author: FOTI, J.

text:
    JUDITH DOBUZINSKY ET AL. v. MIDDLESEX MUTUAL ASSURANCE COMPANY
    (AC 17278)
    Foti, Lavery and Sullivan, Js.
    Argued April 29
    officially released July 14, 1998

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellants (plaintiffs).

      William F. Tieman, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiffs, Judith Dobuzinsky and George Dobuzinsky, appeal from the judgment of the trial court denying their application to vacate, correct or modify an arbitration award issued to resolve a dispute between the plaintiffs and the defendant, Middlesex Mutual Assurance Company, concerning the plaintiffs’ entitlement to uninsured motorist benefits. On appeal, the plaintiffs claim that the trial court improperly confirmed the arbitrators’ award, which failed (1) to apply the limits of the uninsured motorist coverage separately to the plaintiff George Dobuzinsky’s claim and (2) to allow “intrapolicy stacking” of the uninsured motorist benefits available to the plaintiffs. We agree with the first of the plaintiffs’ claims and, therefore, reverse the judgment of the trial court.

The following facts are undisputed. On or about January 7, 1991, an automobile insurance policy was issued by the defendant to the plaintiffs. This policy was in effect on June 19, 1992, and provided, inter alia, uninsured motorist coverage to the plaintiffs. On June 19, 1992, the plaintiffs were injured in an automobile accident caused by the negligence of an uninsured motorist. Both plaintiffs filed claims against the defendant seeking payment of uninsured motorist benefits under the policy.

On April 26, 1995, and on dates thereafter, a three member arbitration panel met to adjudicate the plaintiffs’ claims. Prior to the arbitration hearing, the parties agreed that the claim of the plaintiff Judith Dobuzinsky would be considered before the claim of the plaintiff George Dobuzinsky. On May 12,1995, a majority of the arbitrators issued an award in favor of the plaintiff Judith Dobuzinsky. The arbitrators found that the policy provided for $300,000 of uninsured motorist coverage per accident. The arbitrators awarded the plaintiff Judith Dobuzinsky the entire $300,000 available under the policy, reduced by the amount of $35,000 previously paid to her by the defendant, for a total award of $265,000. The arbitrators made no award to the plaintiff George Dobuzinsky on the ground that the coverage was exhausted by the award to the plaintiff Judith Dobuzinsky.

On June 2, 1995, the plaintiffs filed an application to vacate, correct or modify the arbitrators’ award. The plaintiffs claimed that the arbitrators improperly failed (1) to allow intrapolicy stacking of the plaintiffs’ uninsured motorist coverage and (2) to award sufficient damages. On June 15,1995, the defendant filed a motion to confirm the arbitrators’ award. On October 29, 1996, the trial court issued its memorandum of decision denying the plaintiffs’ application to vacate, correct or modify the arbitrators’ award and granting the defendant’s motion to confirm the award.

On November 15, 1996, the plaintiffs filed a motion to reargue the trial court’s decision pursuant to Practice Book § 204B, now Practice Book (1998 Rev.) § 11-12. In their motion, the plaintiffs alleged that “[t]he court failed to decide the claim of the plaintiffs that the plaintiff George Dobuzinsky and the plaintiff Judith Dobuzinsky stated separate claims for which they were separately insured, and [that] the $300,000 was applicable to each claim. The arbitrators decided merely that there was a single $300,000 limit, and awarded $300,000 to the plaintiff Judith Dobuzinsky and nothing to the plaintiff George Dobuzinsky.” The plaintiffs also alleged that the trial court improperly determined that they were not entitled to stack their uninsured motorist coverage under the policy. On May 19, 1997, the trial court issued its supplemental memorandum of decision in which it stated that “[t]his court believes that all of the claims raised by the plaintiffs in their application to vacate the arbitration award were considered in accordance with the appropriate standards and application of the decision in [Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 627 A.2d 1319 (1993)]. No change to this court’s ruling of October 29, 1996, has been shown by the plaintiffs to be warranted.” This appeal followed.

We first set forth our standard of review of a statutorily mandated or compulsory arbitration award. “When an arbitration panel’s interpretation and application of the law is at issue, an appellate court must conduct a de novo review. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 655 n.11, 591 A.2d 101 (1991).” Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 576, 609 A.2d 1008 (1992), aff'd, 225 Conn. 257, 622 A.2d 572 (1993); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). Conversely, the appropriate standard of review of the factual findings of an arbitration panel is the substantial evidence test. Chmielewski v. Aetna Casualty & Surety Co., supra, 656. Pursuant to this test, the reviewing court must determine whether there is substantial evidence in the record to support the arbitrators’ findings of basic fact and whether the conclusions drawn from those facts axe reasonable. Id., 660-61 n.15; Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990).

I

The plaintiffs first claim that the trial court improperly affirmed the arbitrators’ award, which failed to apply the limits of the uninsured motorist coverage separately to the plaintiff George Dobuzinsky’s claim. The plaintiffs argue that because the insurance contract provides both that the limits of uninsured motorist coverage are applicable “once per claim” and “once per accident,” the contract is ambiguous and should be construed in favor of the plaintiffs to allow the plaintiff George Dobuzinsky to recover a separate award of uninsured motorist benefits.

As a preliminary matter, we must address the defendant’s argument that the plaintiffs did not properly preserve their claim that the arbitrators improperly failed to apply the limits of the uninsured motorist coverage separately to the plaintiff George Dobuzinsky’s claim. The defendant argues that the plaintiffs raised this claim for the first time in their motion for reargument and that no such claim was made during the arbitration proceedings.

