author: SCHALLER, J.

text:
    JOHN A. SAMPERI ET AL. v. PLANNING AND ZONING COMMISSION OF THE CITY OF WEST HAVEN ET AL.
    (13481)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Argued October 31, 1995
    decision released April 2, 1996

      Maureen P. Williams, with whom, on the brief, was Stephen I. Small, for the appellant (defendant Minor Farm Limited Partnership).

      Jonathan Katz, with whom, on the brief, was Alice S. Miskimin, for the appellees (plaintiffs).
   SCHALLER, J.

The defendant Minor Farm Limited Partnership appeals from the judgment of the trial court reversing the West Haven planning and zoning commission’s (commission) approval of the defendant’s subdivision application. The defendant claims that (1) the plaintiffs appeal to the trial court was moot because of an amendment to the regulations at issue, (2) the trial court improperly applied the commission’s subdivision regulations, (3) the trial court should have remanded the case to the commission for administrative reconsideration, and (4) the trial court improperly refused to allow the testimony of West Llaven’s city planner. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On February 11, 1991, the defendant submitted an “Application for Subdivision/Resubdivision Approval” to the commission. The defendant sought permission to subdivide 19.36 acres of land located in West Haven into sixty-one residential lots. The defendant’s land was located in an R-3 zone. The application did not contain any request for a variance or for a waiver of the subdivision regulations. The commission held public hearings on the application on June 11 and July 9,1991. All lots in the proposed subdivision complied with the lot size and frontage requirements of the zoning regulations. The West Haven planning and zoning regulations provide that the minimum lot size in an R-3 residential district is 6000 square feet, and each lot must have a minimum of fifty feet of street frontage. By notice of decision dated August 14, 1991, the commission approved the application, with certain conditions not relevant to this appeal.

Following the approval of the application, the plaintiffs appealed to the Superior Court challenging the granting of the subdivision application. In their appeal, the plaintiffs claimed that the decision violated a subdivision regulation that required that the lot size in any subdivision be at least 12,000 square feet with a 100 foot street frontage. According to the defendant’s application, forty-six of the sixty-one lots have less than the 100 foot frontage required under the subdivision regulation, and forty-five of the sixty-one lots contain less than 12,000 square feet. It is uncontroverted that most of the lots contain less than 10,000 square feet, and only four of the sixty-one proposed lots meet both the 12,000 square foot lot size and 100 foot frontage requirements.

The trial court determined that the commission had no authority under General Statutes § 8-26 to approve the defendant’s subdivision application without a waiver because the proposed subdivision did not conform to the subdivision requirements. The trial court concluded, therefore, that the record did not reasonably support the commission’s decision to approve the defendant’s subdivision application. From this judgment the defendant appeals.

I

The defendant first claims that the appeal to the trial court was moot as a result of an amendment to the zoning regulations at issue. The defendant argues that because the plaintiffs’ claim was moot, the defendant’s subdivision approval must be affirmed. Although the defendant’s argument is unclear, we interpret the argument to be that the plaintiffs’ appeal to the trial court was moot because of the amendment of the subdivision regulations and, therefore, we should dismiss or reverse the trial court judgment on that basis. We disagree.

After the plaintiffs’ appeal of the commission decision and before the trial court decision, the subdivision regulations were amended to conform to the less restrictive lot size and frontage requirements of the zoning regulations. The trial court’s memorandum of decision made no reference to the effect of the amendments, and the record does not reflect that the issue was raised before the trial court.

The defendant argues that because its application would conform to the subdivision regulations as amended, the trial court should have dismissed the plaintiffs’ appeal as moot. The conformance of the application to the amended regulations, however, was not before the commission and, likewise, was not before the trial court. It was not, therefore, the function of the trial court to determine whether the application conformed to the subdivision regulations as amended. “The commission is entrusted with the function of interpreting and applying its . . . regulations”; Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn. App. 191, 195, 644 A.2d 964 (1994), citing Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967); and for a court to undertake that function in this case “would be an impermissible judicial usurpation of the administrative functions of the authority.” Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974).

We conclude that the plaintiffs’ appeal to the trial court was not moot. The trial court properly considered only whether the defendant’s subdivision application conformed to the regulations in effect when the application was filed. See General Statutes § 8-2h (a). The trial court afforded the plaintiffs the practical relief of sustaining their appeal of the commission’s approval of an application for a subdivision on property abutting then-own.

II

The defendant next claims that the trial court improperly determined that the regulation applied to the defendant’s application. It is the trial court’s function to “ ‘determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The trial court can sustain the [plaintiffs] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary, or illegal ....’” (Citations omitted.) Gorman Construction Co. v. Planning & Zoning Commission, supra, 35 Conn. App. 195, quoting Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990).

The trial court held that the commission lacked authority to approve a subdivision plan that did not conform to the subdivision requirements without a valid waiver of the requirements. The court noted that the defendant’s application shows that forty-six of the sixty-one lots have less than the 100 foot minimum road frontage and fifty-four of the sixty-one lots contain less than the 12,000 square feet required. The trial court determined that the defendant had made no waiver request that conformed with the applicable section of the West Haven regulation.

“It is an appellate court function to determine whether the judgment of the trial court was clearly erroneous or contrary to the law; appellate review excludes the retrial of the facts. Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 344, 573 A.2d 1222 (1990). The Appellate Court does not determine whether the trier of facts could have reached a conclusion other than the one reached. It looks both at the conclusion reached and the method by which it was reached to determine whether that conclusion is correct and factually supported. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Gorman Construction Co. v. Planning & Zoning Commission, supra, 35 Conn. App. 196.

The defendant relies principally here, as it did in the trial court, on Cristofaro v. Burlington, 217 Conn. 103, 584 A.2d 1168 (1991) (Cristofaro II), to support its position that the subdivision regulation is invalid and, for that reason, was not applied by the commission. The defendant argues that, under Cristofaro II, the commission could not enact and apply a subdivision regulation that established a minimum lot size that conflicted with the zoning regulation. The defendant posits that the commission never applied the subdivision regulation to its application because both the defendant and the commission treated the regulation as invalid. The defendant concedes, however, that the “invalidity” was never made a matter of record by the defendant or the commission.

The defendant further contends, in response to the argument that it should have brought a declaratory judgment action to challenge the subdivision regulation, that it could not have brought such action after it had obtained the subdivision approval. In effect, the defendant argues that, rather than challenging the allegedly invalid regulation before seeking subdivision approval, it was sufficient merely to treat the regulation as invalid. We disagree with the defendant’s arguments.

Cristofaro II arose out of a declaratory judgment action. In that case, the Burlington planning commission had adopted a regulation that established a minimum lot size greater than that established by the Burlington zoning commission. Id., 107. The plaintiff sought a ruling that the subdivision regulation was invalid because it conflicted with the zoning regulation. Id., 105. Our Supreme Court; held that the planning commission exceeded its authority in enacting a regulation that imposed a more stringent lot size requirement than that established in the existing ordinance because the planning commission had thereby impermissibly attempted to make, amend or repeal an existing zoning regulation. Id., 107.

The holding of Cristofaro II does not support the defendant’s position for several reasons. The principal reason is that, in this case, the defendant, after seeking subdivision approval, now attempts to challenge the validity of the regulations enacted by the commission in the course of defending against this appeal rather than in a declaratory judgment action. The defendant’s argument that the commission implicitly recognized and determined the invalidity of the subdivision regulation and, therefore, declined to apply it has no merit. There is nothing in the record to substantiate that argument. In fact, the only support in the record for that argument is that the commission misunderstood or was misinformed about the subdivision regulation requirements.

The commission lacked the authority to declare its own regulation invalid without notice to any party that it intended to do so. A commission is not at liberty to ignore its existing regulations and to treat them as invalid. See Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 387, 610 A.2d 617 (1992); Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 156, 529 A.2d 1338 (1987), aff'd, 208 Conn. 431, 544 A.2d 1213 (1988). When acting in a legislative capacity, a zoning commission “is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . Parks v. Planning & Zoning Commission, [178 Conn. 657, 660, 425 A.2d 100 (1979)]. In contrast, when acting in an administrative capacity, a zoning commission’s more limited function is to determine whether the applicant’s proposed use is one which satisfies the standards set forth in the regulations and statutes.” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505-506 n.10, 636 A.2d 1342 (1994). The commission, therefore, was bound to apply the subdivision regulation applicable to the situation presented by the defendant’s application.

