text:
    Nancy W. Vickery v. Harold R. Vickery
    (9538)
    Dupont, C. J., Foti and Lavery, Js.
    Argued May 1
    decision released August 27, 1991

      Norman J. Voog, with whom, on the brief, was Allen Gary Palmer, for the appellant (defendant).

      Lawrence D. Church, with whom, on the brief, was Cheryl Brienza Cook, for the appellee (plaintiff).

      Wilbur Ward Dinegar, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Thomas H. Hrusa, assistant attorney general, for the appellee (state).
   Lavery, J.

The defendant appeals from the order of the trial court modifying the amount of child support awarded to the plaintiff. The defendant claims that the trial court was incorrect (1) in not making the modification order retroactive to the date the motion for modification was filed or, in the alternative, to the date the modification motion first appeared on the court calendar, (2) in not finding that the child support guidelines are void because they were not properly promulgated under the Uniform Administrative Procedure Act (UAPA), (3) in applying the child support guidelines strictly without applying the criteria of General Statutes §§ 46b-82, 46b-84 and 46b-86 by giving consideration only to the needs of the plaintiff, (4) in abusing its discretion by ordering the defendant to pay $102 a week in accordance with the child support guidelines, despite the financial affidavits submitted by the parties and the court’s factual findings to the contrary.

The undisputed facts pertinent to the resolution of this case are as follows. In July, 1985, a judgment of dissolution of marriage was granted to the plaintiff. The defendant did not appear at the dissolution hearing, was not represented by counsel and failed to file a financial affidavit. During the hearing, the plaintiff represented to the court that she had no income and that the defendant earned between $630 and $720 per week. As part of the dissolution orders, the court required that the defendant pay to the plaintiff $400 per week, $200 in alimony and $100 in child support for each of the two minor children. The defendant was served with notice of the judgment and a return of service of that notice was made. Although the defendant made substantial payments to the plaintiff over the next three years, the sum of the payments did not represent full payment of the amounts ordered by the court.

In November, 1988, the defendant filed a motion to modify alimony and support that was denied by the family court magistrate. The orders of the magistrate are on appeal in the Superior Court and are not the subject of this appeal. The defendant brought a second motion to modify on January 22,1990. This motion was first placed on the court calendar for a hearing on February 20, 1990. The motion was ultimately heard over a period of three days in August, 1990, and a decision was rendered on August 30,1990. The court found that there had been a material change of circumstances since the date of dissolution, that at the time of the dissolution the defendant’s earnings were between $630 and $720 per week, and that the plaintiff had no earnings. The court determined that at the time of the 1990 hearing on modification, the plaintiff was earning $450 per week and the defendant earned $290 per week. The court also found that the defendant did not voluntarily deplete his earnings nor did he quit his employment and that the reduction of his income was not intentional. In its decision, the court specifically stated that it had considered the relevant statutory criteria, namely §§ 46b-84 and 46b-86, and that applying the facts of the case to those criteria it could not find that the application of the child support guidelines would be inequitable or inappropriate. Accordingly, the trial court reduced the alimony to $1 per year and reduced the child support payments to a total of $102 per week for the two children. In addition, the court ordered that the defendant pay $20 a week on the arrearage. The trial court refused to make a retroactive modification of the alimony and support either to the date of the filing of the motion or to the date that motion was first set down on the court calendar for a hearing.

I

As of August 30,1990, the long-standing rule of law in effect was that a court’s order modifying alimony and child support may not be retroactive. Sanchione v. Sanchione, 173 Conn. 397, 406, 378 A.2d 522 (1977); Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989); Paddock v. Paddock, 22 Conn. App. 367, 373, 577 A.2d 1087 (1990). These cases hold that modification must be prospective in nature and can be effective only from the date of the hearing on the motion.

In 1990, however, the Connecticut legislature passed an amendment to § 46b-86 (a) that provides, inter alia, “[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” This amendment became effective on October 1,1990. Because this amendment was not in effect at the time of the trial court’s ruling, the court could not exercise any discretion to modify child support retroactively. Its decision, therefore, was correct.

II

The defendant next claims that the trial court was incorrect in its application of the child support guidelines. He argues that the guidelines are not contained in any statutory act or rule of the Superior Court and have not been published in the Connecticut Law Journal as an administrative regulation pursuant to General Statutes § 4-173 and are, therefore, void.

We disagree and conclude that the guidelines are valid because No. 89-203 of the 1989 Public Acts (P. A. 89-203) adopted and then incorporated the guidelines by reference into statutory law.

In 1984, the United States Congress passed the Child Support Enforcement Amendments; Pub. L. 98-378; which required, among other things, that the states establish child support guidelines by law or by judicial or administrative action. Under that legislation, the states were given the mandate of making the guidelines available to “all judges and other officials who have the power to determine child support awards within the states.” In response to the federal act, our legislature enacted No. 85-548 of the 1985 Public Acts, which established a commission to develop the child support guidelines and which provided that the guidelines be made available to the judges but not be binding on them. The commission created guidelines that were not promulgated in accord with the UAPA but were put into effect by the commission on January 1, 1987.

In 1988, Congress revised the Child Support Enforcement Amendments by mandating that the guidelines serve as a “rebuttable presumption” of the correct amount of support to be awarded unless the decision maker makes a specific finding that the application of the guidelines would be unjust. 42 U.S.C. § 667 (b) (2). Congress also required that the guidelines be reviewed every four years to ensure the appropriateness of their continued application. 42 U.S.C. § 667 (a). In 1989, Connecticut passed P.A. 89-203 establishing a new commission for child support guidelines charged with the responsibility of reviewing the established criteria for the guidelines and issuing revised guidelines not later than January 1,1991, and every four years thereafter.

Section 2 of P.A. 89-203 (a) provides, in pertinent part, that the guidelines promulgated pursuant to § 8 of Public Acts 1985, No. 85-548 (P.A. 85-548), and any updated guidelines, “shall be considered in all determinations of child support amounts within the state. ...”

The defendant argues that the child support commission created by P.A. 85-548, § 8, is an agency of the state, as agencies are defined by General Statutes § 4-166, and, therefore, that its guidelines constitute regulations that must be promulgated in accordance with the UAPA. The defendant asserts that the state could have set the guidelines through judicial rules or specific legislative enactment but chose instead to create a commission (an agency of the state) and, thus, the guidelines must be promulgated in accordance with the procedures set forth in the UAPA.

The plaintiffs argue that the commission is not an agency subject to the UAPA, that the guidelines are not regulations as defined by § 4-166 (13) because P.A. 85-548 rendered the guidelines nonbinding, and that, even if the commission is an agency as defined by the UAPA, 1987, the two year statute of limitations to contest a regulation set forth in General Statutes § 4-168 (h) controls because the guidelines were effective on January 1.

It is unnecessary for us to delve into whether the commission created by P.A. 85-548 is an agency, whether the guidelines are regulations or whether the two year statute of limitations applies. The fact that the General Assembly incorporated the guidelines by reference in P.A. 89-203 and mandated that the guidelines be considered renders moot any argument that the guidelines are void or invalid. The guidelines became statutory law by their incorporation into P.A. 89-203 and will remain in effect until new guidelines are promulgated. Thus, in August, 1990, at the time of the hearing, the guidelines developed pursuant to P.A. 85-548 were valid.

Ill

Finally, the defendant claims that it is impossible for the court to apply the mandates of §§ 46b-84 and 46b-86 and apply the mandates of the guidelines at the same time. This claim is without merit.

General Statutes § 46b-215b (b) provides that in any proceeding for the establishment or modification of a child support award, the guidelines “shall be considered in addition to and not in lieu of the criteria for such awards in sections 46b-84, 46b-86 . . . .”

In addition, the guidelines themselves list several factors that may be relevant to the determination of support obligations including the age of the children and other reasonable considerations. Battersby v. Battersby, 218 Conn. 467, 471-72, 590 A.2d 427 (1991). General Statutes § 46b-215b (a) provides that a “specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case . . . shall be sufficient to rebut the presumption in such case.” Simply put, the statutes and guidelines are compatible.

