen a commercial general liability insurance coverage policy that specifically excluded from coverage Allen’s employees, sought a declaratory judgment to determine whether it had the duty to defend or to indemnify Allen in the underlying negligence action brought against Allen by Shaw. The court concluded that the plaintiff did not have a duty to defend or to indemnify Allen because Shaw was an employee and not an independent contractor or a temporary worker. We affirm the judgment of the trial court.

The court’s memorandum of decision describes the underlying facts, which are undisputed. Allen is a sole proprietor doing business as Allen Landscaping, which, for a fee, provides landscaping services to customers. Shaw performed landscaping work for Allen in exchange for pay. The plaintiff provided commercial general liability coverage to Allen for a policy period of June 1,1998, to June 1, 1999. Allen’s policy excluded coverage for bodily injury to his employees arising out of and in the course of their employment with Allen or performing duties related to the conduct of Allen’s business. Shaw was injured in an accident that occurred on May 25,1999, while he operated a commercial riding mower that had been purchased by Allen. On June 16, 1999, Shaw filed a claim for workers’ compensation benefits for his injuries. In a notice of claim signed by Shaw’s attorney, those injuries were described as having arisen from an accident that occurred in the course of Shaw’s employment by Allen.

On November 18, 1999, Shaw initiated a negligence action against Allen, alleging that the injuries sustained while operating Allen’s commercial riding mower were due to Allen’s negligence. In connection with that underlying action, the plaintiff brought a declaratory judgment action, which forms the basis of the present appeal, seeking a determination as to the extent of its obligation to defend or to indemnify Allen. Shaw seeks to have the plaintiff defend Allen and pay any damages awar ded to Shaw in the underlying action. The plaintiff was defending the underlying tort action under a reservation of rights at the time it commenced this declaratory judgment action. The plaintiff filed a motion for summary judgment in this declaratory judgment action. The court denied the plaintiffs motion, finding that there was a genuine issue of material fact as to whether the “employer” retained the right to control not merely the result, but the means and methods used by the worker to obtain the desired result. After a trial, the court rendered a declaratory judgment in favor of the plaintiff, determining that the plaintiff was not obligated to defend or to indemnify Allen in the underlying tort action. The defendants now appeal.

The defendants claim that the court improperly rendered the plaintiffs declaratory judgment. In support of their claim, the defendants argue that the court lacked subject matter jurisdiction to determine whether Shaw was Allen’s employee while that same question was simultaneously before the workers’ compensation commissioner, that the court improperly determined that Shaw was an employee and not an independent contractor, that the court improperly determined that Shaw was not a temporary worker within the meaning of the insurance contract, and that the court improperly determined that a statement in the workers’ compensation claim filed by Shaw, in which Shaw alleged that he was Allen’s employee, was an admission. We dis- , agree and address each argument in turn.

We observe that Practice Book § 17-54 provides that a court may award declaratory relief “as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.” Practice Book § 17-55 permits a court to award declaratory relief if the following conditions are met: “(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

We afford the trial court “wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete.” (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). We conclude that nothing precluded the court from issuing declaratory relief in the present case.

I

We first address the defendants’ argument that the court lacked subject matter jurisdiction to determine whether Shaw was Allen’s employee while Shaw’s workers’ compensation case, in which he alleged that he was Allen’s employee, was still pending. Specifically, the defendants argue that whether an individual is an employee or an independent contractor is a question of fact to be determined by the workers’ compensation commissioner. In support of that argument, the defendants rely on General Statutes § 31-275, which defines “employee” within the meaning of the Workers’ Compensation Act, General Statutes § 31-275 et seq. (act), and General Statutes § 31-278, which confers exclusive jurisdiction on the workers’ compensation commissioner over all claims arising under the act. We are not persuaded.

As a threshold matter, we set forth the applicable standard of review for a claim challenging atrial court’s subject matter jurisdiction. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings. . . . [A] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it .... [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 263-64, 823 A.2d 340 (2003).