Apart from that problem, which is fatal to the defendant’s position, the defendant is precluded for a related reason from challenging the validity of the subdivision regulation in this proceeding. By applying for subdivision approval and, thereby, seeking relief under the subdivision regulations, the defendant cannot, at the same time, challenge the validity of those very regulations. It is well established that a party seeking advantage under a zoning ordinance cannot, in the same proceeding, attack the constitutional validity of that ordinance. Spero v. Zoning Board of Appeals, 217 Conn. 435, 446, 586 A.2d 590 (1991); Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981). Nor can the party challenge the ordinance’s validity on nonconstitutional grounds in the same proceeding. Weatherly v. Town Plan & Zoning Commission, 23 Conn. App. 115, 122, 579 A.2d 94 (1990); Cristofaro v. Planning & Zoning Commission, 11 Conn. App. 260, 262, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987) (Cristofaro I). The proper method of challenging a regulation is a declaratory judgment action. See Cristofaro I, supra, 262. This rule “serves the important policy of ‘ensuring] that all affected landowners would be provided with an opportunity to become involved in the proceedings.’ ” Spero v. Zoning Board of Appeals, supra, 446, quoting Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 7, 544 A.2d 152 (1988).

Because these related grounds are dispositive of the defendant’s claim, we need not discuss other grounds for distinguishing Cristofaro II. We conclude that the trial court correctly upheld the commission’s action in denying the defendant’s application.

Ill

The defendant next claims that the trial court, upon determining that the commission acted improperly, should have remanded the case to the commission with direction to apply the subdivision regulations rather than simply reversing the commission’s granting of the application. Although the defendant does not make clear the reason for such remand, the defendant appears to argue that the commission could either apply the subdivision regulation, thereby enabling the defendant to appeal, or clarify why it did not previously apply an invalid regulation. The defendant also suggests that it would have the opportunity on remand to seek a waiver of the requirement that it apply for a waiver of the subdivision regulations. We disagree.

No proper purpose would be served by a remand to the commission. Once the trial court determined that the commission had acted improperly, the only appropriate remedy was to sustain the appeal. Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979); Bogue v. Zoning Board of Appeals, supra, 165 Conn. 753-54. The defendant’s failure to apply for a waiver of the subdivision requirement could not be remedied on remand and, for the reasons discussed in part II of this opinion, the commission could not properly rule on the validity of the subdivision regulation.

IV

The defendant claims finally that the trial court improperly excluded the supplemental testimony of the West Haven city planner, Jim Hill. The defendant argues that Hill could have explained that “the Subdivision Regulation was of no effect as a regulation of the use of land, a matter within the province of only the zoning authority.” The defendant’s argument is premised on the applicability of General Statutes § 8-8 (k), which provides in pertinent part that the court “shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.” Under the statute, Hill’s testimony was admissible only if it was essential to the equitable disposition of the appeal. Tarasovic v. Zoning Commission, 147 Conn. 65, 70, 157 A.2d 103 (1959). That question is within the sound discretion of the court. Id.; Swensson v. Planning & Zoning Commission, 23 Conn. App. 75, 80, 579 A.2d 113 (1990).

In this case, the trial court duly considered the offer of Hill’s testimony, stating in its articulation that Hill had “ample opportunity to present his views, his arguments and his interpretations at the hearing.” On the basis of this record, we cannot conclude that the trial court abused its discretion in refusing to allow Hill to testify.

The judgment is affirmed.

In this opinion the other judges concurred.

       Other defendants in this action include the named defendant and the West Haven town clerk, neither of whom are parties to this appeal. The word defendant as used in this opinion refers to Minor Farm Limited Partnership only.

       The plaintiffs John A. Samperi, Carol Samperi, William Johnson, Hazel Johnson and Edward Nyeek, own property abutting that of the defendant.

       West Haven planning and zoning regulations, art. Ill, c. 3, §§ 23-3.1 and 23-3.3.

       Article XI of the West Haven planning and zoning regulations is divided into six chapters. Chapter 4, § 114-3, Subdivision Design and Requirements, states: “All lots shall be not less than 100 feet along the front and shall contain at least 12,000 square feet. Wherever possible side lot lines shall be perpendicular to straight street lines or radial to curving street lines. All lots shall front on streets shown on final plan.”

       This section sets forth the procedures for subdivision approval.

       Article XI, chapter 5, of the West Haven planning and zoning regulation provides: “The Planning and Zoning Commission may waive any requirement and/or standard contained in this Article if it deems such action essential in view of unusual topographical conditions or other special circumstances, provided that any variance granted does not conflict with the general purpose and intent of these regulations. To secure such variance, the applicant shall make written request to the commission explaining fully the reasons therefore and submit same with the preliminary plan. Action by the Commission on such request will be taken as a part of the general action on the preliminary plan.”

       This court granted the defendant’s petition for certification to appeal.

       In what manner the subdivision approval should be affirmed, according to the defendant, is unclear. In its brief, the defendant contends variously that we should reverse the judgment of the trial court, dismiss the judgment of the trial court, and remand the case to the commission for reconsideration.

       If we were to construe the claim to be that the present appeal to this court is moot, the remedy would be dismissal of the case, without vacating the trial court’s judgment. Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 272, 659 A.2d 148 (1995). That result would clearly be detrimental to the defendant. Although it is procedurally irregular to determine whether the appeal to the trial court was moot, we note that a challenge to the court’s subject, matter jurisdiction may be made at any time. Goodson v. State, 232 Conn. 175, 179, 653 A.2d 177 (1995), citing Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987).

       The plaintiffs contend that the amended regulations were declared invalid by a Superior Court judge in Jimmies, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV92-0331249-S (March 29, 1994) (11 Conn. L. Rptr. 179), a decision that was not appealed. The defendant contends that Jimmies, Inc. “does not in toto invalidate the regulations, but rather invalidates the zone boundaries proposed by the new regulations, and not the limitations on lot size and frontage.” Because we decide the mootness issue on other grounds, we need not discuss the effect of the decision in Jimmies, Inc.

       We note that the commission chair indicated at the executive session following the hearing that “we have been told by the corporation counsel and our planner that this proposal does meet subdivision regulations.” This remark would seem to indicate that the commission, rather than ignoring the subdivision regulations or considering them invalid, as the defendant claims was the case, misunderstood or was misinformed about the requirements.

       See footnote 6.

       The first Cristofaro decision, Cristofaro v. Planning & Zoning Commission, 11 Conn. App. 260, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987), was an appeal from the dismissal of a zoning appeal brought by the unsuccessful subdivision applicant. We affirmed the Superior Court’s dismissal on procedural grounds, concluding that the plaintiff should have brought a declaratory judgment action, rather than a zoning appeal, to test the validity of the zoning regulation. Id., 262.

       The Supreme Court noted that the functions of zoning authorities and planning commissions are “ ‘separate yet related,’ even if the two have the same members.” Cristofaro II, supra, 217 Conn. 106, quoting Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 572, 153 A.2d 441 (1959).

       The planning commission’s minimum lot size requirement applied only to subdivision lots not serviced by town water and sewers. Cristofaro II, supra, 217 Conn. 108. In response to the commission’s argument that the two regulations, therefore, did not directly conflict, the court determined that, where only a minimal part of the town has town supplied water and sewer services, “as a practical matter, the planning commission’s enactment . . . has repealed the . . . zoning designation and the two regulations directly conflict” Id.

       We note, however, that the trial court discussed a number of other grounds on which Cristofaro II was distinguishable from the present case, including the fact that, unlike in Cristofaro II, the potentially conflicting regulations here are contained in a single, unified, comprehensive zoning resolution, which constituted a regulative comprehensive plan of development containing a “supremacy clause” to be used to resolve conflicts among the provisions.
      The trial court noted that “the two conflicting regulatory provisions are both contained in one comprehensive planning and zoning resolution adopted by one combined planning and zoning commission. Additionally, the resolution contains a separate section entitled ‘Interpretation of Provisions’; art. I, c. 2, § 12.5; which provides: ‘Whenever any provision of this resolution and any other provisions of law, whether set forth in this resolution or in any other law, ordinance, or resolution of any kind, impose overlapping or contradictory regulations over the use of the land, or over the use of bulk of buildings or other structures, or contain any restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards or requirements shall govern.’ ” (Emphasis added.) Consistent with that provision, the trial court determined that the more restrictive lot size and frontage requirements of the subdivision regulations controlled, and the commission improperly failed to require compliance. The trial court further determined that the two regulatory provisions, subdivision and zoning, are contained in a single comprehensive planning and zoning resolution adopted by a combined planning and zoning commission, with a “supremacy clause” to enable it to resolve conflicts.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LINDA S. OSGOOD v. ARTHUR M. OSGOOD, JR.
    (14078)
    Landau, Schaller and Hennessy, Js.
    Argued November 30, 1995
    decision released January 9, 1996

      William H. Cashman filed a brief for the appellant (defendant).