In this case, the court found the guidelines under P.A. 89-203 to be equitable and appropriate and specifically stated that it had considered the relevant statutory-criteria, namely §§ 46b-86 and 46b-84. A review of the transcript, the exhibits and the record reveals that in making the award of support for the two minor children, the court exercised its discretion properly in accordance with the law.

The defendant’s fourth claim challenging the court’s factual findings is redundant and raises issues already addressed in this opinion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state, having made aid to families with dependent children payments to the plaintiff, is also a party to this appeal and has filed a separate brief.

       Connecticut’s version of the Uniform Administrative Procedure Act is codified at General Statutes §§ 4-166 through 4-189.

       General Statutes § 46b-82 provides: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. . . . In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employ-ability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”
      The pertinent part of General Statutes § 46b-84 provides: “(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.
      “(b) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”
      General Statutes § 46b-86 provides in relevant part: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1,1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Sharie H. Salaman v. Julio Salaman
    (9322)
    O’Connell, Norcott and Foti, Js.
    Argued June 3
    decision released August 27, 1991

      Judith A. Busch, for the appellant (plaintiff).

      Mark Kostecki, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial court’s denial of her motion for modification of orders of child support.

The following facts are necessary for the consideration of this claim. The marriage of the parties was dissolved in June, 1984. At that time the plaintiff was earning $165 per week and the defendant’s salary was $445.25 per week. The court ordered that the defendant pay $25 per week as child support for the parties’ minor child, age 4. The plaintiff has since remarried, given birth to another child, and relocated to another state. She earns $80 per week baby-sitting and does not work outside the home so that she may care for her infant. The defendant, a firefighter for the city of Hartford, has had a salary increase to $490 per week. In denying the plaintiff’s motion, filed April 3, 1990, the trial court on June 19, 1990, found that the plaintiff had not shown a substantial change in circumstances not contemplated by the parties.

The plaintiff challenges the action of the court both in failing to find a substantial change in circumstances and in failing to consider the child support guidelines as required under Public Acts 1989, No. 89-203, now codified at General Statutes §§ 46b-215a and 46b-215b.

“ Tn a modification action, the decision of the trial court is attributed great weight and every consideration must be given in support of its correctness. . . . The action of the trial court will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts.’ ” (Citation omitted.) Richard v. Richard, 23 Conn. App. 58, 62, 579 A.2d 110 (1990). This court will not substitute its judgment for that of the trial court, which has broad discretion in domestic relations matters. Borkowski v. Borkowski, 25 Conn. App. 1, 2, 591 A.2d 1278 (1991).

After review of the briefs and record in this matter we conclude that the trial court did not abuse its discretion. The court’s finding that there was no substantial change in circumstances was reasonable.

The plaintiff further argues that the court failed to consider the child support guidelines as required under Public Acts 1989, No. 89-203. That act, effective October 1, 1989, creates a rebuttable presumption that when the amount of child support is determined in accordance with the guidelines, it is the correct determination of such support.

We will ordinarily consider only claims that are distinctly raised and decided in the trial court in the first instance. Practice Book § 4185; Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). Since the plaintiff did not raise the claim of a substantial deviation from the guidelines either in her motion or at the hearing on her motion, and raises it for the first time on appeal, we will not address this claim.

The judgment is affirmed.

       Public Acts 1990, No. 90-188, effective October 1, 1990, which authorizes the modification of child support orders based on a substantial deviation from the Connecticut child support guidelines, is applicable “to all existing orders, not merely to those entered after October 1,1990.” Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991).
      “Both the ‘substantial change of circumstances’ and the ‘substantial deviation from child support guidelines’ provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions.” Id., 718. In Turner, although the ground of substantial deviation from the guidelines was not raised by the motion to modify, it was raised at the hearing and the defendant waived any procedural objection based on a lack of notice. Id., 705 n.3.


author: Landau, J.

text:
    State of Connecticut v. Anthony Hopkins
    (8620)
    Spallone, Landau and Heiman, Js.

      Argued March 18
    decision released August 27, 1991

      David T. Grudberg, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The defendant claims that (1) the trial court improperly-charged the jury on accessorial liability, (2) the trial court improperly responded to a question presented by the jury concerning the defendant’s liability as an accessory, and (3) the trial court’s charge on accessorial liability was improper because it contained a misleading example. The judgment of the trial court is affirmed.

The jury reasonably could have found the following facts. The victim lived in a one room apartment in Bridgeport. One morning the defendant knocked on the victim’s door, identified himself, and was admitted by the victim. The defendant was holding a shotgun and was accompanied by Kenneth Dennis. The defendant and the victim struggled for the gun and the defendant used the gun to choke the victim. The defendant held the victim while Dennis hit the victim about the head and stabbed him with a pair of scissors. The defendant took the victim’s ring and watch and Dennis took the victim’s money.

The defendant was charged in a substitute information with robbery in the first degree under General Statutes § 53a-134 (a) (4), burglary in the first degree under General Statutes § 53a-101 (a) (2), and assault in the second degree pursuant to General Statutes § 53a-60 (a) (2). The jury returned a guilty verdict on the charges of burglary in the first degree and assault in the second degree and acquitted him of robbery in the first degree.

I

The defendant first claims that the trial court improperly charged the jury on the principles of accessorial liability, thus impermissibly broadening the theory of liability beyond the allegations of the pleadings. On the basis of State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), the defendant claims that because he was charged in both the original and the substitute informations as a principal, he, therefore, could not be viewed as an accessory to the crime. We do not agree.

In State v. Steve, supra, 40, the state had alleged in both its substitute information and its bill of particulars that the defendant was being prosecuted as a principal. In addition, the state orally affirmed, pursuant to the defendant’s request, that the defendant was the principal with regard to the charges. Id., 41-42. Only after the state had finished presenting evidence in its case-in-chief did the defendant himself testify that another person had actually committed the crime. On appeal, this court concluded, and the Supreme Court affirmed, that the trial court improperly charged the jury on accessorial liability. In reaching this conclusion, the Supreme Court determined that the court’s instruction was improper because it was “not in substantial conformity with either the allegations in the bill of particulars or the evidence in the state’s case-in-chief . . . .” Id., 46.

First, we note that a bill of particulars must be read in conjunction with the information that the defendant has asked to be particularized. The purpose of a bill of particulars and the information is to inform the defendant of the charge against him “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise.” State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). Although the bill of particulars does not become part of the information, it does limit the state to proving that the defendant committed an offense “in substantially the manner described.” Id., 154-55.

It is well established in this state that there is no such crime as “ ‘being an accessory.’ ” State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute, General Statutes § 53a-8, merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). “[A] defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.” State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 465 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). Therefore, the fact that the defendant was not formally charged as an accessory does not preclude his being convicted as such; State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986); and a defendant who is charged with an offense should be on notice that he may be convicted as an accessory. State v. Steve, supra, 43-44.

This case is distinguishable from State v. Steve, supra, and is governed by the laws regarding accessorial liability. In Steve, accessorial liability was not alleged by the state in its bill of particulars or proved in its casein-chief. In this case, although the defendant requested a bill of particulars regarding the original information that was withdrawn without prejudice, the defendant did not submit a request for a bill of particulars after the state filed its substitute information. In addition, the defendant had information that should have alerted him to the heightened possibility that he could be convicted as an accessory. See id. The state’s first witness, the victim, testified that the defendant held him while his companion hit him in the head and stabbed him with the scissors. This point was repeated and refined by defense counsel’s cross-examination of the victim. After the victim testified, the court stated that it would charge the jury on the law concerning liability of an accessory. In addition, in response to the defendant’s motion for discovery and inspection, the state furnished a police officer’s incident report. This document reports that the defendant was not the individual who inflicted the wounds on the victim. The trial court properly charged the jury on accessorial liability.

II

The defendant next claims that the trial court inadequately responded to a question from the jury during its deliberations regarding the defendant’s potential liability as an accessory.