Our review of the record reveals that the plaintiffs filed a brief with the arbitration panel, titled, “Uninsured Motorist Policy Coverage.” In that brief, the plaintiffs argued that “[i]f intrapolicy stacking of uninsured motorist benefits is awarded, there is a maximum coverage of $900,000 available for the claim of Judith Dobuzinsky and a further $900,000 available for the claim of George Dobuzinsky; if stacking is not allowed, then based on the language of the policy application, there is $300,000 coverage for each claim.”

In their application to vacate, correct or modify the arbitrators’ award, the plaintiffs alleged that the arbitrators “failed to award sufficient damages.” Furthermore, the plaintiffs filed a memorandum of law in support of their application, in which they raised their claim that the arbitrators’ failure to apply the policy limits separately to the plaintiff George Dobuzinsky’s claim requires that the award be set aside. The plaintiffs also raised their claim during the hearing on their application to vacate, correct or modify the arbitrators’ award. Finally, the plaintiffs filed a motion for reargument when the trial court’s memorandum of decision failed to address the plaintiffs’ claim. We conclude, therefore, that the issue of the plaintiff George Dobuzinsky’s entitlement to a separate award of uninsured motorist benefits was sufficiently raised before both the arbitration panel and the trial court, and has been adequately preserved for our review.

The application of insurance signed by the plaintiff George Dobuzinsky describes the uninsured motorist coverage as “combined single limit” “$300,000 each accident.” The reverse side of the application provides, however, that “the limits of UNINSURED . . . MOTORIST COVERAGE are applicable ONCE per claim regardless of the number of vehicles or operators on the policy now or in the future.” The application also provides that “if accepted, [the application] shall become a part of the contract of insurance . . . .”

The policy declarations subsequently mailed to the plaintiffs describe the uninsured motorist coverage as “$300,000 per accident.” Furthermore, the text of the policy provides that “[t]he maximum limit of [the defendant’s] liability for Uninsured Motorists Coverage in any one accident is the amount of the Uninsured Motorists Coverage limits shown in the Declarations. This is the most [the defendant] will pay regardless of the number of: (1) Covered persons; (2) Claims made; (3) Vehicles involved in the accident; or (4) Covered autos.”

“It is the function of the court to construe the provisions of the contract of insurance. . . . An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . .

“If . . . the insurance coverage is defined in terms that are ambiguous, such ambiguity is . . . resolved against the insurance company. Where the terms of the policy are of doubtful meaning, the construction most favorable to the insured will be adopted. . . . [T]his rule of construction favorable to the insured extends to exclusion clauses. ... A necessary predicate to this rule of construction, however, is a determination that the terms of the [exclusion clause] are indeed ambiguous. . . . Thus, a court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . and [t]he fact that the parties advocate different meanings of [an] exclusion clause does not necessitate a conclusion that the language is ambiguous. . . . Finally, because the proper construction of a policy of insurance presents a question of law, the trial court’s interpretation of the policy is subject to de novo review on appeal.” (Citations omitted; internal quotation marks omitted.) Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481-83, 697 A.2d 680 (1997).

Applying the foregoing principles to the policy terms at issue in this case, we conclude that the contract provisions setting forth the limits of the uninsured motorist coverage available to the plaintiffs are ambiguous and, therefore, must be construed in favor of the plaintiffs. The application of insurance signed by the plaintiff George Dobuzinsky, as well as the policy declarations and the text of the policy itself, all provide that the limits of the uninsured motorist coverage are applicable on a per accident basis. The application also provides, however, that the limits of the uninsured motorist coverage are applicable once per claim.

The defendant argues that the insurance contract is not ambiguous because the “body of the policy” clearly indicates that the limits of the uninsured motorist coverage are applicable on a per accident basis. We disagree. The application signed by the plaintiff George Dobuzinsky states that “if accepted, [the application] shall become a part of the contract of insurance . . . .” The parties, therefore, clearly agreed to make the application for insurance part of the insurance contract between the parties. See 13A J. Appleman & J. Appleman, Insurance Law and Practice (1994 Sup.) § 7583, pp. 46-47 (when application for insurance is made part of insurance contract by reference, contract must be construed according to terms therein as amplified, extended or modified by application). Our Supreme Court has held that “[w]hen interpreting [an insurance policy], we must look at the [policy] as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, [843], 669 A.2d 1221 (1996).” (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 545-46, 687 A.2d 1262 (1996).

We conclude that the terms of the insurance application and policy that apply the limits of the uninsured motorist coverage on a per accident basis, and the term of the application applying the limits on a per claim basis are irreconcilable and therefore render the insurance contract ambiguous. Accordingly, because any uncertainty caused by that ambiguity must be resolved against the insurer; Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980); we conclude that the limits of the uninsured motorist coverage available to the plaintiffs under the policy should be applied separately to the plaintiff George Dobuzinsky’s claim.

II

The plaintiffs next claim that the trial court improperly affirmed the arbitrators’ award, which failed to allow intrapolicy stacking of the uninsured motorist benefits available to the plaintiffs. Specifically, the plaintiffs claim that their uninsured motorist coverage for each of the automobiles listed on their insurance policy with the defendant should be aggregated or stacked to provide $900,000 worth of coverage on three cars that were each insured for $300,000. We disagree.

In Kent v. Middlesex Mutual Assurance Co., supra, 226 Conn. 437, our Supreme Court held that “[t]he availability of stacking depends upon the reasonable expectations of the parties to the contract, a determination to be gleaned from the facts and circumstances of each case.” In Kent, the court relied on several factors to determine that the plaintiffs had no reasonable expectation that the amount of their underinsured motorist coverage would be stacked. Among the factors considered by the court were (1) the plaintiffs’ testimony that they had no expectation of stacked coverage, (2) the language of the policy documents specifically excluding stacking and (3) the plaintiffs’ payment of a single actuariaily appropriate premium for the underinsured motorist coverage. Id., 434-40. The court stated that “we have found stacking to be available when the insured has paid separate premiums for the [uninsured] motorist coverage afforded to each vehicle. . . . The reason for this is the common sense notion that such a result falls within the reasonable expectations of the parties to the insurance contract . . . because an insured who pay[s] a double premium [can reasonably] expect double coverage. . . . We have noted that [t]his is particularly true when each of the insured vehicles is separately described, the coverage granted under the policy is separately listed for each vehicle, and a separate premium is charged for the coverage afforded to each of the described vehicles.” (Citations omitted; internal quotation marks omitted.) Id., 432-33; Glens Falls Ins. Co. v. Sybalsky, 46 Conn. App. 313, 320-21, 699 A.2d 258, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997).