      Susan King Shaw, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    SUZANNE M. SEARLES v. BOARD OF EDUCATION OF THE TOWN OF WEST HARTFORD
    (13880)
    Spear, Hennessy and Freedman, Js.
    Argued December 6, 1995
    decision released January 9, 1996

      Suzanne M. Searles, pro se, the appellant (plaintiff).

      Elizabeth Dee Bailey, assistant corporation counsel, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    SUZANNE M. SEARLES v. BOARD OF EDUCATION OF THE TOWN OF WEST HARTFORD ET AL.
    (14107)
    Spear, Hennessy and Freedman, Js.
    Argued December 6, 1995
    decision released January 9, 1996

      Suzanne M. Searles, pro se, the appellant (plaintiff).

      Marjorie Wilder, corporation counsel, for the appel-lee (defendant).
   PER CURIAM.

The decision of the compensation review board is affirmed.


text:
    TRATAROS CONSTRUCTION, INC., ET AL. v. ROJAC COMPANY, INC. ROJAC COMPANY, INC. v. TRATAROS CONSTRUCTION, INC., ET AL.
    (13941)
    (13942)
    O’Connell, Heiman and Spear, Js.
    Argued December 4, 1995
    decision released January 9, 1996

      Edward J. Dolan, with whom, on the brief, was Kent Harvey, for the appellants (plaintiffs in the first case, defendants in the second case).

      Daniel P. Scapellati, for the appellee (defendant in the first case, plaintiff in the second case).
   PER CURIAM.

The judgments are affirmed.


text:
    FRANK STANLEY v. MICHAEL MARTONE ET AL.
    (13961)
    O’Connell, Heiman and Spear, Js.
    Argued December 4, 1995
    decision released January 9, 1996

      Kenneth J. Mastroni, for the appellant (plaintiff).

      John W. Mills, for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LIONEL LIZASOIN
    (14182)
    Foti, Lavery and Schaller, Js.
    Argued December 5, 1995
    decision released January 9, 1996

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Francis J. McQuade, supervisory assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgments are affirmed.


text:
    STATE OF CONNECTICUT v. MARK LEIGH
    (14561)
    Foti, Lavery and Schaller, Js.
    Argued December 5, 1995
    decision released January 9, 1996

      Robert G. Golger, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgments are affirmed.


text:
    CITICORP MORTGAGE, INC. v. BEVERLY P. HENDRYX ET AL.
    (14823)
    Foti, Lavery and Schaller, Js.
    Argued December 5, 1995
    decision released January 9, 1996

      Mark S. Steier, for the appellants (named defendant et al.).

      William K. Eisenman, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    HARBOR RECOVERY CORPORATION v. HARBOR REALTY ASSOCIATES ET AL.
    (14796)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued December 6, 1995
    decision released January 9, 1996

      Peter A. Berdon, with whom, on the brief, was Pasquale Young, for the appellant (defendant Michael R. Caporale, Jr.).

      Mark A. Rosenblum, with whom, on the brief, was Brendan T. Flynn, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSEPH B. MARION
    (14007)
    Heiman, Spear and Hennessy, Js.
    Argued December 4, 1995
    decision released January 9, 1996

      Joseph B. Marion, pro se, the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were MarkS. Solak, state’s attorney, Paul Narducci and Vincent Dooley, assistant state’s attorneys, saadDavidJ. Sheldon, deputy assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    RITA PACHECO v. HOUSING AUTHORITY OF THE CITY OF WILLIMANTIC ET AL.
    (13918)
    Heiman, Spear and Hennessy, Js.
    Argued December 4, 1995
    decision released January 9, 1996

      Gary R. Atkinson, with whom, on the brief, was Anthony J. Palermino, for the appellant (defendant).

      Jeffrey F. Gostyla, with whom, on the brief, was Edward T. Lynch, Jr., for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    CHARLOTTE J. CUFFEE v. EASTERN MEDICAL SUPPLY COMPANY, INC., ET AL.
    (14090)
    Landau, Heiman and SchaUer, Js.
    Argued December 7, 1995
    decision released January 9, 1996

      Robert G. Golger, for the appellant (plaintiff).

      Edward P. Brady III, for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    ELIZABETH GALLAGHER v. COVENANT INSURANCE COMPANY
    (13969)
    Lavery, Landau and Schaller, Js.
    Argued December 7, 1995
    decision released January 9, 1996

      Prescott W. May, with whom, on the brief, was Steven P. Kulas, for the appellant (plaintiff).

      Rodd J. Mantell, with whom, on the brief, was Eugene A. Cooney, for the appellee (defendant).
   PER CURIAM.

This case is controlled by Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 617 A.2d 454 (1992).

The judgment is affirmed.


text:
    MICHAEL JORRIN v. VALERIE JORRIN
    (12815)
    Lavery, Heiman and Stoughton, Js.
    Argued December 11, 1995
    decision released January 9, 1996

      Michael S. McKenna, for the appellant (defendant).

      Ellen B. Lubell, with whom, on the brief, was Andrew R. Tarshis, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    JOHN M. GROTTOLE ET AL. v. FRANK DEMILO ET AL.
    (14675)
    Dupont, C. X, and Landau and Spear, Js.
    Argued December 12, 1995
    decision released January 23, 1996

      Janine M. Becker, with whom, on the brief, was Daniel Shepro, for the appellants (defendants).

      Francis C. Vignati, for the appellees (plaintiffs).
   PER CURIAM.

The judgment is affirmed, and the case is remanded for the purpose of setting a new law day.


text:
    ARTHUR BARLOW v. COMMISSIONER OF CORRECTION
    (14455)
    Lavery, Schaller and Hennessy, Js.
    Argued December 12, 1995
    decision released January 23, 1996

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Dropick, senior assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    BANK OF BOSTON CONNECTICUT v. EDWARD E. CIARLEGLIO ET AL.
    (14440)
    Lavery, Spear and Hennessy, Js.
    Submitted on briefs November 6, 1995
    decision released January 23, 1996

      Laurence V. Pamoff filed a brief for the appellants (defendants).

      Ann H. Rubin filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BOBBY GENE SALTER
    (14806)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued December 13, 1995
    decision released January 23, 1996

      Michael J. Melly, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MICHAEL STINSON
    (14132)
    Dupont, C. J., and SchaUer and Spear, Js.
    Argued December 13, 1996
    decision released January 23, 1996

      Robert G. Golger, special public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    CORNEL CALINESCU v. CFD ASSOCIATES ET AL.
    (14773)
    Dupont, C. J., and Lavery and Heiman, Js.
    Submitted on briefs December 14,1995
    decision released January 23, 1996

      Brian S. Karpe filed a brief for the appellant (plaintiff).

      David W. Schoolcraft filed a brief for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    ESPERANZA COLON v. FIRST NATIONAL SUPERMARKETS, INC.
    (14136)
    Dupont, C. J., and Lavery and Heiman, Js.
    Submitted on briefs December 14, 1995
    decision released January 23, 1996

      Gerald T. Giaimo filed a brief for the appellant (plaintiff).

      GraigA. Fontaine, Paul T. Edwards and Christopher J. Coxon filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    JOHN S. KARLS ET AL. v. CITICORP MORTGAGE COMPANY
    (14786)
    Dupont, C. J., and Laveiy and Heiman, Js.
    Submitted on briefs December 14,1995
    decision released January 23,1996

      John S. Karls, pro se, Andrea B. Karls, pro se, and Hilary M. Karls, pro se, the appellants (plaintiffs), filed a brief.

      Matthew D. Gordon and Brad N. Mondschein filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    SAMUEL MALBAURN ET AL. v. ALBERT E. WEISS, JR.
    (14340)
    Schaller, Spear and Hennessy, Js.
    Submitted on briefs December 14, 1995
    decision released January 23, 1996

      AlbertE. Weiss, Jr., pro se, the appellant (defendant), filed a brief.

      Robert B. Young filed a brief for the appellees (plaintiffs).
   PER CURIAM.

The judgment is affirmed.


text:
    ROGER C. TOLLES ET AL. v. MARK W. CASTRO, TRUSTEE, ET AL.
    (12445)
    Sehaller, Spear and Hennessy, Js.
    Submitted on briefs December 14, 1995
    decision released January 23, 1996

      Barry L. Thompson, for the appellants (plaintiffs).

      Peter M. Lemer, for the appellees (defendant Henry Bock et al.).
   PER CURIAM.