The defendant first asserts that the court’s response was long and unfocused. Although the defendant failed to preserve this claim in the trial court, he claims that the response implicates his “constitutional right to due process and a fair trial” and seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

“ ‘We generally do not consider a claimed error regarding the giving of or failure to give an instruction “unless the matter is covered by a written request to charge or exception has been taken . . . immediately after the charge is delivered.” . . .’’’(Citations omitted.) State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987). The defendant’s claim regarding the nature of the supplemental charge should have been raised at its conclusion so as to alert the court to any claims of error while there was still an opportunity for correction. State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). Although a court’s failure to respond to a jury question rises to the level of a constitutional violation; State v. Fletcher, 10 Conn. App. 697, 705, 525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370 (1988); the defendant’s assertion that the court’s supplemental charge was not responsive presents a different issue. An unpreserved claim does not warrant special consideration simply because it bears a constitutional label. State v. Golding, supra, 240.

The defendant also asserts, however, that the court failed to emphasize the element of intent required by the accessory statute. The alleged failure to charge on the element of the intent of an accessory presents an issue of constitutional magnitude and merits review. State v. McCalpine, 190 Conn. 822, 831, 463 A.2d 545 (1983).

The jury inquired: “If K.D. [Kenneth Dennis] entered the premises without permission, but if [the defendant] did have permission, would we conclude that [the defendant], by law of accessory, was a party to an entry without permission?” In response, the court explained to the jury that the phrase “would we conclude” prohibited it from simply answering “yes” or “no” because such an answer would direct the jury’s decision. The court, therefore, responded by instructing the jury to consider all the facts and circumstances and to consider its previous charges, including the charge pertaining to the law concerning liability of an accessory.

In evaluating the propriety of a supplemental charge, we must examine both the main and supplemental charge as a whole. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986). In appeals involving a constitutional question, this court must determine whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989).

A review of the main and supplemental charges reveals that the court thoroughly instructed the jury on the element of intent and the law of accessory, including the requisite intent of an accessory. Viewing the charges in their entirety, we conclude that there is no reasonable possibility that the jury was misled regarding an accessory’s requisite intent.

Although the defendant failed to preserve properly his third claim, that the trial court’s charge on accessorial liability contained a misleading example, we note that because this example was one small segment of the court’s charge on accessorial liability, the defendant would not prevail based on the foregoing reasons.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 provides in pertinent part: “burglary in the first degree: class B felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-60 provides: “assault in the second degree: class d felony, (a) A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”


author: O’Connell, J.

text:
    Fiske H. Ventres v. Inland Wetlands and Watercourses Commission of the Town of Burlington et al. Fiske H. Ventres v. Planning and Zoning Commission of the Town of Burlington et al.
    (9357)
    (9556)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 29
    decision released August 27, 1991

      Edward F. Scully, for the appellant (plaintiff in both cases).

      Charles W. Bauer, for the appellees (defendants in each case).
   O’Connell, J.

This case involves the trial court’s dismissal of related appeals from two Burlington land use agencies. One appeal originated from the decision of the Burlington inland wetlands and watercourses commission (wetlands agency) denying the plaintiff’s application for a permit to conduct regulated activities on land he sought to develop as a subdivision. The other appeal emanated from the decision of the Burlington planning and zoning commission (commission) decision denying the plaintiff’s subdivision application. We granted certification to hear the plaintiff’s appeal of the commission’s decision pursuant to General Statutes §§ 8-8 (o) and 8-9. No certification was required to hear the wetlands agency appeal because, pursuant to General Statutes § 22a-34, the plaintiff was entitled to a direct appeal.

The following facts are relevant to these appeals. The wetlands agency held a public hearing on the plaintiff’s application and received extensive and conflicting evidence on the impact of the proposed project on the wetlands. The wetlands agency denied the application, giving, inter alia, the following reason for its action: “Inadequate soil erosion and sediment control plan presented for the proposed subdivision, as noted by J. Eric Sherer, district conservationist USD A—soil conservation service, in a report dated November 16, 1988.”

Subsequently the commission based its denial of the plaintiff’s subdivision application on an unfavorable report it received from the wetlands agency. See General Statutes § 8-26. The trial court found that there was substantial evidence before the wetlands agency to support its conclusion and dismissed the appeal.

The plaintiff’s claims relative to the wetlands agency decision are subsumed under the general objection that the wetlands agency did not have substantial evidence before it to deny his permit. “In determining whether an administrative finding is supported by ‘substantial evidence,’ a court must defer to the agency’s assessment of the credibility of witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). Local agencies are granted broad discretion because “ ‘they are the closest to the circumstances and conditions which “create the problem and shape the solution.” . . .’ ” (Citations omitted.) Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). Although the issue before the wetlands agency was disputed, the trial court could not substitute its judgment for that of the agency. New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). If any of the stated reasons is sufficient to support the wetlands agency’s actions, it must be sustained. Frito-Lay, Inc. v. Planning & Zoning Commission, supra, 576. Thus the trial court’s dismissal of the plaintiff’s appeal was proper because the wetlands agency based its denial on the soil erosion report.

The plaintiff also claims that the commission improperly denied approval of the subdivision application because it never received a final decision from the wetlands agency. In reviewing the appeal from the commission’s decision we turn to General Statutes § 8-26, which reads in part as follows: “The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. ... In making its decision the commission shall give due consideration to the report of the inland wetlands agency.” We are not persuaded by the plaintiff’s argument that this statute required both a report and a final decision. The trial court properly concluded that the wetlands agency’s final decision was contained in the report that the commission received and therefore satisfied the statute.

The judgment of the trial court is affirmed in each case.

In this opinion the other judges concurred.

       In the wetlands agency appeal the plaintiff claims the trial court (1) improperly applied the substantial evidence standard, (2) reached a legal conclusion beyond its scope of review, (3) improperly relied on a United States department of agriculture report, and (4) misapplied General Statutes § 22a-41.

       In the commission appeal the plaintiff claims that the trial court improperly determined that the wetlands agency report constituted a final decision required by General Statutes § 8-26.

       Fiske H. Ventres died while these appeals were pending in this court. Jennifer Ventres Filler, executrix under his will, was substituted as the party plaintiff.


text:
    State of Connecticut v. Billy Waller, Jr.
    (9308)
    Foti, Landau and Heiman, Js.
    Argued April 22
    decision released August 27, 1991

      Steven D. Brown, with whom, on the brief, were Jeffrey Heilman and Rosina Francia, special public defenders, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Kevin Dunn, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the trial court improperly denied his motion to suppress as evidence eight packets of narcotics. He asserts that pursuant to article first, § 7, of the Connecticut constitution the warrantless search of his car, although contemporaneous with his arrest, was unreasonable because he did not have access to his car, and that no justification existed for a warrantless search. We affirm the judgment of the trial court.

The evidence offered at the suppression hearing reasonably supports the following facts. Police officers on a routine patrol in Father Panik Village observed suspicious behavior by the driver of a car. On running a check of the license plate, the officers were notified of an outstanding warrant for the arrest of the car’s owner, the defendant. The officers stopped the car, verified the defendant’s identity, and notified him of the outstanding arrest warrant. After reconfirming the warrant, the police arrested and handcuffed the defendant and placed him in a police cruiser. In order to inventory, secure and transport the defendant’s car, one of the officers opened the driver’s side door and saw, in plain view, on the armrest, a glassine packet. In the storage area below the armrest the officer saw a brown paper bag. The officer opened the bag and found seven glassine packets.

The trial court concluded that the search was lawful and denied the defendant’s motion to suppress the eight packets. The court rendered its decision after reviewing the evidence and determining that the stop of the defendant’s car was proper, and that the defendant was in the police car at the scene of the arrest while the search was being conducted. The court further stated that even if the search were found to be unlawful, it would, nonetheless, be proper under the inevitable discovery rule.

The defendant argues that the search of his vehicle cannot be upheld as a search incident to arrest because, in the particular circumstances of this case, article first, § 7, of the Connecticut constitution accords him greater protection than is available to him under the fourth amendment to the United States constitution. Specifically, he contends that article first, § 7, of the Connecticut constitution should not be interpreted to permit a vehicle search incident to an arrest when the arrestee is seemingly unable to gain access to the vehicle.