In the present case, there was substantial evidence to support the arbitrators’ determination that the plaintiffs could not have had a reasonable expectation of stacked coverage. The plaintiff George Dobuzinsky signed the application for insurance immediately following the statement: “I understand and acknowledge that the limits of UNINSURED . . . MOTORIST COVERAGE are applicable ONCE per claim regardless of the number of vehicles or operators on the policy now or in the future.” Moreover, the insurance policy subsequently mailed to the plaintiffs provided in part that “the maximum limit of [the defendant’s] liability for Uninsured Motorists Coverage in any one accident is the amount of the Uninsured Motorists Coverage limits shown in the Declarations. This is the most [the defendant] will pay regardless of the number of . . . Covered autos.” (Emphasis in original.) Finally, the declarations page of the insurance policy specified the limits of coverages and premiums due. Although separate premiums are listed for each of the three vehicles insured by the policy for the bodily injury, basic reparations, property damage and collision coverages, there is no separate premium listed for the uninsured motorist coverage. Instead, the declarations provide that uninsured motorist coverage is limited to “$300,000 per accident” “one premium per policy: $46.00.” We note that language identical to that contained in the policy documents in this case has been construed by our Supreme Court to specifically exclude stacking. See Kent v. Middlesex Mutual Assurance Co., supra, 226 Conn. 434-36.

Despite the unequivocal language of the policy excluding stacking, the plaintiffs argue that the arbitrators misapplied the standard enunciated by our Supreme Court in Kent because they failed to consider evidence that the plaintiffs’ insurance agent led them to believe the policy provided for stacked coverage. In addition, the plaintiffs argue that there was no evidence presented by the defendant that the single $46 premium for uninsured motorist coverage was “actuarially appropriate” for coverage of $300,000.

We do not agree that our Supreme Court’s decision in Kent v. Middlesex Mutual Assurance Co., supra, 226 Conn. 427, requires an arbitration panel to place particular emphasis on any single factor in determining whether the parties to the contract had a reasonable expectation of stacked coverage. Rather, the court stated that “[t]he availability of stacking depends upon the reasonable expectations of the parties to the contract, a determination to be gleaned from the facts and circumstances of each case.” (Emphasis added.) Id., 437. In Kent, although the court relied on the fact that the premium charged for uninsured motorist benefits was “actuarially appropriate” for nonstacked coverage, it did not require the insurer to produce such evidence to establish that the parties to the contract had no reasonable expectation of stacked coverage. Id.

We conclude that there was substantial evidence to support the arbitrators’ determination that the plaintiffs could not have had a reasonable expectation that their uninsured motorist coverages would be stacked when they purchased their insurance policy from the defendant. The plaintiffs did not pay separate premiums for the uninsured motorist coverages that would entitle them to aggregate coverage. Moreover, the insurance policy at issue expressly excludes stacking. The plaintiffs, therefore, are not entitled to stacked or aggregate coverage.

The judgment is reversed and the case is remanded with direction to render judgment granting the plaintiffs’ application to vacate the arbitration award and remanding the case to the arbitration panel for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Intrapolicy stacking is the aggregation of the limits of liability for uninsured and underinsured motorist coverage of each automobile covered under one insurance policy. Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 428 n.3, 627 A.2d 1319 (1993); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388-89 n.2, 446 A.2d 1059 (1982), overruled in part, Covenant Ins. Co. v. Coon, 220 Conn. 30, 30 n.6, 594 A.2d 977 (1991).

       The defendant also argues that the plaintiffs are estopped to raise this issue because the parties agreed that Judith Dobuzinsky’s claim would be considered by the arbitrators first. We find no basis in the record on which to conclude that the plaintiffs’ agreement to allow the arbitrators to consider Judith’s claim first in any way constituted an agreement to forgo George Dobuzinsky’s claim that he was entitled to a separate application of the uninsured motorist limits to his claim. We conclude, therefore, that the plaintiffs are not estopped to raise the issue of George Dobuzinsky’s entitlement to a separate award of uninsured motorist benefits.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIAM MORRIS
    (AC 16144)
    Foti, Lavery and Sullivan, Js.

      Argued April 29
    officially released July 14, 1998

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis O’Connor, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, following a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21, and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). The defendant claims that the trial court improperly (1) failed to vacate his conviction of sexual assault in the first degree because it was a lesser included offense of sexual assault in the second degree, (2) permitted the state to amend the information and (3) instructed the jury on the charge of risk of injury to a child. The defendant also claims that his conviction of both risk of injury to a child and sexual assault in the fourth degree, based on a single act, constitutes multiple punishment for the same offense in violation of his constitutional right against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, a female child bom on March 5,1979, lived with her mother and stepfather. The defendant is the biological father of the victim. The defendant worked with the victim’s stepfather and often drove him to and from work. Sometime between June, 1991, and March, 1992, the defendant was visiting at the home of the victim and had occasion to be alone with her. The defendant fondled the victim’s breast, placing his hand both over and under her shirt. He told her that was what boys would do when she got older. The victim did not report the defendant’s conduct at that time.