The judgment is affirmed.


text:
    WINIFRED NATION v. 72 ACRE ROAD CORPORATION ET AL.
    (14307)
    O’Connell, Spear and Hennessy, Js.
    Submitted on briefs November 6, 1995
    decision released January 23, 1996

      Robert G. Zanesky filed a brief for the appellants (named defendant et al.).

      Patrick R. Gil filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    JOHN DENICOLA, JR. v. STOP AND SHOP COMPANIES, INC.
    (14017)
    Dupont, C. X, and Lavery and Herman, Js.
    Argued December 14, 1995
    decision released January 30, 1996

      Robert S. Bystrowski, with whom, on the brief, was Andrew H. Sharp, for the appellant (defendant).

      Richard Jacobs, with whom, on the brief, was Steven D. Jacobs, for the appellee (plaintiff).
   PER CURIAM.

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


text:
    SUDHA NANGIA v. VINOD NANGIA
    (14023)
    Dupont, C. X, and Heiman and Spear, Js.
    Argued December 8, 1995
    decision released January 30, 1996

      Vinod Nangia, pro se, the appellant (defendant).

      Michael K. Conway, for the appellee (plaintiff).
   PER CURIAM.

We have carefully reviewed the entire record and cannot conclude that the trial court abused its discretion in its decision as to financial orders. We may not have decided the case as did the trial court were we the fact finders but that is not the test for determining whether an abuse of discretion exists.

A trial court has broad discretion in domestic relations cases because it has the opportunity to observe the parties and to assess the evidence. In order for us to conclude that the trial court abused its discretion, we must find that the court incorrectly applied the law or could not reasonably conclude as it did. Wolfburg v. Wolfburg, 27 Conn. App. 396, 398, 606 A.2d 48 (1992). We can conclude neither on the facts of this case.

The judgment is affirmed.


text:
    FIRST FEDERAL BANK, F.S.B. v. RICHARD G. KASTENS ET AL.
    (14751)
    O’Connell, Foti and Landau, Js.
    Submitted on briefs December 14, 1995
    decision released January 30, 1996

      Richard G. Kastens, pro se, the appellant (named defendant), filed a brief.

      Robert G. Golger filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    CONNECTICUT STATE EMPLOYEES ASSOCIATION v. DEPARTMENT OF HOUSING ET AL.
    (14325)
    O’Connell, Schaller and Santaniello, Js.
    Argued January 9
    decision released January 30, 1996

      Robert J. Krzys, for the appellant (plaintiff).

      Maria C. Rodriguez, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    FRANK A. IANNOTTI v. AMPHENOL/SPECTRA-STRIP, INC., ET AL.
    (14784)
    O’Connell, Heiman and Schaller, Js.
    Submitted on briefs January 9
    decision released January 30, 1996

      Scott Wilson Williams and James D. Moran, Jr., filed a brief for the appellants (defendants).

      Robert F. Carter filed a brief for the appellee (plaintiff).
   PER CURIAM.

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


text:
    CAROLYN GEYER ET AL. v. PETER DANASI ET AL.
    (14335)
    O’Connell, Heiman and Schaller, Js.
    Submitted on briefs January 9
    decision released January 30, 1996

      Michael Bradley filed a brief for the appellants (plaintiffs).

      Angelo A. Ziotas filed a brief for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    CHRISTINE B. O’SULLIVAN v. JERRYL MANISCALCO
    (14722)
    O’Connell, Heiman and Schaller, Js.
    Submitted on briefs January 9
    decision released January 30, 1996

      Robert H. Boynton filed a brief for the appellant (defendant).

      Edward Kanowitz and Christine B. O’Sullivan filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    MARILYN CONDIE v. EDWIN WHITNEY
    (14854)
    Landau, Schaller and Stoughton, Js.
    Argued January 16
    decision released February 13, 1996

      Margaret J. Slez, for the appellant (defendant).

      Robert Luysterborghs, with whom, on the brief, was Jonathan Perkins, for the appellee (named plaintiff).

      T. R. Rowe, for the appellee (intervening plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ROBERT D. THOMAS
    (14156)
    Dupont, G. J., and Lavery and Freedman, Js.
    Argued January 11
    decision released February 13, 1996

      Robert G. Golger, special public defender, for the appellant (defendant).

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Nicholas J. Bove, Jr., assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    JOYCE LATKA v. RAYMOND F. LATKA
    (14393)
    Dupont, C. J., and Lavery and Spear, Js.
    Submitted on briefs January 9
    decision released February 13, 1996

      Thomas C. C. Sargent filed a brief for the appellant (defendant).

      Richard G. Kent filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    FRANCES P. SYKAS v. MARK J. SYKAS
    (13401)
    Dupont, C. J., and Lavery and Freedman, Js.
    Argued January 11
    decision released February 13, 1996

      Carlo Forzani, with whom, on the brief, were Arnold H. Klau and Donald J. Cantor, for the appellant (defendant).

      Karen S. Gersten, with whom, on the brief, was Aaron L. Gersten, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    THESSALONIA B. PRINCE v. COMMISSIONER OF CORRECTION
    (14738)
    Heiman, Spear and Hennessy, Js.
    Argued January 11
    decision released February 13, 1996

      Ronald A. Stone, special public defender, for the appellant (petitioner).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    WINDSOR HOUSE ASSOCIATION NO. 1 v. NICHOLAS D. TUCCI ET AL.
    (14918)
    Foti, Landau and Hennessy, Js.
    Submitted on briefs January 9
    decision released February 13, 1996

      Douglas J. Lewis filed a brief for the appellant (plaintiff).

      Vincent D. Flaherty filed a brief for the appellees (named defendant et al.).
   PER CURIAM.

The judgment is affirmed.


text:
    CITY OF TORRINGTON v. LOCAL 1303-32, COUNCIL 4, AFSCME, AFL-CIO
    (14947)
    Foti, Landau and Hennessy, Js.
    Submitted on briefs January 9
    decision released February 13, 1996

      J. William Gagne, Jr., filed a brief for the appellant (defendant).

      Victor M. Muschell filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    DEREK J. JACKSON v. COMMISSIONER OF CORRECTION
    (14405)
    Landau, Spear and Hennessy, Js.
    Argued January 16
    decision released February 13, 1996

      Mark Rademacher, special public defender, with whom, on the brief, was Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      Roland G. Weller, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    LORIANNA HUTCHINS v. WEATHERVANE CONDOMINIUM ASSOCIATION, INC., ET AL.
    (14425)
    Landau, Schaller and Stoughton, Js.
    Argued January 16
    decision released February 13, 1996

      Timothy Brignole, for the appellant (plaintiff).

      Maureen Sullivan Dinnan, with whom, on the brief, was Andrew J. O’Keefe, for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. KENNETH HILLMAN
    (14096)
    Lavery, Landau and Schaller, Js.
    Argued January 17
    decision released February 13, 1996

      Mario Paul Mikolitch, for the appellant (defendant).

      Peter A. McShane, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    EVERETTE MCGREGOR v. COMMISSIONER OF CORRECTION
    (14103)
    Lavery, Landau and SchaUer, Js.
    Argued January 17
    decision released February 13, 1996

      William Andrew Lichtenfels, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Dropick, senior assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    SHEILA M. GLEIFERT ET AL. v. JULIE A. PALACKO
    (14177)
    Foti, Landau and Hennessy, Js.
    Argued January 18
    decision released February 13, 1996

      Linda Clough, for the appellants (plaintiffs).

      A. Jeffrey Somers, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    CAPITOL IDEA ET AL. v. GERALD SCIARRA
    (14274)
    Foti, Landau and Hennessy, Js.
    Argued January 18
    decision released February 13, 1996

      Steven H. Meyer, with whom, on the brief, was R. Bartley Halloran, for the appellants (plaintiffs).

      Louis B. Blumenfeld, with whom, on the brief, was Eileen Mohan Flaherty, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    FRANK VINCI v. ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHINGTON
    (14142)
    O’Connell, Landau and Hennessy, Js.
    Argued January 19
    decision released February 13, 1996

      Peter M. Sipples, for the appellant (plaintiff).

      Michael A. Zizka, for the appellee (named defendant).

      Anthony A. Denorfia, for the appellee (defendant David Chevrolet, Inc.).
   PER CURIAM.

The judgment is affirmed.


text:
    PETER STROUCH v. CDI CORPORATION-NORTHEAST
    (14256)
    O’Connell, Landau and Hennessy, Js.
    Argued January 19
    decision released February 13, 1996

      Michael E. Wolf, for the appellant (plaintiff).