The defendant relies on State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), to support his proposition that our Supreme Court has been willing to restrict the scope oí New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). Both the fourth amendment to the United States constitution and article first, § 7, of our state constitution create a reasonableness standard that proscribes unreasonable searches and seizures. State v. Dukes, 209 Conn. 98, 121, 547 A.2d 10 (1988). Although a “ ‘search conducted without a warrant issued upon probable cause is “per se unreasonable . . .” ’ (emphasis in original); State v. Badgett, supra, 423; a search incident to a lawful arrest is a well recognized exception to this rule. Id., 425.

The facts of this case fall squarely within the boundaries established in State v. Badgett, supra, and its progeny. In addition, the state constitution has been construed to allow warrantless searches incident to lawful arrests. State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Lizotte, 11 Conn. App. 11, 23, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). The defendant’s claim, therefore, is without merit.

The judgment is affirmed.

       The defendant was also convicted of one count of failure to appear in the first degree in violation of General Statutes § 53a-172 (a).


author: Daly, J.

text:
    State of Connecticut v. Christopher Taft
    (9136)
    Spallone, Daly and Heiman, Js.

      Submitted on briefs May 29
    decision released August 27, 1991

      Patricia Buck Wolf, special public defender, and Grace A. Luppino, special public defender, filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, Elpedio Vitale, assistant state’s attorney, and Marjorie Allen Dausler, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 and of carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims (1) that there was insufficient evidence to find him guilty beyond a reasonable doubt of both crimes, and (2) that the trial court incorrectly allowed a witness to testify about alleged threats made against the witness before testifying at trial, thereby prejudicing the defendant. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In the early morning hours of June 10,1987, the victim, Sylvester Gardner, Jr., was parked in a car with his former girl friend, Robin Stanford, in front of her residence at 36 Tilton Street in New Haven. While sitting in the car with the window rolled down, Gardner felt something touch his head and then heard a voice say “I ought to blow your . . . brains out.” Gardner turned and saw a black gun pointed at him from outside the car. Gardner identified the voice as belonging to the defendant, with whom he was acquainted. Gardner testified that the length of the gun’s barrel was less than twelve inches. Stanford then left the car and was followed by the defendant as she returned to her apartment. As Gardner was driving away, the defendant pointed his gun at him. Gardner saw three flashes from the gun and heard three pops, but none of these shots hit him or his car.

Gardner then decided to return to Stanford’s apartment. Outside Stanford’s apartment, Gardner saw the defendant climbing up the front porch of the apartment. While running upstairs to Stanford’s apartment Gardner heard screams. As Gardner approached the apartment, he saw the defendant leave the apartment and run past him. Gardner then pursued the defendant, whereupon the defendant turned and fired a shot at Gardner from about thirty feet. Again, Gardner saw a flash and heard a pop but was not hit.

Officer Brian Donnelly of the New Haven police department arrived at the scene. After questioning Gardner and other witnesses about the incident, Donnelly searched the area for a .38 caliber snub nose revolver but was unable to find it. Donnelly was not able to find any spent bullet casings from the described gunfire, nor was he able to find any bullets or bullet holes in the victim’s car. Donnelly testified that casings from a .38 snub nose revolver would have to be manually ejected from the gun’s cylinder. Donnelly also testified that the failure to find bullet casings or holes was common when investigating a shooting scene. The defendant possessed neither a state nor a city permit to carry a pistol.

I

The defendant claims that there was insufficient evidence to sustain a verdict of guilty of either crime and that the trial court should have granted his motion for judgment of acquittal.

When reviewing claims of insufficient evidence, this court employs a two part analysis. “First, we review the trial evidence, construing it in the most favorable manner reasonably possible to support the jury’s verdict. Second, we ascertain whether any jury could reasonably have concluded that the cumulative effect of the established evidence, and the inferences reasonably drawn from those evidentiary facts, established guilt beyond a reasonable doubt.” State v. Bowens, 24 Conn. App. 642, 646, 591 A.2d 433 (1991); State v. King, 216 Conn. 585, 600-601, 583 A.2d 896 (1990). It should be noted that “each essential element of the crime must still be proven beyond a reasonable doubt . . . and a jury may not speculate or resort to conjecture but may draw only reasonable logical inferences from the proven facts.” (Citations omitted.) State v. Bowens, supra; State v. King, supra.

A

The defendant was convicted of criminal attempt to commit assault with intent to cause serious physical injury to another by means of a deadly weapon. General Statutes §§ 53a-49, 53a-59 (a) (1). General Statutes § 53a-49 (a) (2) requires the state to prove that the defendant “intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” The defendant argues that the state failed to prove beyond a reasonable doubt that his actions constituted a substantial step in a course of conduct intended to result in the commission of an assault.

An “attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption . . . or for other extrinsic cause.” State v. Wilson, 30 Conn. 500, 506 (1862); State v. Turner, 24 Conn. App. 264, 269, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991). The defendant’s actions “must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the [defendant] at least to be possible of commission by the means adopted.” State v. Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1959); State v. Turner, supra. In order to be considered a “substantial step,” the defendant’s acts must be “ ‘strongly corroborative of the actor’s criminal purpose.’ . . . ‘The application of this standard will, of course, depend upon the nature of the intended crime and the facts of the particular case. . . . [T]his standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime.’ ” (Citations omitted.) State v. Green, 194 Conn. 258, 276-77, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Turner, supra, 269-70; State v. Washington, 15 Conn. App. 704, 717, 546 A.2d 911 (1988).

Our review of the evidence satisfies us that any rational trier of fact could have found ample facts to support proof of the essential elements of the crime of criminal attempt to commit assault beyond a reasonable doubt.

B

The defendant also challenges the sufficiency of the evidence as to his conviction of carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the state failed to prove beyond a reasonable doubt that he was carrying a firearm having a barrel less than twelve inches in length. According to General Statutes § 29-27 a pistol or revolver constitutes “any firearm having a barrel less than twelve inches in length.” This statutory definition of a pistol or a revolver is specifically applicable to § 29-35, the statute under which the defendant was convicted. State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). Because the state must prove each element of an offense beyond a reasonable doubt, we agree with the defendant that the state must prove that the gun used by him met this statutory definition. State v. Garcia, 7 Conn. App. 367, 375, 509 A.2d 31 (1986).

There is sufficient evidence in this case to support the defendant’s conviction under § 29-35. The state offered evidence to prove that the defendant did not have a state or city permit to carry a pistol. Furthermore, the defendant’s reliance on State v. Brown, supra, is misplaced. In that case, the defendant’s conviction under § 29-35 was reversed because the state failed to prove that the pistol’s barrel was less than twelve inches in length. In State v. Brown, supra, 260-61 n.5, as in this case, the pistol was never recovered. The witness in State v. Brown, supra, however, described the pistol only “ ‘as a short one, which “didn’t have a long barrel.” ’ ” Thus, in State v. Brown, supra, there was no evidence that the barrel of the pistol was less than twelve inches. In contrast, Gardner had a clear view of the pistol and testified specifically that the barrel was less than twelve inches in length.

When addressing a claim of insufficiency of evidence we “will not re weigh the evidence nor resolve questions of the credibility of witnesses, but will look to that evidence and the reasonable inferences drawn therefrom which support the findings of the jury.” State v. McCarthy, 197 Conn. 166, 179, 496 A.2d 190 (1985); State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983). The evidence in this case was clearly sufficient to support the defendant’s conviction.

II

The defendant’s final claim concerns the trial court’s admission of testimony about threats made to Gardner before he testified at trial. The following facts are relevant to this claim.

Gardner testified that the evening before the trial began, he had stopped at a convenience store in the Fair Haven section of New Haven. Upon leaving the convenience store, he was approached by two men. The two men shoved Gardner against his car and said, “we have a message from [the defendant], don’t show up tomorrow.” Gardner did not know either of these men. He testified that no one except his parents knew that he would be testifying in this case. The defendant objected to this testimony, claiming it was irrelevant and prejudicial. The trial court admitted the testimony, finding it was relevant to the defendant’s consciousness of guilt.

In order to admit threats made against a witness, the defendant must be “linked in some way to the making of the threats.” State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990). If the threats are linked to the defendant, they are admissible “either on the theory that such conduct is inconsistent with the defendant’s claim of innocence or on the theory that the making of such threats evinces a consciousness of guilt.” Id. Before admitting such evidence, the trial court must determine that “its probative value outweighs its prejudicial tendency.” State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).