Approximately one to two weeks later, the defendant approached the victim while she was playing outside her home. He asked her to come closer, and when she did, he unzipped his pants, took out his penis and placed the victim’s hand on it. He then put his hand inside the victim’s pants and inserted his finger in her vagina. Shortly thereafter, he removed his finger and placed his penis against her pubic area. The victim was frightened and did not call out. The defendant asked her to sleep with him and said it would be all right because he could not impregnate her. He also told her she would get into trouble if she told anyone what he had done with her.

I

The defendant first claims that his conviction of sexual assault in the first degree should have been vacated because under the statutes in effect at the time of the alleged sexual assault, sexual assault in the first degree is a lesser included offense of sexual assault in the second degree. He argues that the provisions of § 53a-70 (a) (2) prohibit sexual intercourse with a person under thirteen years of age and that because at the time of the alleged sexual assault, the provisions of General Statutes (Rev. to 1991) § 53a-71 (a) (1) prohibited sexual intercourse with a person under sixteen years of age, including a person under thirteen years of age, § 53a-71 (a) (1) clearly included within its provisions the crime envisioned by § 53a-70 (a) (2). In charging the defendant, the state’s attorney charged in the alternative because the victim could have been either twelve or thirteen years of age when the crime occurred.

The defendant concedes that this claim was not properly preserved and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on a claim of constitutional error not preserved at trial only by satisfying the four conditions of Golding: Id., 239-40. We are free, however, to dispose of an unpreserved claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Jenkins, 40 Conn. App. 601, 604, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996).

“There is no fundamental constitutional right to a jury instruction on every lesser included offense; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. Id., 588.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996).

Because there is no fundamental constitutional right to a jury instruction on every lesser included offense, the defendant’s claim fails to satisfy the second requirement of Golding, We therefore do not review this claim.

II

The defendant next claims that the trial court improperly allowed the state’s attorney, during jury deliberations, to amend the information regarding the time of the offenses. The defendant claims that his case “is unique and readily distinguishable from the line of cases which find no prejudice resulting from an amendment which alters the alleged time of an offense after commencement of trial.”

The facts relevant to this claim are as follows. Prior to trial, the defendant was charged by information with offenses committed between January, 1992, and March, 1992. During the course of the trial, the victim testified that both incidents occurred before her thirteenth birthday, which fell on March 5, 1992. There was, however, conflicting testimony on that point.

During its deliberations, the jury requested to have some testimony reread. Thereafter, the jury informed the court by note that it had found that the offenses did not take place within the time frame alleged in the information. The jury requested guidance from the court. Because the defense put forth by the defendant at trial was that the offenses had not occurred, the state requested that the jury be instructed that time was not an essential element. The court suggested that the state amend the information. The state agreed and the trial court overruled the defendant’s objection, concluding that the amendment was proper pursuant to Practice Book § 624, now Practice Book (1998 Rev.) § 36-18, and that the defendant was not prejudiced by the amendment.

The state then amended the information to allege that the offenses occurred sometime between June 21, 1991, and March, 1992. The jury resumed its deliberations and subsequently declared itself deadlocked. After receiving further instructions from the court and having more testimony reread, the jury reached its verdict.

Once a trial has started, the prosecutor’s broad authority to amend an information is constrained by the provisions of Practice Book § 624, now Practice Book (1998 Rev.) § 36-18. State v. Snead, 41 Conn. App. 584, 590, 677 A.2d 446 (1996). “Practice Book § 624 is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend.” State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). It is the defendant’s burden to “provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” State v. Mazzetta, 21 Conn. App. 431, 438, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). The sole limiting requirement under § 624, is that no additional or different offense may be charged in an amendment, and no substantive rights of the defendant may be prejudiced by an amendment.

A trial court may, within its discretion, permit the state, after the trial has commenced, to amend the information to conform to the evidence, provided the defendant’s due process rights are not prejudiced. State v. Adams, 38 Conn. App. 643, 649, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995). The trial court’s decision to allow an amendment to the information to conform to the evidence is subject to reversal only for an abuse of discretion. State v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978).

We conclude that the defendant has not shown that the amended information prejudiced him or that the trial court’s ruling was an abuse of discretion. The amendment was permissible under § 624, and it adequately notified the defendant of the charges against which he was required to defend.

III

The defendant finally claims that to subject him to punishment for both risk of injury to a child and sexual assault in the fourth degree, for the single act of fondling the victim’s breast, is a violation of his fifth amendment right against double jeopardy.

The defendant concedes that in State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), our Supreme Court found no double jeopardy bar to the conviction of a defendant at a single trial of both risk of injury to a child and sexual assault in the fourth degree on the basis of conduct identical to that alleged in this case, i.e., the touching of a female child’s breast. The defendant also recognizes that that decision relied on the earlier case of State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982). The defendant argues that Perruccio and McCall may be distinguished from the present case because in those cases the defendants were each charged with risk of injury to a child in a nonspecific information, alleging the commission of an act likely to impair both the health and morals of a child. In this case, the information alleges only that the defendant committed an act likely to impair the morals of a child. The defendant claims, therefore, that to convict him of risk of injury to a child, the state was required to prove only that he touched the child’s breast in a sexually indecent manner. The defendant argues that because the proof required to convict him of risk of injury to a child is identical to the proof required to satisfy the element of “sexual contact” found in the crime of sexual assault in the fourth degree, the two crimes constitute one offense for double jeopardy purposes. See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

“The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. This clause prohibits not only multiple trials for the same offense but also multiple punishment for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

“This constitutional provision applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993). Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990).” (Internal quotation marks omitted.) State v. Braswell, 42 Conn. App. 264, 268-69, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997).