“A brief overview of the purpose, relevant provisions and relevant jurisdictional confines of the [act] is necessary to a resolution of the [defendants’] jurisdictional claims. The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. . . . The [act] compromise [s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. . . .

“We have previously observed that the workers’ compensation commission, like any administrative body, must act strictly within its statutory authority .... It cannot modify, abridge, or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power. . . . [I]t is settled law that the commissioner’s jurisdiction is confined by the [act] and limited by its provisions. . . . The commissioner exercises jurisdiction only under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . The parties cannot confer jurisdiction upon the commissioner by agreement, waiver or conduct. . . . The [act] is not triggered by a claimant until he brings himself within its statutory ambit. . . . Although the [act] should be broadly construed to accomplish its humanitarian purpose ... its remedial purpose cannot transcend its statutorily defined jurisdictional boundaries.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 799-800, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

The plaintiff sought a declaratory judgment to determine the extent of its duty, if any, to defend or to indemnify Allen. The plaintiffs declaratory judgment action is solely related to the extent of its contractual obligation to its insured and wholly unrelated to Shaw’s claim for workers’ compensation benefits. The power to grant declaratory relief concerning the extent of coverage provided to Allen under the plaintiffs insurance policy lies exclusively within the province of the judicial authority while the workers’ compensation commissioner can grant no declaratory relief regarding the plaintiffs obligations to defend or to indemnify Allen.

We conclude that the court had the requisite subject matter jurisdiction to determine whether Shaw was an employee of Allen for the purpose of determining the extent of the plaintiffs obligations to Allen.

II

The defendants next argue that the court improperly determined that Shaw was Allen’s employee. Specifically, the defendants argue that the court should have given greater weight to the evidence they presented in trying to persuade the court that Shaw was an independent contractor and not an employee of Allen. Thus, the defendants contend, the court’s decision and rationale for its decision were improper and could not have been decided on the facts and evidence presented at trial. We disagree.

Whether someone is an employee or an independent contractor is a question of fact, absent controlling circumstances. Ross v. Post Publishing Co., 129 Conn. 564, 567, 29 A.2d 768 (1943). Thus, the defendants’ claim requires us to review a finding of fact. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 436-37, 845 A.2d 382 (2004).

We turn now to the legal principles that guide our resolution of the defendants’ claim. “The legal incidents of the employer-employee relationship, on the one hand, and the employer-independent contractor relationship, on the other, are well established. In Alexander v. R. A. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 [1912], [the Supreme Court] adopted the definition that [an] independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. This definition has been amplified in subsequent cases but at no time has the basic principle been altered. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” (Emphasis in original; internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996). “It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995). With those principles and the clearly erroneous standard of review to guide our inquiry, we turn to the court’s memorandum of decision.

The court carefully detailed in its memorandum of decision the evidence it considered and found credible and convincing in determining that Allen exercised sufficient control over Shaw’s work for Shaw to be Allen’s employee. The court’s findings recognized that Shaw worked for Allen during the spring, summer and fall from early May, 1997, until May 25, 1999, the time of the accident, and understood that his work for Allen was not temporary in nature. Shaw never performed services for Allen’s clients without Allen or someone else from Allen’s business being present. Before work would start at the site, the defendants would discuss what had to be done. Allen drove Shaw to all of the job sites where Allen was performing landscaping services. Allen provided all landscaping tools and equipment used by Shaw at the work site. Allen chose all of the work sites. Shaw never interacted with the owners of the properties, nor did he ever speak to any of them. None of the property owners paid Shaw. All moneys paid for the landscaping services were paid to Allen. All money Shaw received as a result of his work came directly from Allen. Shaw worked an average of fifty hours per week, and Allen paid Shaw at the rate of $10 per hour.