After reviewing the record, we conclude that the trial court did not abuse its discretion in allowing Gardner to testify about the threats he received. Furthermore, the trial court carefully and specifically instructed the jury as to the limited purpose for which the jury could consider the evidence of the threats. A jury is presumed to follow the trial court’s instructions. State v. Bowens, supra, 655.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
      General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything whieh, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person . . . without a permit to carry the same . ”

       Genera] Statutes § 29-27 provides in pertinent part: “The term ‘pistol’ and the term ‘revolver,’ as used in sections 29-28 to 29-88, inclusive, mean any firearm having a barrel less than twelve inches in length.”


author: Norcott, J.

text:
    In re Valerie D.

    (9140)
    Spallone, Norcott and Lavery, Js.
    Argued April 26
    decision released August 27, 1991

      Sara R. Martin, for the appellant (respondent mother).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Jewel A. Gutman, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

   Norcott, J.

The respondent mother appeals from the judgment of the trial court finding her daughter, Valerie, to be a neglected child and terminating her parental rights with respect to that child. She challenges, in essence, the court’s (1) ruling that her conduct while she was pregnant with Valerie can support a neglect petition or a petition for termination of parental rights and (2) factual findings. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. Valerie was born on July 26, 1989. The birth was complicated by her passage of stool, or meconium, prior to delivery. If a baby inhales and swallows the meconium, severe, life threatening respiratory problems can result. In Valerie’s case, although meconium aspiration did not occur, the passage of stool was most likely caused by the respondent’s ingestion of cocaine after her water had broken, some eight to ten hours before delivery.

When Valerie was born she exhibited many classic signs of cocaine withdrawal. She was jittery, shaking, crying hard, breathing with difficulty and making no eye contact. A urine test showed that Valerie had been born with cocaine in her bloodstream.

On the basis of these facts, the department of children and youth services filed coterminous petitions for neglect and for termination of the respondent’s parental rights on August 1,1989. The petitions alleged that Valerie was abused, neglected and uncared for as a result of the respondent’s prenatal drug use and sought termination of the respondent’s parental rights because “the child has been denied by reason of act or acts of commission or omission, the care, guidance or control necessary for [her] physical, moral or emotional well being” in that she had sustained “nonaccidental or inadequately explained serious physical injury.” The department later amended its petitions, additionally claiming that Valerie had been abandoned and that she did not have an ongoing parent-child relationship with the respondent.

After a hearing held over the course of several days between December 13, 1989, and February 21, 1990, the trial court rendered its decision orally from the bench on March 28, 1990, finding Valerie to be a neglected child under General Statutes § 46b-120 and terminating the respondent’s parental rights pursuant to General Statutes §§ 17a-112 (formerly § 17-43a) and 45a-717 (formerly § 45-61f). In an articulation filed on July 30,1990, the court further found that Valerie was abused, neglected and uncared for as those terms are used in § 46b-120. The court also terminated the respondent’s parental rights on the basis of its findings that Valerie had sustained “nonaccidental or inadequately explained serious physical injury” as a result of the respondent’s prenatal drug use; see General Statutes § 17a-112 (b) (3); and that no ongoing parent-child relationship existed between Valerie and the respondent. See General Statutes § 17a-112 (b) (4). Finally, the court, relying on authority from other jurisdictions, noted that “[t]he fact that the act resulting in the detriment to the child occurred prior to birth does not require the conclusion that the child’s condition at birth was other than that of a neglected child.” (Emphasis in original.) The respondent appeals from the trial court’s ruling.

The respondent first claims that the trial court improperly determined that her conduct while pregnant can support a petition for neglect or termination of parental rights. This issue has yet to be decided in this state. In order for us to answer this question, we must examine our statutes allowing petitions to be brought for neglect and termination of parental rights.

General Statutes § 46b-120 defines a neglected child as one who “(i) has been abandoned or (ii) is being denied proper care and attention, physically, educationally, emotionally or morally or (iii) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (iv) has been abused.” A child may be found uncared for under that statute “who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires.” The statute defines “child” as “any person under sixteen years of age.”

General Statutes § 17a-112 provides, in pertinent part, that parental rights may be terminated if “(3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.” The definition of “child” applicable to that statute, found in General Statutes § 17a-l, is identical to that of § 46b-120.

Although no appellate court in this state has as of yet determined whether a petition for neglect or termination of parental rights can be predicated solely on a mother’s prenatal conduct, trial courts in Connecticut and other states have addressed similar issues with respect to tort and criminal law. An infant who has sustained injuries prior to birth, whether the infant is viable or not at that time, has a cause of action in negligence against the alleged wrongdoer. Simon v. Mullin, 34 Conn. Sup. 139, 147, 380 A.2d 1353 (1977); Tursi v. New England Windsor Co., 19 Conn. Sup. 242, 111 A.2d 14 (1955); see also Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967); Womack v. Buchhorn, 384 Mich. 718, 187 N.W.2d 218 (1971); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958); Smith v. Brennan, 31 N. J. 353, 157 A.2d 497 (1960); Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696 (1953). Similarly, a wrongful death action can be brought on behalf of a child who dies as a result of prenatal injuries regardless of whether those injuries were sustained when the fetus was viable. Kelly v. Gregory, supra; Hatala v. Markiewicz, 26 Conn. Sup. 358, 224 A.2d 406 (1966); Gorke v. Le Clerc, 23 Conn. Sup. 256, 181 A.2d 448 (1962); Prates v. Sears, Roebuck & Co., 19 Conn. Sup. 487, 118 A.2d 633 (1955); see also Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955); Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976). These courts reasoned that “ ‘ “[t]o deny the infant relief . . . is not only a harsh result but its effect is to do [justice] to an outmoded, timeworn fiction not founded on fact and within common knowledge untrue and unjustified.” ’ ” Tursi v. New England Windsor Co., supra, 247-48. “If no right of action is allowed, there is a wrong inflicted for which there is no remedy.” Id., 245.

For different reasons of public policy, the Superior Court in State v. Anonymous (1986-1), 40 Conn. Sup. 498, 516 A.2d 156 (1986), held that an unborn but viable fetus is not a “person” within the meaning of the Connecticut statutes defining murder. Person is defined for the purpose of the homicide statutes as a “human being.” General Statutes § 53a-3 (1). The court in State v. Anonymous (1986-1) found that “[i]n addition to the fact that the codes from which our Connecticut law was drawn limit the words ‘human being’ to those who have been born alive . . . Connecticut’s legislature did not intend to define a ‘human being’ as an unborn but viable fetus.” State v. Anonymous (1986-1), supra, 501. The court noted the seemingly inconsistent developments in tort law, reasoning that “ ‘[differing objectives ... in tort and criminal law foster the development of different principles governing the same factual situation.’ ” Id., 505.

Because neglect proceedings and proceedings to terminate parental rights are neither tort nor criminal actions; see In re Juvenile Appeal (85-2), 3 Conn. App. 184, 485 A.2d 1362 (1985); we must now decide which of the above paths to follow in creating a rule of law to apply in these cases. The Connecticut legislature has stated that the policy underlying its neglect and termination statutes is, in pertinent part, “[t]o protect children whose health and welfare may be adversely affected through injury and neglect . . . .” General Statutes § 17a-101 (formerly § 17-38a). This rationale is akin to that of the cases allowing a child to recover for injuries sustained in útero, or, if those injuries result in death, allowing the child’s representative to bring a wrongful death action. See, e.g., Gorke v. Le Clerc, supra, 262; Tursi v. New England Windsor Co., supra, 247. We therefore hold that a petition for neglect or termination of parental rights can be based solely on a mother’s prenatal conduct.

Our holding is supported by the reasoning of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). In Roe, the court held that “[w]ith respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.” Roe v. Wade, supra, 163; see also In re Juvenile Appeal (83-CD), 189 Conn. 276, 287, 455 A.2d 1313 (1983).

Our Supreme Court, in addition, has recognized the state’s “continuing parens patriae interest . . . in the well being of children.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983). In this case, the state has a compelling interest in protecting Valerie, a living child born with a dangerous drug in her system because her mother used that drug eight to ten hours before her birth. The fact that Valerie is at risk because of her mother’s actions before her birth in no way negates or dilutes this compelling state interest.