In analyzing whether the defendant’s conviction of both risk of injury to a child and sexual assault in the fourth degree for the single act of fondling the victim’s breast violates double jeopardy principles, we must focus “on the offenses and whether each offense requires proof of a fact that the other does not.” (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 53-54, 630 A.2d 990 (1993). Although the charges arise out of the same act, each offense requires proof of a fact that the other does not. The offense of sexual assault in the fourth degree requires proof that the victim was under fifteen years of age, whereas the offense of risk of injury to a child requires proof that the victim was under the age of sixteen. Additionally, the element of “sexual contact,” included within the offense of sexual assault in the fourth degree, is not necessarily equivalent to the touching of the private parts of a child in a “ ‘sexual and indecent manner’ State v. Schriver, 207 Conn. 456, 463, 542 A. 2d 686 (1988); prohibited by the risk of injury to a child statute. The term “sexual contact” is defined as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (3). The mental state required for the offense of sexual assault in the fourth degree, therefore, is clearly different from that required for the offense of risk of injury to a child.

We conclude that under the Blockburger test, the offense of risk of injury to a child and the offense of sexual assault in the fourth degree are not the same offense for double jeopardy purposes. Further, the defendant has provided us with no analysis of the legislature’s intent that these two statutes should be treated as one for double jeopardy purposes, thereby failing to rebut the presumption under Blockburger that there are two crimes that may warrant two punishments. State v. Nita, 27 Conn. App. 103, 115-16, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A. 2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992). We, therefore, conclude that there was no double jeopardy violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       No verdict was returned on an additional count charging sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), as it merged into the count charging sexual assault in the first degree by the jury’s verdict on that count.

       The defendant withdrew this claim on appeal during oral argument.

       The victim testified that both of these incidents took place before March 5, 1992, her thirteenth birthday.

         The information provides in relevant part: “COUNT ONE: The undersigned Senior Assistant State’s Attorney accuses the defendant, WILLIAM MORRIS, of the crime of SEXUAL ASSAULT IN THE FIRST DEGREE, and alleges that on a date between June 21,1991, and March, 1992, in the evening horns, in a yard at 1416 Meriden-Waterbury Road, Southington, Connecticut, the defendant engaged in sexual intercourse, to wit, digital intercourse with the complainant, and the complainant was under thirteen (13) years of age, in violation of Connecticut General Statutes § 53a-70 (a) (2) (Revised to 1991).
      “COUNT TWO: The undersigned Senior Assistant State’s Attorney further accuses the defendant, WILLIAM MORRIS, of the crime of SEXUAL ASSAULT IN THE SECOND DEGREE, and alleges that on the same date as in Count One, at the same time as in Count One, at the same place as in Count One, the defendant, WILLIAM MORRIS, engaged in sexual intercourse, to wit, digital intercourse with the complainant, and the complainant was thirteen (13) years of age or older, but under sixteen (16) years of age, in violation of Connecticut General Statutes § 53a-71 (a) (1) (Revised to 1991)."

       The four conditions of Golding are as follows: “(1) [T]he record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       In addition, the defendant’s claim does not satisfy the third requirement of Golding.

       Practice Book § 624, now Practice Book (1998 Rev.) § 36-18, provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.” For purposes of § 624, now § 36-18, a criminal trial begins with the voir dire of prospective jurors. State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993).

       The state argues that the defendant did not raise a double jeopardy claim at trial and, therefore, that this claim is unpreserved. Our review of the record discloses that the defendant objected to the trial court’s instructions as to the crime of risk of injury to a child. The defendant argued that the court’s instructions required the jury, should it “find the defendant guilty of either sexual assault two or one on the first incident or sexual assault four on the second, [to] necessarily find him guilty of risk of injury to a [child]. So I object to that.” We conclude, therefore, that the issue of double jeopardy was vaguely and impliedly raised by the defendant.

       “The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger [supra, 284 U.S. 304] as follows: [w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Internal quotation marks omitted.) State v. Braswell, 42 Conn. App. 264, 269 n.5, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997).

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than live hundred dollars or imprisoned not more than ten years or both."
      General Statutes (Rev. to 1991) § 53a-73a (a) provides in relevant part:
      “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       See footnote 10.

       General Statutes § 53a.-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. ANTONIO RIGUAL
    (AC 16019)
    Foti, Landau and Sullivan, Js.
    Argued March 23
    officially released July 14, 1998

      G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Antonio Rigual, appeals from the judgment of conviction, rendered after a juiy trial, of attempted assault of a peace officer in violation of General Statutes §§ 5-3a-49 and 53a-167c (a) (l) and the commission of a felony with a firearm in violation of General Statutes § 53-202k. On appeal, the defendant claims that the trial court improperly (1) instructed the jury on self-defense, (2) denied the defendant’s motion to require the state to provide a race neutral reason for the exercise of a peremptory challenge to a prospective juror and (3) sentenced the defendant under § 53-202k.

The jury reasonably could have found the following facts. On the afternoon of February 23, 1995, Detectives Richard Donaldson and Robert Martin of the Bridgeport police department were investigating a homicide that occurred the day before. In the course of their investigation, they were informed that Albert Aponte was one of the persons responsible for the crime. They were searching for Aponte when they saw him on the porch of a house in the Park Terrace area. When Aponte saw Donaldson, Aponte went into the house and closed the door. The two detectives got out of their car, intending to arrest Aponte on outstanding warrants and to question him about the homicide. Martin ran into the house and Donaldson ran to its rear.