In concluding that Shaw was Allen’s employee, the court particularly emphasized evidence showing that Allen retained the right to discharge Shaw at will, paid Shaw $10 per hour for the work he performed and provided Shaw with the tools that he needed to perform his job. “The retention of the right to discharge . . . is a strong indication that [the employer’s] relationship with [the worker] was one of employment. . . . The right to terminate [an employment] relationship without liability is not consistent with the concept of an independent contract. . . . Moreover, payment of a worker at an hourly rate ... is persuasive evidence that the status of the worker is that of an employee rather than that of an independent contractor.” (Citations omitted; internal quotation marks omitted.) Latimer v. Administrator, Unemployment Compensation Act, 216 Conn. 237, 249, 579 A.2d 497 (1990). Additionally, the fact that a worker did not have any significant investment in the materials or tools necessary to perform the job and that the necessary equipment or materials were furnished by the employer are factors that weigh in favor of a determination that the relationship between the plaintiff and Shaw was that of employer-employee and not that of an independent contractor. See id., 250. Even more important is the court’s finding that Shaw never performed services for Allen’s clients without Allen or someone else from Allen’s business being present. “[This] finding embodies the logical inference that the reporting and monitoring had a purpose and that, if the [services rendered to the employer] were unsatisfactory, [the employer] could, and would, intervene and take corrective measures. That right of intervention . . . evinces a right to control . . . .” Id., 250-51.

On the basis of our review of the record, we conclude that it was not clearly erroneous for the court to find that Allen exercised sufficient control over Shaw for Shaw to be Allen’s employee.

Ill

The defendants next argue that the court improperly determined that Shaw was not a temporary worker within the meaning of the insurance policy. Specifically, they argue that the court should have decided that the policy language was ambiguous because the court was presented with two separate, reasonable interpretations of the language. We disagree.

At the outset, we set forth our standard of review. The plaintiffs argument requires analysis of the terms of the insurance policy. “The [interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy.” (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000). The question of the parties’ intent is “[o]rdinarily . . . a question of fact [subject to appellate review under the clearly erroneous standard], ... If, however, the language of the contract is clear and unambiguous, the court’s determination of what the parties intended in using such language is a conclusion of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) CAS Construction Co. v. East Hartford, 82 Conn. App. 543, 552, 845 A.2d 466 (2004). Thus, in the absence of a claim of ambiguity, the interpretation of an insurance contract presents a question of law. See Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004).

Well established principles guide our analysis in determining whether the language of a contract is ambiguous. “[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so.” (Internal quotation marks omitted.) Detels v. Detels, 79 Conn. App. 467, 472, 830 A.2d 381 (2003). In contrast, “[a] contract is unambiguous when its language is clear and conveys, a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. .. . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).

Thus, to determine our standard of review, we must first ascertain whether the language of the insurance policy is ambiguous. Specifically, whether the term “temporary worker,” when read in the light of the contract as a whole, unambiguously includes persons engaged in the type of working relationship Shaw had with Allen. To answer that question, we turn to the relevant language of the insurance policy.

The policy in effect at the time of Shaw’s accident, “COMMERCIAL GENERAL LIABILITY COVERAGE FORM,” provided in relevant part:

“SECTION I — COVERAGES
“COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY . . .
“2. Exclusions
“This insurance does not apply to . . .
“d. Workers Compensation and Similar Laws
“Any obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law.
“e. Employer’s Liability
“ ‘Bodily injury’ to:
“(1) An ‘employee’ of the insured arising out of and in the course of:
“(a) Employment by the insured; or
“(b) Performing duties related to the conduct of the insured’s business . . .
“This exclusion applies:
“(1) Whether the insured may be liable as an employer or in any other capacity; and
“(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. . . .
“SECTION V — DEFINITIONS . . .
“5. ‘Employee’ includes a ‘leased worker’. ‘Employee’ does not include a ‘temporaiy worker’. . . .
“9. ‘Leased worker’ means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. ‘Leased worker’ does not include a ‘temporary worker’. . . .
“17. ‘Temporary worker’ means a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions.”