      Albert Zakarian, with whom, on the brief, was Barbara A. Petitjean, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    LAURIE TOLEDO v. WATERFORD HOTEL GROUP, INC., ET AL.
    (14217)
    O’Connell, Lavery and Schaller, Js.
    Argued January 23
    decision released March 5, 1996

      Raymond T. Trebisacci, for the appellant (plaintiff).

      Greg Shettle, for the appellee (named defendant).

      Cynthia J. Coccomo, for the appellee (defendant Wellington Associates).
   PER CURIAM.

The judgment is affirmed.


text:
    CAROL ANN RUBIN v. HARVEY BRUCE RUBIN
    (14708)
    Heiman, Schaller and Hennessy, Js.
    Argued January 23
    decision released March 5, 1996

      Carol Ann Rubin, pro se, the appellant (petitioner).

      William M. Bloss, for the appellee (respondent).

      Bridget G. Jenkins, for the minor child.
   PER CURIAM.

The judgment is affirmed.


text:
    SOUTHERN NEW ENGLAND TELEVISION SERVICE COMPANY, INC., ET AL. v. HARTFORD FIRE INSURANCE COMPANY
    (13982)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued January 24
    decision released March 5, 1996

      Benjamin Ancona, Jr., with whom was Jane Ancona, for the appellants (plaintiffs).

      Stuart G. Blackburn, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    CRISTWOOD CONTRACTING, INC. v. CHRISTINE BADERA ET AL.
    (14666)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs February 13
    decision released March 5, 1996

      Leslee B. Hill and Robert A. Ziegler filed a brief for the appellants (defendants).

      Lawrence G. Rosenthal filed a brief for the appel-lee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DAVID M. ECCLESTON
    (14895)
    O’Connell, Foti and Schaller, Js.
    Argued February 14
    decision released March 5, 1996

      Steven C. Antignani filed a brief for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Juliett Crawford, supervisory assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    ERIC PLOURDE v. COMMISSIONER OF MOTOR VEHICLES
    (14524)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs February 13
    decision released March 5, 1996

      Robert J. McKay and Gregory A. Thompson filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Robert T. Morrin, assistant attorney general, filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    WAYNE P. BLANCHARD ET AL. v. MARION S. LUBINSKI
    (14671)
    Fotí, Heiman and Schaller, Js.
    Submitted on briefs February 13
    decision released March 5, 1996

      PaulBialobrzeski filed abrief for the appellants (petitioners).

      John R. Horvack, Jr., filed a brief for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    GRANT WESTERSON v. VINCENT COCCOLI ET AL.
    (14112)
    Lavery, Herman and Hennessy, Js.
    Argued February 14
    decision released March 5, 1996

      Michael E. Cronin, Jr., for the appellants (named defendant et al.).

      John S. Bennet, with whom, on the brief, was Lorri A. Massa, for the appellee (plaintiff).

      Stephen R. Sheehan, for the court-appointed accountant.
   PER CURIAM.

The judgment is affirmed.


text:
    IRENE H. BROMBERG v. PATRICK SNOW ET AL.
    (14860)
    Foti, Heiman and Schaller, Js.
    Submitted on briefs February 13
    decision released March 5, 1996

      Jon C. Leary filed a brief for the appellants (defendants).

      George A. Law filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    MATTIE BELL v. U.S. HOMECARE CORPORATION OF CONNECTICUT ET AL.
    (14753)
    Foti, Heiman and Schaller, Js.
    Submitted on briefs February 13
    decision released March 5, 1996

      Joelle C. Newton filed a brief for the appellant (plaintiff).

      Jason M. Dodge filed a brief for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    WILLIAM J. CAMPBELL v. THEODORA CASALE
    (14315)
    Foti, Heiman and Cretella, Js.
    Argued December 13, 1995
    decision released March 12, 1996

      Grant Fondo, with whom, on the brief, were Brendan T. Flynn, and Robert L. Hirtle, for the appellant (defendant).

      Peter N. Buzaid, assistant coiporation counsel, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DAVID MORALES
    (14243)
    Landau, Schaller and Hennessy, Js.
    Argued February 15
    decision released March 12, 1996

      Patricia A. King, for the appellant (defendant).

      Timothy J. Sugrue, executive assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

This case is controlled by State v. Cuffee, 32 Conn. App. 759, 630 A.2d 621 (1993).

The judgment is affirmed.


text:
    STONE AND STONE PENSION PLAN ET AL. v. PATRICIA MCKENNA ET AL.
    (14399)
    Landau, Schaller and Hennessy, Js.
    Argued February 15
    decision released, March 12, 1996

      Ahmed A. Dadi, pro se, with whom was Patricia McKenna, pro se, the appellants (defendants).

      David M. ReiUy, with whom, on the brief, was Francis J. Doherty, for the appellees (plaintiffs).
   PER CURIAM.

The judgment is affirmed, and the case is remanded for the purpose of setting new law days.


text:
    CATHERINE YANG v. VETERANS CHEMICALS, VACRS
    (13852)
    Lavery, Heiman and Hennessy, Js.
    Argued February 14
    decision released March 12, 1996

      Joseph L. Ciasen, with whom, on the brief, were David W. Bogan, John N. Thomas and Steven J. Armstrong, for the appellant (defendant).

      Shelley R. Sadin, with whom, on the brief, was Paul F. Thomas, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    ANTHONY HENDERSON v. CITY OF NEW HAVEN ET AL.
    (14144)
    Dupont, C. J., and Schaller and Spallone, Js.
    Argued February 16
    decision released March 12, 1996

      Katrena Engstrom, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Patricia A. Cofrancesco, deputy corporation counsel, for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    DARNELL JOHNSON v. COMMISSIONER OF CORRECTION
    (14856)
    Lavery, Heiman and Hennessy, Js.
    Argued February 16
    decision released March 12, 1996

      Mei-wa Cheng, with whom, on the brief, was Carrie A. Howard, for the appellant (petitioner).

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    DENNIS W. BYARS v. WHYCO CHROMIUM COMPANY ET AL.
    (15287)
    Dupont, C. J., and Spear and Hennessy, Js.
    Submitted on briefs February 13
    decision released March 12, 1996

      Dennis W. Byars, pro se, the appellant (plaintiff), filed a brief.

      Scott Wilson Williams filed a brief for the appel-lees (defendants).
   PER CURIAM.

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


text:
    LOUIS F. KILHAM III v. JOAN A. KILHAM
    (14461)
    Dupont, C. J., and Spear and Hennessy, Js.
    Submitted on briefs February 13
    decision released March 12, 1996

      Robert H. Weinstein and Daniel H. Cohan filed a brief for the appellant (plaintiff).

      Margaret A. Waldron filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    LINDA L. MINOR v. BILLY SCOTT MINOR
    (14574)
    Dupont, C. J., and Speax and Hennessy, Js.
    Submitted on briefs February 13
    decision released March 12, 1996

      Stephen T. Gionfriddo filed a brief for the appellant (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ALCIDE LEMIEUX
    (14407)
    Lavery, Schaller and Stoughton, Js.
    Argued February 21
    decision released March 12, 1996

      M. Donald Cardwell, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mark Brodsky, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    PAUL VAZZANO v. ROCCO FABRIZIO
    (14563)
    Lavery, Schaller and Stoughton, Js.
    Argued February 21
    decision released March 12, 1996

      Laurence V. Pamoff, for the appellant (plaintiff).

      Ronald D. Japha, with whom, on the brief, were Richard S. Scalo and Abraham I. Gordon, for the appel-lee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CHRISTOPHER RUSSELL
    (14686)
    O’Connell, Foti and Spear, Js.
    Argued February 22
    decision released March 12, 1996

      Robert M. Berke, deputy assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Gal-vin, state’s attorney, Paul Gaetano, assistant state’s attorney, and Nancy L. Gillespie, deputy assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    ROBERTO NUNEZ v. EARL ABRAMS ET AL.
    (14745)
    Foti, Heiman and SchaUer, Js.
    Submitted on briefs February 22
    decision released March 26, 1996

      Joseph M. Brophy filed a brief for the appellant (plaintiff).

      Carolyn P. Gould and David J. Crotta, Jr., filed a brief for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    ANNETTE THOMAS v. WALKER S. THOMAS
    (14369)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued February 22
    decision released March 26, 1996

      WalkerS. Thomas, pro se, the appellant (defendant).

      Sean Orion LeBas, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    TINA ELDERKIN v. HAMILTON PAVILION HEALTH CARE ET AL.
    (14474)
    Dupont, C. J., and Schaller and Spallone, Js.
    Argued February 16
    decision released March 26, 1996

      Mark W. Oberlatz, with whom, was Amy M. Stone, for the appellant (plaintiff).