Martin looked for Aponte on the second and third floors of the house but did not find him. While in the rear of the house, Donaldson saw the defendant on the second floor porch landing. Donaldson, who was carrying a hand-held police radio, pointed to the radio and said, “Don’t move. Police.” The defendant ran to the other end of the porch. Donaldson told the defendant, “Stop. Police. Get on the ground, get on the ground.” Donaldson then drew his gun, and the defendant went into the house through a window. The defendant then came back onto the porch, through the window and Donaldson told him again, “Get on the ground. Police.” The defendant said, “Fuck you,” and went back into the house through the window. Donaldson then yelled for Martin and, as he did, heard a shot. When Donaldson looked up, he saw the defendant leaning over the rail and firing at him. Donaldson and the defendant fired shots at each other. Donaldson used his radio to call for assistance.

Martin heard Donaldson yell, “Bob, get back here. Bob, get back here.” When Martin reached the rear of the house, he heard shots and saw a male shooting at Donaldson from the second floor. When Martin could no longer see Donaldson or the defendant and when the shooting had stopped, he returned to the front of the house and fired one shot at a person he thought was shooting at Donaldson.

As Donaldson was reloading his weapon, the defendant ran down the porch stairs yelling, “I got you now, you fucking pig.” When the defendant saw that Donaldson had his gun loaded, he ran back up the stairs. Donaldson then fired three more shots and wounded the defendant. At this point, more police officers arrived at the scene.

I

The defendant’s first claim is that the trial court improperly charged the jury on self-defense by instructing that if Donaldson was identifiable as a police officer, the defendant “had no right to use any force whatsoever.” The defendant asserts that this created a per se exclusion to the defense, which is unsupported by General Statutes § 53a-19 or the common law. The defendant claims that he was acting in defense of himself and also in defense of the other occupants of the house where the confrontation occurred.

The standard of review to be applied to the defendant’s claim is whether it is reasonably possible that the jury was misled by the court’s instruction. State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994); State v. Corchado, 188 Conn. 653, 661, 453 A.2d 427 (1982). “In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the puipose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

In its charge to the jury, the court read the relevant parts of the self-defense statute and then stated the following: “Under Connecticut’s self-defense statute, a person may justifiably use deadly physical force in self-defense if he reasonably believes both (1) his attacker is using or about to use deadly physical force against him or another, or is inflicting or about to inflict great bodily harm and (2)—they have to find (1)—and (2) that deadly physical force is necessary to repel such attack. The test which you, the jury, must apply in analyzing the second requirement, that the defendant reasonably believed that deadly force as opposed to some lesser degree of force was necessary to repel an alleged attack, is what the courts have referred to as a subjective-objective one. You must view the situation from the perspective of [the defendant], and the law requires that his belief ultimately must be found to have been reasonable. The subjective-objective inquiry into the defendant’s belief regarding the necessary degree of force requires that you, the jury, make two separate, affirmative determinations in order for [the defendant’s] claim of self-defense to succeed. You must determine first whether on the basis of all the evidence presented, he in fact did believe that he needed to use deadly physical force as opposed to some lesser degree of force in order to repel the alleged attack by the police. Your initial determination, therefore, requires that you assess the veracity of all witnesses, including [the defendant], and determine whether [the defendant’s] account of his belief and the necessity to use deadly force at the time of the confrontation with Detective Donaldson is in fact credible. If you determine that [the defendant] did not believe at the time of the incident that he had needed to employ deadly physical force to repel Detective Donaldson, your inquiry ends and the defendant’s self-defense claim must fail. If you determine that [the defendant] in fact did believe that the use of deadly force was necessary to preserve his own life and the lives of others, you must then make a further determination, that is, whether that belief was reasonable from the perspective of a reasonable person in [the defendant’s] circumstance.

“Thus, to summarize, if you find that [the defendant] did in fact believe that the use of deadly force in this case was necessary to preserve his own life or the lives of others, and if you also find that his belief was reasonable under the circumstances, then he has prevailed on his self-defense claim and you must find him not guilty of the charges. If, however, you determine that [the defendant] did not believe that the use of deadly force was necessary or that [the defendant’s] honest belief that he needed to use deadly force instead of some lesser degree of force was not a reasonable belief, then he is not entitled to the protection of the Connecticut self-defense law.

“Further, if you are satisfied that [the defendant] reasonably would have identified the officer as a police officer under all those circumstances, then he had no right to use any force whatsoever, but his obligation then was to accede to the request of the police officer.” (Emphasis added.) This sentence is at the heart of the defendant’s claim.

The above statement was supplemented, however, by a further charge to the jury on self-defense. “While it is true that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law ... an incorrect instruction to the jury may be cured by a later correct instruction . . . .” (Internal quotation marks omitted.) State v. Brown, 35 Conn. App. 699, 707, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994).

In its recharge on the matter of self-defense, the court stated to the jury: “Now, can he come out and engage in conduct with the person that he did, and can he continue to escalate the defense by returning to the dwelling, obtaining what he did, and coming back out and was then firing a gun at the person in the backyard. Your determination as to what his knowledge was is most important. Does he have any knowledge in his own mind at that time from the evidence in this case? What do you believe? Did he know that Detective Donaldson was a police officer or did he not know he was a police officer? And you bring to bear upon that all other evidence in the case, including the defendant’s testimony that he didn’t know, and that Officer Donaldson did not tell him get down or sit down, but that he merely fired bullets at him and said other things, which didn’t allow this man to conclude they were not acting as police officers.

“Now, these are things for you to determine, and they bear on the defense of self-defense. If he had no knowledge that he was under an attack by unknown persons coming to assaultive behavior on the dwelling that he was located in, then he is entitled to the defense of self-defense if everything [is] in accordance with his principles, but he doesn’t have to prove that. The state has to disprove by satisfying you beyond all reasonable doubt that [the defendant], beyond a reasonable doubt, did not believe at the time of the incident that he needed to employ deadly physical force to repel Detective Donaldson. If you believe that he did not believe that beyond a reasonable doubt, then your inquiry ends and the defendant’s self-defense claim must fail.”