Other courts that have addressed this issue have reached similar conclusions. In In re Stefanel Tyesha C., 157 App. Div. 2d 322, 556 N.Y.S.2d 280 (1990), a New York appellate court reversed the family court’s dismissal of petitions alleging causes of action for neglect based on the mothers’ admitted use of drugs during their pregnancies, the childrens’ positive toxicology for cocaine at birth and the failure of the mothers to be enrolled in a drug rehabilitation program at the time the petitions were filed. Id., 328. The court reasoned that “ ‘[t]he important state interests in preservation of life, the potentiality of life, and child welfare lend resolute support to the argument that child abuse and neglect statutes should include unborn children. . . .’” Id. A California court noted the “severe problem of babies born under the influence of dangerous drugs due to their mothers’ use of such drugs during pregnancy” and held that “a child in every context, a living child must be afforded the protection of the juvenile court even though he is at risk because of his mother’s actions before birth.” In re Troy D., 215 Cal. App. 3d 889, 898-99, 263 Cal. Rptr. 869 (1989); see also Matter of Baby X, 97 Mich. App. 253, 293 N.W.2d 736 (1980); In re Ruiz, 27 Ohio Misc. 2d 31, 500 N.E.2d 935 (1986). For these reasons, as well as for the reasons stated above, we hold that a petition for neglect or termination of parental rights can be supported solely by evidence of a mother’s prenatal conduct.

The respondent also argues that her constitutional rights of due process and equal protection have been impermissibly infringed by the trial court’s application of General Statutes §§ 46b-120 and 17a-112 to allow petitions to be predicated solely on prenatal conduct. More specifically, she claims that (1) she was given no notice that her prenatal conduct could result in a finding that her child was neglected or that her parental rights with respect to that child could be terminated, and (2) those statutes have not been applied equally to all mothers in the state whose babies suffer from cocaine withdrawal after birth. Because the respondent failed to raise these claims at trial, she seeks their review as questions “where consideration ... is in the interest of the public welfare or of justice between the parties.” Cahill v. Board of Education, 187 Conn. 94, 100, 444 A.2d 907 (1982); Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

We need not determine whether the respondent’s constitutional claims qualify for plain error review because these claims have not been fully developed and supported in her appellate brief. The respondent cites neither facts nor law that would allow this court to consider her claims adequately. Therefore, we need not, and do not, address these claims. See Practice Book § 4065; Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987); State v. Franklin, 20 Conn. App. 96, 99, 563 A.2d 1383 (1989).

The respondent’s final challenge is directed at the trial court’s findings that (1) the fetus’ passage of meconium was caused by her ingestion of cocaine prior to delivery, (2) Valerie suffered serious physical injury, and (3) Valerie and the respondent had not developed a parent-child relationship and it would not be in Valerie’s best interest to allow time for such a relationship to develop. It is axiomatic that “[a] reviewing authority may not substitute its findings for those of the trier of facts.” Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990); Lerner v. Ceslik, 17 Conn. App. 369, 372, 553 A.2d 1142 (1989). “On appeal, we determine only whether in light of the evidence in the whole record, the court’s decision was clearly erroneous. We will not retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 627, 548 A.2d 758 (1988).

The trial court found two grounds for termination. The second ground was based on the court’s findings that there was no ongoing parent-child relationship. General Statutes § 45a-717 (f) (3). The trial court found that after the birth of Valerie the respondent refused inpatient drug treatment and dropped out of the outpatient program after five sessions when she tested positive for cocaine, did not bond with the child, had psychological problems apart from her chronic drug problems, which resulted in chronic joblessness and homelessness, and did not adhere to the court articulated expectations of drug treatment, regular visitation and adequate housing on which Valerie’s return was premised. In finding that it would be detrimental to the best interest of this child to allow further time for the reestablishment of the parent-child relationship, the trial court determined that it was highly probable, due to the drug and psychological problems of the respondent, that to wait a year for a favorable outcome would be clearly and convincingly detrimental to the well being of a fragile infant whose need for permanency is secondary only to her need for adequate physical care. There was overwhelming evidence to substantiate the trial court’s finding that there was no ongoing parent-child relationship between Valerie and the respondent and that to allow further time for the establishment of the parent-child relationship would be detrimental to Valerie’s best interests. General Statutes § 45a-717 (f) (3). The trial court found two grounds for termination when only one ground need be found. General Statutes § 45a-717.

       The petitions also named Valerie’s father as a respondent. Although he participated in the trial court proceedings, he is not a party to this appeal. We therefore refer to Valerie’s mother as the respondent.

       The court found that Valerie was not abandoned under the definition provided by General Statutes § 17a-112 (b) (1).

       We note, however, that in such cases, as with all petitions for neglect and termination of parental rights, the requirements of General Statutes §§ 46b-120 and 17a-112 must be met before an adjudication of neglect or an order of termination can enter. Our decision today holds only that, in cases where the statutory requirements have been met, a mother’s prenatal conduct can be the basis of such a finding.

       In accordance with Roe v. Wade, 440 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), our legislature recently passed Public Acts 1990, No. 90-112, that prohibits, in pertinent part, the performance of an abortion “upon a pregnant woman after viability of the fetus except when necessary to preserve the life or health of the pregnant woman.”


author: Cretella, J.

text:
    Virginia A. Nahas v. James J. Nahas
    (9560)
    Nokcott, Heiman and Cketella, Js.
    Argued May 31
    decision released August 27, 1991

      Ellen S. Giannini, with whom, on the brief, were Gary B. Traystman, Thomas J. Keramidas and John O’Brien, for the appellant (defendant).

      Barbara M. Quinn, for the appellee (plaintiff).
   Cretella, J.

In this appeal from the judgment dissolving the marriage of the parties, the defendant claims that the trial court abused its discretion: (1) in awarding the jointly owned marital residence to the plaintiff; (2) in ordering the defendant to assume the encumbrances on the marital property except for the first mortgage and unpaid real estate taxes; (3) in awarding the plaintiff alimony in the amount of $125 per week for five years to terminate in the event of either party’s death or upon the plaintiff’s remarriage; (4) in ordering the defendant to maintain $25,000 of life insurance with the plaintiff as beneficiary for as long as he is obligated to pay alimony; (5) in awarding the plaintiff attorney’s fees of $2400 payable at a rate of $100 per month; and (6) in ordering the defendant to pay child support in the amount of $110 per week for the support of one minor child without reference to the applicability of the child support guidelines.

The underlying dissolution action was commenced on May 27, 1986, and was tried on October 20 and 21, 1988, and January 6, 1989. On October 21, 1988, the trial court, Noren, J., ordered a dissolution of the parties’ marriage and bifurcated the matter for a hearing on the support and division of property issues, which proceeded on January 6, 1989. Prior to rendering a judgment Judge Noren died. By stipulation of the parties, the matter was submitted for decision on the record to the court, Koletsky, J., who rendered judgment on September 5, 1990. The child support guidelines were not brought to the attention of the trial court, nor were they sought to be applied.

The parties had been married for nineteen years and had two children. The plaintiff had remained at home while the children were young and subsequently became employed, first in the defendant’s family market and later in a clothing store. Her employment was interrupted due to both physical and emotional difficulties related to the separation. The defendant owned and operated his own corporation, which was suffering financial difficulties at the time of the first hearing. At the time of the hearings, the plaintiff was earning $150 per week and the defendant was earning $500 per week. The parties’ assets consisted primarily of the marital home and the defendant’s family business.

Our standard of review is well settled. We will not substitute our judgment for that of the trial court unless there has been an abuse of discretion or the findings lack a reasonable basis in fact. Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990).

As to the first five issues, the trial court stated that it had considered all of the factors enumerated in General Statutes §§ 46b-81, 46b-82 and 46b-84 in making its decision. The memorandum of decision clearly indicates that the trial court considered all of the statutory factors. We conclude, therefore, that there was no abuse of discretion in the judgment as to either the distribution of assets, assignment of debts or the payment of the plaintiff’s counsel fees.