      David C. Davis, for the appellees (defendants).
   PER CURIAM.

In this appeal from the decision of the workers’ compensation review board, the plaintiff assails the factual findings of the trial commissioner.

We have repeatedly stated that we cannot and will not intervene in matters involving the fact-finding function of the trier of fact. This case presents us with no reason to alter this long-standing principle.

Our review of the record and briefs fails to disclose that the trial commissioner and the compensation review board acted other than in accordance with applicable law.

The decision of the compensation review board is affirmed.


text:
    DONALD E. BRYANT, JR. v. HELEN V. BRYANT
    (14682)
    Lavery, Landau and Heiman, Js.
    Argued February 26
    decision released March 26, 1996

      Donald E. Bryant, Jr., pro se, the appellant (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    DONALD E. BRYANT, JR. v. HELEN V. BRYANT
    (14199)
    Lavery, Landau and Heiman, Js.
    Argued February 26
    decision released March 26, 1996

      Donald E. Bryant, Jr., pro se, the appellant (plaintiff).

      Helen V. Bryant, pro se, the appellee (defendant), filed a brief.
   PER CURIAM.

The judgment is affirmed.


text:
    HELEN D. LEGNOS v. PETER J. LEGNOS
    (14339)
    Lavery, Landau and Ileiman, Js.
    Argued February 26
    decision released March 26, 1996

      William W. Fisher, Jr., for the appellant (defendant).

      William E. McCoy, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    RONALD L. GASKA v. KAREN V. COSTELLO ET AL.
    (14434)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs February 22
    decision released March 26, 1996

      Gilbert Shasha filed a brief for the appellant (plaintiff).

      Christopher F. Wanat filed a brief for the appel-lees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    ROBERT JOHNSTON v. BOARD OF TAX REVIEW OF THE CITY OF MIDDLETOWN
    (14317)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs February 22
    decision released March 26, 1996

      David R. Schaefer filed a brief for the appellant (plaintiff).

      Trina A. Solecki, city attorney, filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    JOSEPH BRUNO ET AL. v. CNG REALTY CORPORATION
    (14114)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued February 28
    decision released March 26, 1996

      Joseph P. Quinn, Jr., with whom, on the brief, were James F. Aspell and John J. Quinn, for the appellants (plaintiffs).

      Thomas A. Kyzivat, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    PEOPLE’S BANK v. JAMES A. MILLER, JR., ET AL.
    (14851)
    Foti, Heiman and Schaller, Js.
    Argued February 29
    decision released March 26, 1996

      James A. Miller, Jr., pro se, with whom, on the brief, was Joyce R. Miller, pro se, the appellants (named defendant et al.).

      David Doyle, with whom, on the brief, was Mary E. Wexler, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JERMAINE PRINCE
    (14697)
    Foti, Heiman and Schaller, Js.
    Argued February 29
    decision released March 26, 1996

      Leonard M. Crone, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Andrew M. Wittstein, supervisory assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    HANCOCK AND ESTABROOK v. DAVID M. BROWN
    (14481)
    Dupont, C. J., and O’Connell and Hennessy, Js.
    Argued March 18
    decision released April 2, 1996

      Richard J. Pober, for the appellant (defendant).

      Scott Charmoy, with whom, on the brief, were Ira B. Charmoy and James M. Nugent, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    JOSEPH SAVENELLI v. COMMISSIONER OF CORRECTION
    (14039)
    Foti, Landau and Schaller, Js.
    Argued March 18
    decision released April 2, 1996

      David B. Rozwaski, for the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LAWRENCE PETROSKY
    (14521)
    Spear, Hennessy and Cretella, Js.
    Argued March 19
    decision released April 2, 1996

      Milo J. Altschuler, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, for the appel-lee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    WILLIAM HAMILTON, JR. v. COMMISSIONER OF CORRECTION
    (14726)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued March 19
    decision released April 2, 1996

      Louis S. Avitabile, special public defender, with whom, on the brief, was Meryl Anne Spat, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


author: HEIMAN, J.

text:
    ROBERTA A. DACEY v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (13703)
    Dupont, C. X, and Lavery and Heiman, Js.
    Argued December 14, 1995
    officially released April 9, 1996

      M. Leonard Caine III, for the appellants (defendant clerk of the borough of Naugatuck et al.).

      Charles J. Goddard, for the appellee (plaintiff).

      Charles Krich, staff attorney, with whom, on the brief, was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).
   HEIMAN, J.

The defendants appeal from the judgment of the Superior Court remanding the case to the commission on human rights and opportunities (commission) for further proceedings. The defendants claim that the court improperly substituted its factual findings for those of the commission. Because we conclude that there is no final judgment in this case, we dismiss the defendants’ appeal.

The record discloses the following relevant facts and procedural history. On April 26, 1982, the plaintiff, age thirty-six, applied for a job as a police officer with the Naugatuck police department. After she submitted her application, she met with the chief of police, who rejected her application because her age exceeded the police department’s age limit for new employees. On August 26, 1982, the plaintiff filed a complaint with the commission, claiming that the police department had discriminated against her on the bases of her age and gender. The commission found that the police department had discriminated against the plaintiff on the basis of her age in violation of General Statutes § 46a-60 (a) (l), but that the police department had not discriminated against the plaintiff on the basis of gender. The commission found that had the police department not discriminated against the plaintiff, she would have been hired as a part-time supernumerary police officer in 1982 or 1983 and would have served as a supernumerary until 1985, the year that the police department eliminated supernumerary positions. Furthermore, the commission found that the plaintiff did not present sufficient evidence to prove that she would have been promoted to the position of full-time police officer by 1985. On the basis of its findings that the plaintiff would have been employed as a supernumerary until 1985 and would not have been employed by the police department thereafter, the commission awarded the plaintiff damages of $7500 for lost wages and compensation. The commission also awarded the plaintiff attorney’s fees and $2500 for emotional distress. Finally, the commission ordered the police department to discontinue its policy that prohibited individuals over the age of thirty-five from applying for police officer positions.

The plaintiff appealed to the Superior Court, pursuant to General Statutes §§ 46a-94a and 4-183, claiming that the commission had improperly imposed the burden on her to prove that she would have been hired as a full-time police officer by 1985. The trial court found that the commission should have imposed on the police department the burden of proving that it would not have hired the plaintiff as a full-time police officer between 1982 and 1985. On the basis of the evidence presented at the commission hearing, the court also found that had the police department not engaged in discriminatory hiring practices, the plaintiff would have been hired as a full-time police officer after she had served as a supernumerary for a short period of time. The court determined that the police department would not have been able to prove otherwise. In addition, the court found that the evidence demonstrated that the average time served by an employee as a supernumerary was generally eighteen and one-half months, and that the average time served by an employee as a supernumerary at the time the plaintiff applied for employment was seven months. The court remanded the case to the commission and ordered it to determine, on the basis of the available evidence, when the plaintiff would have been hired as a full-time police officer and how much back pay she is entitled to receive. Following the Superior Court’s remand order, the defendants appealed to this court. On appeal, the defendants claim that the Superior Court improperly substituted its factual findings for those of the commission.

Prior to oral argument, we noted the possibility that in light of our Supreme Court’s opinion in Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 659 A.2d 714 (1995), the defendants’ appeal to this court had not been taken from a final judgment. The parties were advised of our concern and notified that the final judgment issue would be addressed at oral argument. See Annecharico v. Patterson, 38 Conn. App. 338, 339, 660 A.2d 880 (1995). We conclude that no final judgment exists here.

“ ‘The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court.’ Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). If there is no final judgment, we cannot reach the merits of the appeal. General Statutes §§ 51-197a and 52-263; Practice Book § 4000.” Wann v. Lemieux, 36 Conn. App. 138, 140, 648 A.2d 889 (1994).

Pursuant to General Statutes § 4-183 (j), a remand order in an administrative appeal is a final judgment. That provision, however, was enacted in 1988 as an amendment to the Uniform Administrative Procedure Act, and it applies only in cases where the underlying agency proceedings commenced on or after July 1, 1989. Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 233 Conn. 496. Here, the agency proceedings commenced on August 26, 1982, the date that the plaintiff filed her complaint with the commission. See Regs., Conn. State Agencies § 46a-54-37. Thus, § 4-183 Q) does not apply in this case, and the Superior Court’s remand order is not automatically a final judgment. Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 498. Because § 4-183 (j) does not apply here, we must determine whether the Superior Court’s remand order satisfies the test for final judgment set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 498. Under State v. Curcio, supra, 31, the court’s order will be considered immediately appealable only “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”

The remand order in this case directed the commission to determine when the plaintiff would have been hired as a full-time police officer and how much back pay she is entitled to receive. Because the remand order “cannot be said, on any theory, to have ‘terminated’ any part of the proceedings, the only issue of appealability is whether the rights of the parties have been so definitively resolved ‘that further proceedings cannot affect them.’ ” Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 233 Conn. 499. This issue must be resolved by examining the scope of the remand order. Id.