The jury then deliberated all of Friday. On Monday, the court again recharged the jury on self-defense. The trial judge advised the jury that he was giving a supplemental charge on the defense of self-defense to clarify what he had previously stated. As part of that supplemental instruction, the court charged the jury as follows: “It may be concluded from the statute that a man who is being assaulted or who reasonably believes that he is about to be assaulted may use force in such a degree as he reasonably believes is necessary for his defense. The moment he steps over the line and uses more force than he reasonably believes is necessary, then he becomes a wrongdoer and he becomes guilty of the crime itself. The test is not what force is actually necessary to protect himself from the use or imminent use of force. Rather, the test is what force did he, acting as a reasonable man, believe to be necessary under the circumstances.

“Now, ‘reasonably’ means what an ordinary prudent man, a man of ordinary mental and physical capacity, using his faculties in a normal manner, might do or perceive in a given set of circumstances, a man of common sense acting in a common sense manner. A reasonable belief is a belief generated by the particular circumstances fairly created and honestly entertained.

“Now, in determining what the defendant reasonably believed, you should ask whether an ordinary prudent man, a man of ordinary mental and physical capacity using his faculties in a normal manner, might do or perceive. What would a man of common sense acting in common sense do under the circumstances that you find the defendant found himself in?

“The statute focuses on the person claiming self-defense. What would a man in the position of a defendant reasonably believe under the circumstances? You must view the—view the situation from the perspective of the defendant and, ultimately, you must find that the defendant’s belief was reasonable under the circumstances.”

In analyzing the defendant’s claim on appeal, “we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995). “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 95, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998). Here, the charge accurately stated the law, was adapted to the issues and facts of the case, and was sufficient to guide the jury.

II

The defendant’s second claim is that the trial court improperly denied his request that the state provide a race neutral explanation for the exercise of a peremptory challenge to a prospective juror. In the voir dire process, Domingos Bala was questioned as a prospective juror by both the state and the defendant. During voir dire, Baia stated that he had been arrested six months previously by a Bridgeport police officer for driving under the influence. The court asked Baia, “Are you Hispanic?” Baia responded, “Portuguese.” At the end of the voir dire questioning the defendant accepted Baia as a juror. The state exercised a peremptory challenge to excuse him. The defendant objected to the dismissal and stated that it was time for the state to reveal its reason for excusing Baia. After a discussion on the record with both counsel, the court stated: “They [the state] have a reason. They just haven’t been required to state it. And the way we are here, I can’t make them do that at this juncture.” The state never revealed its reason for excusing Baia.

The seminal case addressing juror discrimination claims is Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). “Batson delineates the process by which claims of discriminatory peremptory challenges are to be adjudicated. The defendant carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. Id., 94 n.18. As in other litigation involving allegations of racial discrimination, the adjudication of claims of discrimination in the selection of the petit jury normally proceeds through two stages. A defendant who is a member of a cognizable racial group must first establish a prima facie case of purposeful discrimination. Id., 96-97. Once that threshold has been crossed, the burden of production shifts to the state to advance a neutral explanation for its peremptory challenges of jurors of the defendant’s race. Id., 97. At this juncture, the defendant has an opportunity to show that the articulated reasons are insufficient or merely pretextual. ‘Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility’; id., 98 n.21; a trial court’s determination that there has or has not been intentional discrimination is ‘entitled to appropriate deference’ upon review on appeal. Id.” State v. Gonzalez, 206 Conn. 391, 395, 538 A.2d 210 (1988).

In Connecticut, a Batson hearing is appropriate whenever “[1] the defendant requests such a hearing; [2] the defendant is a member of a cognizable racial group; and [3] the prosecutor exercises peremptory challenges to remove members of [the] defendant’s race from the venire.” (Internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 646 n.4, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). An Hispanic is a member of a racially cognizable group. State v. Gonzalez, supra, 206 Conn. 396. The defendant, who is Hispanic, claims that he and Baia were members of the same cognizable racial group. When the trial court asked Baia if he was Hispanic, Baia answered that he was Portuguese. In this matter, there is no evidence that persons of Hispanic and Portuguese descent are from the same cognizable racial group. The defendant’s mere assertion that he is of the same racially cognizable group as Baia is not sufficient. Therefore, this court will not address whether the state had a valid race neutral reason for excusing Baia, since the defendant has not reached the threshold set out in either Batson v. Kentucky, supra, 476 U.S. 79, or State v. Holloway, supra, 636.

III

Finally, the defendant asks this court to vacate his conviction under § 53-202k because that statute constitutes a sentence enhancement provision for crimes committed with a firearm and does not constitute a separate substantive offense.

This issue is controlled by State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997). “[Section] 53-202k is a sentence enhancement provision and not a separate crime. Consequently, although the defendant’s total effective sentence of sixteen years was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.” Id., 150.

The judgment is reversed only as to the separate conviction under General Statutes § 53-202k and the case is remanded with direction to render judgment resentencing the defendant to a total effective term of fifteen years imprisonment, execution suspended after thirteen years, with five years probation.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor's criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       “[Defense Counsel]: I’m not questioning that. It is much too heavy a burden to raise, given that situation. All I’m saying, when somebody like this comes up, it is a member of a minority, the state should have to be required to state a reason.
      “The Court: You have no response, is that it?
      “[Assistant State’s Attorney]: If you want me to give a response. At this point, I don’t believe he has reached the threshold to have me give a response.
      “The Court: Yeah. Not under the present form of the law . . . .”


author: SCHALLER, J.

text:
    ELEANOR BEZZINI v. DEPARTMENT OF SOCIAL SERVICES
    (AC 16826)
    Schaller, Spear and Sullivan, Js.

      Argued January 21
    officially released July 21, 1998

      Michael C. Stumo, with whom, on the brief, was Timothy Brignole, for the appellant (plaintiff).