General Statutes § 46b-215b, effective October 1, 1989, created a rebuttable presumption that when the amount for child support is determined in accordance with the child support guidelines, an order reflecting that amount is appropriate. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate is sufficient to rebut that presumption. In this case, the evidentiary hearing concluded on January 6, 1989, prior to the promulgation of the guidelines, although the decision was not rendered until September 5, 1990.

We conclude that the guidelines were not applicable here because all of the evidence in this case was admitted prior to the effective date of the guidelines and because Judge Koletsky ruled on the basis of that evidence and, presumably, on the basis of the law as it existed as of the date of the hearings before Judge Noren. Given the evidentiary requirements of the guidelines and the unique circumstances of this case, we hold that it was proper for the defendant’s support obligation to be determined as of the last day of the hearings and without reference to the child support guidelines.

In Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991), our Supreme Court held that General Statutes § 46b-86 (a), as amended by Public Acts 1990, No. 90-188, applies retroactively in some instances. Turner, however, is inapposite here. The case here does not involve an existing child support order that the defendant has moved to modify based on a substantial deviation from the child support guidelines. There is, thus, no time period during which a motion for modification was pending that could be retroactively modified. Retroactive modification of a child support order, as discussed by the Turner court, is, therefore, not an issue here.

The judgment is affirmed.

In this opinion the other judges concurred.

       In light of the parties’ stipulation, Judge Koletsky did not hear additional evidence but rather rendered judgment, based on the record as of January 6,1989, as if it had been rendered by Judge Noren before his death.

       As amended by Public Acts 1990, No. 90-188 § 1, General Statutes § 46b-86 (a) provides in pertinent part: “[A]ny final order for . . . support . . . may at any time thereafter be ... . modified .... upon a showing that the final order for child support substantially deviates from the child support guidelines . . . unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. ... No order for periodic payment of ... . support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of . . . [a] support order from the date of service of notice of such pending motion upon the opposing party . . . .”


author: Foti, J.

text:
    John Crotty v. Borough of Naugatuck et al.
    (9649)
    O’Connnel, Foti and Landau, Js.
    Argued April 26
    decision released August 27, 1991

      Mary Beattie Schairer, with whom, on the brief, were Hugh Keefe, DonnA. Swift and JohnM. Walsh, for the appellant (plaintiff).

      Thomas J. Rechen, with whom, on the brief, was Anthony J. Natale, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant. The plaintiff sought reimbursement pursuant to General Statutes § 53-39a from the borough of Naugatuck, where he was employed as a police officer, for legal fees incurred in his defense of perjury charges. The plaintiff claims that the trial court improperly found that he was not acting in the course of his official duties while testifying before the grand jury-

The plaintiff, a sergeant in the Naugatuck police department, was subpoenaed to testify before a grand jury investigating possible official corruption. He testified on June 13 and July 1, 1985, regarding a police union sponsored fund-raiser in 1982 and an alleged kickback to the mayor. On the second day the plaintiff was questioned in detail about a check that he had signed that was made payable to cash and recorded in the check register as a campaign donation to the mayor. In December, 1985, the plaintiff was charged with two counts of perjury. The first count pertained to the testimony the plaintiff gave on June 13, and the second count resulted from the July 1, 1985 testimony. The plaintiff retained counsel and on March 17,1987, a jury convicted him on the first count, but acquitted him on the second count.

After the trial, the plaintiff wrote to the clerk for the borough of Naugatuck seeking $21,187.60 as reimbursement for his attorney’s fees. The borough refused to pay, and the plaintiff brought this action. The trial court found that the plaintiff’s appearance before the grand jury was not made in the course of his official duties and, therefore, rendered judgment for the defendant.

The plaintiff challenges on two grounds the trial court’s finding that the plaintiff’s testimony was not given in the course of his official duties. The plaintiff claims that the trial court improperly classified this issue as a question of fact, and that the trial court in its finding improperly considered the plaintiff’s union activity rather than merely his testimony. We affirm the judgment of the trial court.

The plaintiff first argues that the issue of whether his appearance before the grand jury was made in the course of his official duties was a question of statutory-interpretation, and that the trial court’s treatment of this issue as a question of fact requires reversal of the judgment. We will not review this claim because the plaintiff did not raise this issue before the trial court.

The plaintiff addressed this central issue as a question of fact at trial. Both his pretrial memorandum and trial brief urged the trial court to find as a factual matter that he was acting within the course of his duties. Having lost this issue at trial, the plaintiff seeks on appeal to reverse the trial court claiming that this issue is properly a question of statutory interpretation. This court will not review issues of law that are raised for the first time on appeal. Practice Book § 4185; Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). To allow the plaintiff to proceed on his factual theory at trial and then press his statutory interpretation on appeal would amount to an ambuscade of the trial court. See State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990); State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960).

The second issue raised by the plaintiff is whether it was proper for the trial court to consider the plaintiff’s union activity in its determination that his grand jury testimony was given outside his official duties. The plaintiff first argues that the trial court should not have considered the 1982 union activity at all in analyzing whether the grand jury testimony regarding this activity was properly within the course of the plaintiff’s duties. We disagree. The sole reason for the plaintiff’s testimony before the grand jury was his previous union activity. It would be impossible for the trial court to decide whether the testimony was given in the course of the plaintiff’s official duties without considering this important circumstance.

The plaintiff further argues that even if the trial court properly considered the union activity, it should have found that this activity was incidental to his employment. The plaintiff specifically challenges the trial court’s finding that “the union’s administration of its own affairs and funds” was not within the course of the plaintiff’s official duties. We affirm the judgment of the trial court.

In interpreting the phrase “in the course of his duty” as used in § 53-39a, our Supreme Court has relied on the definition of this phrase in the Workers’ Compensation Act, General Statutes § 31-275 (12). Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). This interpretation gives us a three part test for deciding whether this statutory requirement has been met. Conduct will be found to have occurred in the course of duties if it took place (1) within the period of employment, (2) at a place where the employee could reasonably be, and (3) while the employee is reasonably fulfilling the duties of employment or doing something incidental to it. Rawling v. New Haven, 206 Conn. 100, 106-107, 537 A.2d 439 (1988); Ryeson v. A. E. Bundy Co., 107 Conn. 370, 372, 140 A. 763 (1928). The plaintiff was clearly acting within the period of his employment and at a place where he could reasonably be, both while giving the grand jury testimony and while engaging in the union activity that was the subject of that testimony. The sole remaining issue, therefore, is whether the third prong of this test has been met.

To succeed on his claim, the plaintiff must show that his grand jury testimony regarding the union fundraiser and the subsequent disbursements either fulfilled his duties as a police officer or were incidental to his employment. Because the record shows that the defendant neither directed these activities, nor had any interest in them, they could not have been performed in fulfillment of the plaintiffs duties as an officer. See McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979). The plaintiff is left with the burden of showing that these activities were incidental to his employment as a police officer. The trial court resolved this factual question against the plaintiff. See Fair v. People’s Savings Bank, 207 Conn. 535, 541, 542 A.2d 1118 (1988). “This court will not retry the facts found by the trial court when they are amply supported by the evidence and are not clearly erroneous.” Oakleaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 94, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990); Halepas v. Malerba, 3 Conn. App. 403, 404, 488 A.2d 847 (1985).

The record supports the trial court’s finding. There was no evidence that the union fund-raiser or the subsequent disbursements benefited the defendant in any way. See Farnham v. Labutis, 147 Conn. 267, 270-71, 160 A.2d 120 (1960). Nor was there evidence that any member of the board of police commissioners acquiesced in the union disbursements, or even knew of their existence. See McNamara v. Hamden, supra, 556. The trial court’s factual findings are supported by the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the named defendant, the mayor of the borough of Naugatuck was also a defendant. For purposes of this appeal, we will refer to the borough of Naugatuck as the defendant.

       General Statutes § 53-39a provides in relevant part: “Whenever, in any prosecution of an officer of ... a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred.”