Our Supreme Court has distinguished between two types of administrative remands in determining whether the second prong of State v. Curcio, supra, 191 Conn. 31, has been satisfied. See Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 233 Conn. 498-99. “ ‘A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such circumstances, [our Supreme Court has] held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. See, e.g., Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67 (1952); Santos v. Publix Theatres Corporation, 108 Conn. 159, 161, 142 A. 745 (1928). Atrial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. Without dictating the outcome of the further administrative proceedings, the [trial] court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. . . . Such an order is not a final judgment. See, e.g., Burdick v. United States Finishing Co., 128 Conn. 284, 288-89, 22 A.2d 629 (1941); Luliewicz v. Eastern Malleable Iron Co., 126 Conn. 522, 524, 12 A.2d 779 (1940).’ Schieffelin & Co. v. Dept. of Liquor Control, [202 Conn. 405, 410, 521 A.2d 566 (1987)].” Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 499.

The pertinent part of the Superior Court’s remand order in this case is as follows: “[T]he case must be remanded to the commission so that it may, on the basis of the present record, determine when the plaintiff would have been hired as a full-time officer and how much back pay she is entitled to receive as a result.” The order explicitly directs the commission to make further evidentiary findings that will lead to a final administrative resolution of the issues raised by the parties. See id. Because the order requires the commission to make these supplementary factual findings, we conclude that the order seeks “amplification of ‘an administrative ruling [that] is in some [material] fashion incomplete and therefore not ripe for final judicial adjudication.’ [Schieffelin & Co. v. Dept. of Liquor Control], supra, 202 Conn. 410.” Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 233 Conn. 502. Accordingly, the defendants’ appeal is not taken from a final judgment, and we are without jurisdiction to reach the merits of the appeal. Wann v. Lemieux, supra, 36 Conn. App. 140.

The appeal is dismissed.

In this opinion the other judges concurred.

       In the plaintiffs appeal to the Superior Court, the defendants included the commission on human rights and opportunities (commission), the clerk of the borough of Naugatuck, the board of burgesses of Naugatuck, the mayor of Naugatuck and the police commission of Naugatuck. In that appeal, the commission, although it was a defendant, joined the plaintiff in contesting the actions of the commission’s presiding officer but did not file a separate appeal pursuant to General Statutes § 46a-94a. The commission did not appeal to this court from the Superior Court’s decision. We refer to the remaining defendants as the defendants in this case.

       General Statutes § 46a-60 (a) provides in pertinent part: “It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . .


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MAURICE CORBEIL
    (13990)
    Foti, Heiman and Hennessy, Js.
    Argued January 23
    officially released April 9, 1996

      Todd A. Edgington, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Wilson, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle on a public highway while under the influence of intoxicating liquor or any drug or both in violation of General Statutes § 14-227a (a) (1). The defendant claims that the judgment should be reversed because the trial court improperly (1) permitted into evidence statements made by the defendant after he had been given Miranda warnings while excluding statements made by the defendant before he had been given those warnings, and (2) concluded that the defendant had knowingly, voluntarily and intelligently waived his fifth amendment right to remain silent. The defendant also claims that General Statutes § 14-227a (f) is unconstitutionally vague as it applies to the facts of this case. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On February 19, 1993, at approximately 12:55 a.m., the defendant was driving a pickup truck on a public highway in Manchester. As he approached the entrance ramp of Interstate Route 384, he traveled at a noticeably slow speed. The speed of the defendant’s vehicle then fluctuated between forty and fifty miles per hour, and the vehicle began swerving between lanes, from right to center to breakdown lane. The truck also had its right turn signal on. Robert Leduc, a Manchester police officer, observed this erratic driving and activated his strobe and flashing lights to stop the defendant. The defendant did not respond to the lights or to the police vehicle’s siren. The defendant, upon exiting the highway, brought his vehicle to a stop. Leduc approached the defendant after notifying the dispatcher by radio of his location. The officer also activated an audio-video camera that was attached to his cruiser.

Leduc asked the defendant for his license. The defendant’s eyes were glassy, he had an odor of beer or liquor on his breath and his motions were awkward. Leduc asked the defendant to exit his vehicle to have sobriety tests administered. Upon getting out of the truck, the defendant had the front of his trousers open and appeared to have urinated in his pants. The officer also observed that the defendant slurred his speech and swayed when he walked.

The officer administered a variety of sobriety tests to the defendant. The defendant could not stand on one leg with his arms by his side for thirty seconds, nor could he walk nine straight steps, heel-to-toe with arms straight out. The defendant failed to perform a finger-to-nose test that requires a person to tilt his head back with his eyes shut and to touch his finger to his nose a number of times. The defendant also could not satisfactorily perform, to the officer’s observation, a horizontal gaze nystagmus test. At this point, the defendant was placed under arrest and transported to the police station.

I

The defendant first argues that statements he made at the police station, after he was advised of his Miranda rights, should have been excluded from evidence under the derivative evidence doctrine. He claims his rights to due process and against self-incrimination pursuant to article first, § 8, of our state constitution were violated.

The facts relative to this claim are as follows. At the scene of the stop, the defendant stated that he had consumed four beers at the Cactus Club between 6:30 p.m. and 12:30 a.m. This remark was made subsequent to Leduc’s comments to the defendant that “You’re going to jail, I think” and “You’re cocked.” During the administering of the sobriety tests, Leduc questioned the defendant about his activities earlier in the evening. The trial court suppressed the defendant’s statements, finding that the officer’s comments were the functional equivalent to a formal arrest and, therefore, Leduc’s questions constituted custodial interrogation.

Thereafter, the defendant was transported to the police station and advised of his Miranda rights. In response to Leduc’s continued questioning, the defendant stated that he had been drinking beer at the Cactus Club from about 6:30 p.m. to 12:30 a.m.

The trial court excluded all inculpatory statements made by the defendant prior to having his rights read to him at the police station. The defendant claims that the statements made after the Miranda warnings should also have been suppressed because of the taint from the illegal first “confession.” We do not agree.

The defendant does not claim a violation of his federal constitutional rights; see Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); but only of his constitutional rights to due process and against self-incrimination under our state constitution. He argues that we should not adopt the Elstad standard, but, rather, we should apply a “break in the stream of events” test on the issue of derivative evidence. Under the Elstad standard, an initial statement given voluntarily while in custody without Miranda warnings does not automatically require the exclusion of a statement made after Miranda warnings are given. If the subsequent statement is found to have been voluntarily made, it is admissible unless the initial statement was coerced. When the initial statement, given while a defendant is in custody without having received Miranda warnings, is coerced, however, the court must determine whether the coercion has carried over to the statement given after Miranda warnings are given by examining “the time that passes between confessions, the change in place of interrogations, and the change in the identity of the interrogators . . . .” Id., 310.

Under the “break in the stream of events” standard, confessions made after Miranda warnings are given where there has also been a prewarning confession are presumptively inadmissible unless it can be shown that due to the “break in the stream of events” the taint from the earlier prewarning confession has been removed from the subsequent postwarning confession. This test is employed under the federal constitution only when the pre-Miranda statement was coerced. It is used to determine whether the statement given after Miranda warnings should be excluded. See Westover v. United States, decided with Miranda v. Arizona, 384 U.S. 436, 494-97, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Under Elstad, a second or subsequent statement will not be presumed to have been coerced merely because the defendant knew that “ ‘the cat’ was already ‘out of the bag.’ ” State v. Torres, 21 Conn. App. 568, 570, 575 A.2d 702, cert. denied, 216 Conn. 808, 580 A.2d 65 (1990).

Miranda warnings have come to have an independent significance under our state constitution and are required under the due process clause of article first, § 8, of the Connecticut constitution. State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). Their primary purpose is to ensure that an accused is aware of the constitutional right to remain silent before making statements to the police. State v. Ferrell, 191 Conn. 37, 41, 463 A.2d 573 (1983). The aim of Miranda was to ensure the defendant’s right to choose between speech and silence. In the case before us, the defendant’s initial statements, while part of a police custodial interrogation, are not claimed to have been obtained by coercive measures. The warnings required by article first, § 8, significantly enhance a person’s opportunity to make a knowing, intelligent and voluntary decision whether to speak or remain silent. Without such warnings, the defendant could not be made aware that he had an essentially free and unconstrained choice to speak or remain silent.