The defendants argue that the “temporary worker” definition is ambiguous because their interpretation differs from that of the plaintiff. The defendants in their brief construe the “temporary worker” definition to mean “a person (1) who is furnished to you to substitute for a permanent employee on leave or (2) who is furnished to you to meet seasonal workload conditions or (3) who is furnished to you to meet short-term workload conditions.” The plaintiff, however, construes “temporary worker” to mean “a person who is furnished to you to substitute for a permanent ‘employee’ on leave or [a person who is furnished to you] to meet seasonal or short-term workload conditions.”

Mindful that “[t]he court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . [and that] the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous”; (citation omitted; internal quotation marks omitted) United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 670; we conclude that the temporary worker language is clear and unambiguous. Under the terms contained in the four comers of the subject insurance contract, a temporary worker is a person who must be “furnished” to the insured to substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions. Thus, because we conclude that the contract is unambiguous, the defendants’ argument raises a question of law over which we exercise plenary review.

A plain reading of the relevant provisions of the insurance policy and an examination of the facts lead to the conclusion that Shaw was not a temporary worker as defined by the policy, because he was not “furnished” to Allen. The court found that Allen did not go to an employment agency, manpower service provider or any similar service to employ or to utilize Shaw’s services. Shaw was not employed by anyone who lent or furnished him to Allen as an employee. Thus, the court reasonably concluded that Shaw was not furnished to Allen within the definition of “temporary worker” and could not be a temporary worker under the insurance policy. Additionally, we observe that the temporary worker definition makes no grammatical sense without the “furnished by” language.

We conclude that the language of the contract is clear and unambiguous, that Shaw was not a temporary worker under the insurance policy and that the contract is to be given effect according to its terms.

IV

Finally, the defendants argue that the court improperly determined that statements made by Shaw contained in his workers’ compensation claim constituted an admission. We disagree.

We must determine whether a statement made in a workers’ compensation claim, when entered into evidence in a civil action, may be considered as an admission. We conclude that it may. “Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact.” Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 621, 717 A.2d 1211 (1998). The trier of fact is free to give as much weight to such an admission as, in the trier’s judgment, it merits, and need not believe the arguments made regarding the statement by one side or the other.

“The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions axe only evidence to be accepted or rejected by the trier.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 695 n.6.

“Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986). “The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader.” (Internal quotation marks omitted.) Cross v. Hudon, 42 Conn. App. 59, 65, 677 A.2d 1385, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996). “Ajudicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 695 n.7.

In contrast with ajudicial admission, which prohibits any further dispute of a party’s factual allegation contained in its pleadings on which the case is tried, “[a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it.” (Internal quotation marks omitted.) Willow Funding Co., L.P. v. Grencom Associates, supra, 246 Conn. 621. Thus, an evidential admission, “while relevant as proof of the matter stated . . . [is] not conclusive.” (Citation omitted.) Remkiewicz v. Remkiewicz, 180 Conn. 114, 118, 429 A.2d 833 (1980). “As a general rule statements in withdrawn or superseded pleadings, including complaints, maybe considered as evidential admissions [of] the party making them, just as would any extrajudicial statements of the same import.” (Internal quotation marks omitted.) Danko v. Redway Enterprises, Inc., 254 Conn. 369, 375, 757 A.2d 1064 (2000).

We conclude that the statement in Shaw’s workers’ compensation claim indicating that he was Allen’s employee was an evidential admission. As such, it properly was the subject of evaluation by the trier of fact when it made findings from which it drew its conclusions. The court’s reliance on Shaw’s statement in his workers’ compensation claim as evidence that Shaw was Allen’s employee was neither unfairly prejudicial to Shaw nor clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that in the insurance policy issued to Allen by the plaintiff, § I (2) (d) specifically excluded from coverage “[a]ny obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law.”

       See Shaw v. Allen, Superior Court, judicial district of Middlesex, Docket No. 90717 (November 18, 1999).