       On July 1, 1985, Crotty was asked the following:
      “Q. Have you ever discussed cash payments to Mayor Rado with anyone?
      “A. No sir.
      “Q. The entry with respect to the check that I just showed you, the $192 check made payable to cash, is [that] in the checkbook?
      “A. Check no. 155 dated March 25. It says mayor campaign donation, $192.
      “Q. Do you have any knowledge whatsoever as to what happened to that check after you wrote it?
      “A. No, sir.
      “Q. And any knowledge as to why you wrote that particular check?
      “A. I don’t even remember what I did with it.”

       The plaintiff made the following argument in his trial brief: “[TJhere are a number of factors which clearly show that Mr. Crotty was acting within the course and scope of his employment at the time of the events and where the subject was a grand jury testimony. The following factors would be considered in this regard.” (Emphasis added.)
      The plaintiff also included the following passage in his supplemental trial brief: “The above facts establish that Mr. Crotty was in the coarse and scope of his employment while testifying before the grand jury in June and July of 1985. The facts above clearly meet the three factors set forth by the Connecticut Supreme Court in the case of Rawling v. New Haven, 206 Conn. 100, 107, 537 A.2d 439 (1988).” (Emphasis added.)

       The plaintiff argues that the trial court fashioned a rule of law holding that all union activity, except that relating to collective bargaining, is outside the course of official duties. Although the defendant argued for such a rule, the trial court clearly stated that it decided this issue as a question of fact. This claim is based on a misinterpretation of the trial court’s memorandum of decision, and, therfore, has no merit.

       Because we affirm the judgment of the trial court, we need not pursue the alternative grounds presented by the defendant for upholding that court’s judgment.


author: Dupont, C. J.

text:
    State of Connecticut v. William R. Morelli
    (9080)
    Dupont, C. J., Spallone and Daly, Js.
    Argued June 7
    decision released August 27, 1991

      John F. Kavanewsky, Jr., with whom, on the brief, was William Pelletreau, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Philip D ’Eramo, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court improperly denied his motion to suppress the results of breath tests administered shortly after his arrest.

On September 19, 1989, Officer James Dempsey of the Wilton police department stopped the defendant for speeding. Dempsey smelled alcohol and administered a roadside sobriety test to the defendant. The test results confirmed Dempsey’s suspicions, and the defendant was placed under arrest.

The defendant was transported to the Wilton police station where he consented to having his breath tested by a device known as an intoximeter. The Wilton police department’s intoximeter was broken, and the defendant consented to being transported to the Weston police department where another intoximeter could be used.

The defendant was transported in a police cruiser to the Weston police department, arriving at approximately the same time Officer John Troxell of the Weston police department was performing a pretest on the Weston intoximeter. The pretest occurred at 12:46 a.m. and, at 1:21 a.m., the defendant’s breath was tested. The test revealed that the defendant’s blood alcohol level was above the allowable limit set forth in General Statutes § 14-227a (a) (2). After administering the intoximeter test, Officer James Filush of the Weston police department again tested the intoximeter at 1:26 a.m. and concluded that the intoximeter readings were accurate.

Following this first intoximeter test of the defendant, Dempsey processed the necessary paperwork, during which time the defendant remained in custody. At 1:51 a.m., a second pretest was performed to check the intoximeter’s accuracy. A second intoximeter test of the defendant, performed at 1:54 a.m., also showed the defendant’s blood alcohol level to be above the allowable limit. After administering the second breath test, Troxell again tested the intoximeter for accuracy at 2:08 a.m. and concluded that the intoximeter readings were accurate.

Prior to trial, the defendant made an oral motion in limine that was subsequently orally amended to a motion to suppress the intoximeter test results. The defendant claims that the trial court’s denial of that motion was incorrect because the state failed to demonstrate that the intoximeter device was checked for accuracy immediately before and after the tests as required by General Statutes § 14-227a (c) (4) and because a true copy of the defendant’s test results was neither mailed nor personally delivered to him within twenty-four hours or by the end of the next regular business day, after such results were known, whichever was later, as required by General Statutes § 14-227a (c) (2).

The issue to be resolved is whether the results of the two intoximeter tests were obtained in compliance with the statutory requirements for ensuring that such tests are accurate.

General Statutes § 14-227a (c) sets forth six elements that must be satisfied for the admissibility of the results of chemical analysis tests of a defendant’s blood, breath or urine in a criminal prosecution for violation of § 14-227a (a) or (b). The defendant’s challenge relates to the second and fourth elements, which provide that chemical test results are inadmissible unless a true copy of the report is mailed or delivered to a defendant within twenty-four hours or the next business day after the results are known and the device was checked for accuracy immediately before and after such test was performed by a person certified by the department of health services.

It is uncontested that all of the other requirements of § 14-227a (c) were met by Dempsey, Filush and Troxell. The defendant argues that, in view of the penal nature of § 14-227a, the requirement that accuracy tests be performed “immediately before and after” a defendant’s test must be strictly construed, and that the thirty-five minute delay between the first pretest of the intoximeter and the first test of the defendant does not satisfy the statute. In addition, the defendant argues that the state failed to provide sufficient evidence at the suppression hearing to support its burden of proving that the test results were mailed to the defendant within twenty-four hours of the results being known.

The state concedes that there was a thirty-five minute delay between the first pretest of the intoximeter and the actual test of the defendant’s breath, but it contends that this delay was not unreasonable and that there was compliance with the statutory word “immediately.”

It is a fundamental principle of construction that a statute such as § 14-227a, which imposes criminal liability, is to be strictly construed. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. Id. Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results. State v. Waterman, 7 Conn. App. 326, 334, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

It is evident from the language of § 14-227a that the purpose of testing the intoximeter for accuracy is to ensure that the device reliably reflects the actual blood alcohol level of the subject tested. State v. Smith, 16 Conn. App. 156, 162, 547 A.2d 69, cert. denied, 209 Conn. 820, 551 A.2d 758 (1988). The legislature has, therefore, required that tests be performed immediately before and after the subject’s test in order to ensure the accuracy of the machine.

“Immediately” has been defined to mean that “the act shall be performed, not instantly, but without unreasonable delay having regard to the thing to be done.” O’Brien v. Wise & Upson Co., 108 Conn. 309, 312, 143 A. 155 (1928); State v. Anonymous, 32 Conn. Sup. 611, 613, 349 A.2d 146 (1975); see siso Bailey v. Bruneau’s Truck Service, Inc., 149 Conn. 46, 546, 175 A.2d 372 (1961). Whether there has been an unreasonable delay is a question of fact for the trial court. On appeal, the function of this court is limited to determining whether the decision of the trial court is clearly erroneous. Practice Book § 4061; State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984).

In denying the defendant’s motion to suppress, the trial court relied on the definition of “immediate” provided by O’Brien and Anonymous and held that there was a question of fact regarding whether the thirty-five minute delay was unreasonable. It held, on the basis of testimony from the police officers and from an expert from the state toxicology laboratory, that the delay was not unreasonable and would not have adversely affected the intoximeter’s accuracy.

There was ample evidence to support the denial of the suppression motion. The delay of thirty-five minutes was not per se unreasonable and in this instance there was no evidence that the accuracy of the machine was affected in any way during the time period between the pretest and the test.

The defendant also asserts that the state failed to meet its burden of proving that the test results were mailed to him within twenty-four hours of their being known. In the course of the suppression hearing, Dempsey testified that it was not the Wilton police department’s policy to give subjects a copy of the results right after the test. Rather its “course of habit” was to mail the test results to the subject. The trial court, relying on Kerin v. Udolf, 165 Conn. 264, 268, 334 A.2d 434 (1973), which holds that circumstantial evidence may be used to infer reasonably that something was duly mailed, found that the state had sustained its burden of showing that the test results had been duly mailed to the defendant during the period specified by statute.

Our review of this finding of fact indicates that the trial court could have reasonably concluded as it did. State v. Rutledge, 17 Conn. App. 250, 256, 552 A.2d 435 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (c) provides in part: “[I]n any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided . . . (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later ... (4) the device used for such test was checked for accuracy immediately before and after such test was performed by a person certified by the department of health services . . . .”

       After making its finding, the trial court allowed the state to present additional evidence concerning the mailing of the test results. Because the court had already ruled on the matter, and because we conclude that the ruling was logical and reasonable, the defendant’s claim of impropriety as to the introduction of such evidence need not be discussed.