We conclude that the trial court properly did not apply the “break in the stream of events” test. Having determined that the initial statement was voluntary, although procured in violation of the defendant’s Miranda rights, the trial court was justified in concluding that the Miranda violations did not taint the admissibility of his subsequent statements. “As long as all of the statements were voluntarily made, the fact that the police procured those statements in violation of the defendant’s Miranda rights does not create a presumption that the police acted coercively.” State v. Roseboro, 221 Conn. 430, 444, 604 A.2d 1286 (1992), citing State v. Derrico, 181 Conn. 151, 167, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Because the statements made before Miranda warnings were given were not the product of coercion, the ultimate test as to the statements made after Miranda warnings were given must be whether they are the product of an essentially free and unconstrained choice by the defendant. We do not reject the principles addressed in Elstad under our state constitution, article first, § 8.

II

The defendant next asserts that the trial court incorrectly found that he had waived his Miranda rights. We are unpersuaded.

Upon arrival at the police station, the defendant was advised of his Miranda rights and indicated that he understood them. He was then asked if he wanted to call an attorney and was told that he could use a telephone to make the call. The defendant stated that he did not want to speak with a lawyer. He further indicated that he was willing to answer questions. In response to questions, the defendant said that he had been drinking beer at the Cactus Club from approximately 6:30 p.m. to 12:30 a.m.

Miranda warnings must be given to assure that an inculpatoiy statement is made as a result of an essentially free and unconstrained choice. State v. Madera, 210 Conn. 22, 48, 554 A.2d 263 (1989). “The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights, including his right to remain silent.” State v. Barrett, supra, 205 Conn. 449. “Waiver must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).” State v. Guess, 39 Conn. App. 224, 231, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995). While silence alone is not sufficient to establish waiver, no specific expression of the relinquishment of rights need be shown in the record. State v. Barrett, supra, 450. Waiver may be inferred from the questioned person’s words, actions and course of conduct. State v. Irving, 27 Conn. App. 279, 283, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992). “The issue of whether the defendant has voluntarily, knowingly and intelligently waived his rights is not subject to an exact test but is an issue to be determined from the facts in the case.” State v. Roy, 34 Conn. App. 751, 760, 643 A.2d 289 (1994), rev’d on other grounds, 233 Conn. 211, 658 A.2d 566 (1995).

As a reviewing court, in considering the validity of the waiver, we, like the trial court, look to the totality of the surrounding circumstances. State v. Madera, supra, 210 Conn. 49. The usual deference given to the function of fact-finding by the trial court is qualified on questions of this nature by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992); State v. Rosado, 218 Conn. 239, 255, 588 A.2d 1066 (1991).

The defendant argues that the evidence in the record is insufficient to support the trial court’s decision, and that the evidence that was presented was not qualitatively substantial. He claims his inculpatory statements are central to this case because of the “dearth of evidence against him.” A scrupulous review of the record reveals that the trial court’s fact-finding on this issue is supported by sufficient and substantive evidence. In addition to the evidence presented at the suppression hearing, the record discloses that the defendant was a sixty-six year old man who spoke and understood the English language and had some familiarity with police procedure, having been convicted of operating a motor vehicle while under the influence of intoxicating liquor at some time in the past. The only evidence presented did not show that the defendant is intellectually impaired or lacking sufficient education to be able to understand what was occurring. At no time did the defendant indicate that he did not understand his rights as presented, nor did he request that those rights be explained to him. He did not attempt to exercise his right to remain silent or to contact an attorney.

The actions and words of the defendant, together with his course of conduct, are sufficient to allow the trial court to infer a waiver. On the basis of the totality of surrounding circumstances, the trial court correctly found that the defendant’s statements were given pursuant to a valid waiver, and that the defendant knowingly, intelligently and voluntarily waived his Miranda rights.

III

The defendant also claims that, as it applies to this case, § 14-227a (f) is unconstitutionally vague in violation of his constitutional right to due process pursuant to the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution.

The facts relevant to this claim are as follows. While at the police station, the defendant was asked to submit to a breath test, and was advised of the consequences of refusing the test, which included suspension of his driver’s license and the fact that his refusal may be admitted against him in a criminal prosecution pursuant to General Statutes § 14-227b (b). The defendant agreed, and the breath testing machine, known as the Intoximeter 3000, was prepared. The defendant was instructed to hold the breath tube, to form a seal around the end of it with his mouth and to blow into the tube for approximately ten seconds. The defendant refused to form a seal, blocked the tube with his tongue and blew air around the tube.

After a hearing outside the presence of the jury, the trial court found that there had been compliance with § 14-227b (b) and allowed the state to present evidence of the defendant’s refusal to submit to a breath test.

The defendant bases his claim on the lack of a definition of the word “refused” in the challenged statute. The state claims that § 14-227a (f) does not give rise to a cognizable vagueness claim under a due process analysis because it is not a penal provision involving conduct that constitutes criminal activity, but rather a statutory method that permits a jury to consider and to draw inferences from a defendant’s exercise of his option of refusing to submit to a chemical test.

While we agree that this may not be a penal statute, we nevertheless review the defendant’s vagueness claim. Our Supreme Court has described the void for vagueness doctrine as applying to “ ‘a governing statute or regulation.’ ” State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990); see State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). The constitutionality of a statute’s provision attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980).

Due process requires that a statute give to a person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply them in order to prevent the risk of arbitrary and discriminatory enforcement. State v. Tweedy, 219 Conn. 489, 502, 594 A.2d 906 (1991).

“The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.” State v. Schriver, supra, 207 Conn. 459-60. Where first amendment freedoms are not implicated, as in this case, “a claim that a statute is void for vagueness is determined by its applicability to the particular facts presented.” State v. Smith, 210 Conn. 132, 144, 554 A.2d 713 (1989).

The legislature did not provide a definition for “refused” in § 14-227a (f). It is not necessary to define a word that carries an ordinary, commonly understood meaning, is commonly used and is defined in standard dictionaries. See State v. Lewtan, 5 Conn. App. 79, 85, 497 A.2d 60 (1985). The word “refuse” is defined as “to show or express unwillingness to do or comply with. . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

To surmount a vagueness challenge, a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. State v. Schriver, supra, 207 Conn. 460. Under the facts presented here, the defendant’s claim that § 14-227a (f) is unconstitutionally vague must fail.

We construe the word “refuse” to have a sufficiently definite meaning that places an individual on adequate notice as to what conduct is prohibited. See State v. Linares, 232 Conn. 345, 358-59, 655 A.2d 737 (1995). Consequently, the dictionary definition makes it clear that “refusing” to take a breath test may be accomplished by a failure to cooperate as well as by an expressed refusal.

Thus, we conclude that § 14-227a (f) is not unconstitutionally vague under the United States constitution as applied to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) (1) provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both . . . .”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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

       There is no claim made that the advisement of rights was inadequate.

       The state asks that we not review this “unpreserved” claim of a violation of the state constitution. Our review of the record discloses that the defendant’s motion to suppress statements specifically referred to article first, § 8, of the constitution of Connecticut. While the motion is directed to statements made prior to the Miranda warnings as a result of a custodial interrogation, we deem it sufficient to have preserved the claim that the derivative evidence should have been excluded.

       The defendant does not appear to contest the voluntariness of the initial statement; his motion to suppress fails to bring forth a voluntariness claim. Our review of the record reflects that the defendant focused exclusively on the issue of whether the police were required to advise the defendant of his Miranda rights because of a custodial interrogation.

       General Statutes § 14-227a (f) provides: “In any criminal prosecution for a violation of subsection (a) or (b) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied. If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”

       Although the defendant claims a violation of both his state and federal constitutional rights not to incriminate himself, he has made no argument that his rights under the state constitution are different from or greater than his rights under the federal constitution and has not provided a separate analysis. We, therefore, consider only his claim under the federal constitution. State v. Steiger, 218 Conn. 349, 358 n.9, 590 A.2d 408 (1991).

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.”

       During the charge to the jury, the trial court instructed, inter alia: “Now the state offered evidence of the defendant’s refusal to submit to a breath test. The defendant had a right to refuse to take a breath test, but the question of whether or not he did refuse it is up to you. If you find that the defendant did refuse to submit to such a test . . . you may make any reasonable inference that follows from that fact.”

       Agreeing to take the test but failing to provide an adequate sample can be construed to be a refusal pursuant to § 14-227a (1). State v. Barlow, 30 Conn. App. 36, 42-44, 618 A.2d 579 (1993). The defendant indicates that “[t]he decision in Barlow is wrong.”