      Peter L. Brown, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Eleanor Bezzini, appeals from the judgment of the trial court upholding the determination of the department of social services (department) that the plaintiff is ineligible for Title XIX medical assistance benefits due to a transfer of assets. The principal issue is whether a transfer of assets from the plaintiffs spouse to beneficiaries other than the plaintiff, taking effect upon the death of the spouse, pursuant to the terms of a revocable inter vivos trust, renders the plaintiff ineligible for Title XIX medicaid benefits. We affirm the judgment of the trial court.

The relevant facts found by the fair hearing officer are essentially undisputed. On March 11,1993, the plaintiffs spouse, Charles Bezzini, who had been diagnosed with prostate cancer, established a revocable inter vivos trust, naming himself as the sole beneficiary during his lifetime. Charles Bezzini named the couple’s two sons, Guy Bezzini and Robert Bezzini, as the trustees and sole beneficiaries of the trust. The trust contained no provisions for the care and maintenance of the plaintiff. Charles Bezzini’s will left all residuary property in his estate to the trust to be distributed in accordance with its terms.

In April, 1993, the plaintiff began receiving adult day care services at Jefferson House. Title to Charles Bezzini’s home was transferred to the trust in May, 1993. During May, 1993, Charles Bezzini transferred all of the couple’s remaining assets to the trust. On June 3, 1993, Charles Bezzini died. The gross value of Charles Bezzini’s estate for succession tax purposes was determined to be $469,142.80. Pursuant to the terms of the trust, all assets of the trust were distributed to his two sons.

The plaintiff was cared for at home until October 8, 1993, when she was admitted to Fenwood Manor, a nursing home. She was discharged from Fenwood Manor on May 4, 1994, having incurred expenses of $33,088. The plaintiff is currently a resident of Riverside Health Center. She applied for Title XIX benefits on February 9, 1994. By preliminary decision dated February 17, 1994, the department denied the application on the basis that a disqualifying transfer of all of the couple’s assets occurred on June 3, 1993, within the thirty month “look back period” established by department regulations. The department determined that the plaintiffs ineligibility period began on June 3, 1993, and extended for thirty months. The fair hearing officer upheld the determination, concluding: “[Charles Bezzini] established a revocable trust in March, 1993. The assets at the time of the inception of the trust and for Title XIX eligibility purposes would not be divided, but rather totaled against such assistance limits. Upon the death of the spouse all of the assets due the assistance unit were transferred without receipt of fair value.”

The plaintiff appealed the decision to the Superior Court pursuant to General Statutes § 4-183. The trial court upheld the department’s decision, concluding that the distribution of assets pursuant to the trust upon Charles Bezzini’s death constituted a disqualifying transfer of assets without receipt of fair market value within the thirty month “look back period” from the date of the plaintiffs application for Title XIX benefits. The trial court also determined that the fair hearing officer properly found that Charles Bezzini’s intent, at least in part, was to qualify the plaintiff for medicaid benefits.

The plaintiff presents the following arguments in support of her position: (1) Because Charles Bezzini died prior to the plaintiffs application and all of his assets were distributed to persons other than the plaintiff, there were no assets of a spouse “living with” the plaintiff that could be “deemed” to the plaintiff; (2) the distribution of trust assets that occurred upon Charles Bezzini’s death did not constitute a “transfer” because, upon his death, the assets passed to the beneficiaries when his interest terminated by reason of death; and (3) the transfer of asset rules do not apply to a postmortem distribution of property by means of a will and, by analogy, by a revocable trust.

At the outset, we note our standard of review for all of the plaintiffs claims on appeal. Because we are reviewing the decision of an administrative agency, our review is highly deferential. See Neri v. Powers, 3 Conn. App. 531, 537, 490 A.2d 528, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985); see also General Statutes § 4-183 (j). “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . . Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642-43, 708 A.2d 202 (1998).” (Internal quotation marks omitted.) Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998).

In addition, we note the general framework of the medicaid program. “The federal medicaid program was enacted in 1965 as a cooperative federal-state endeavor designed to provide health care to needy individuals. 42 U.S.C. § 1396 et seq.; Atkins v. Rivera, 477 U.S. 154, 156, 106 S. Ct. 2456, 91 L. Ed. 2d 131 (1986). The program provid[es] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons. Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied, 448 U.S. 917, 101 S. Ct. 39, 65 L. Ed. 2d 1180 (1980). Clark v. Commissioner, 209 Conn. 390, 394, 551 A.2d 729 (1988). States are not required to participate in the program, but once a state chooses to adopt the program it must establish a plan conforming with the requirements of the federal statute. Id. Connecticut has elected to participate in the program and has assigned to the department the task of administering the program. General Statutes [Rev. to 1993] § 17-134a et seq. Matarazzo v. Rowe, 225 Conn. 314, 319, 623 A.2d 470 (1993).

“As originally enacted [the] Medicaid [Act] required participating States to provide medical assistance to categorically needy individuals who received cash payments under one of four welfare programs established elsewhere in the Act. . . . The categorically needy were persons whom Congress considered especially deserving of public assistance because of family circumstances, age, or disability. States, if they wished, were permitted to offer assistance also to the medically needy—persons lacking the ability to pay for medical expenses, but with incomes [or resources] too large to qualify for categorical assistance. Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981). [Matarazzo v. Rowe, supra, 225 Conn. 319.] Connecticut has chosen to cover the medically needy.” (Internal quotation marks omitted.) Forsyth v. Rowe, 226 Conn. 818, 823-24, 629 A.2d 379 (1993).

I

The plaintiff first claims that her husband’s assets in the revocable trust could not be “deemed” to her because, at the time she applied for medicaid assistance, Charles Bezzini was deceased and, therefore, was not “living with” her. The state responded to this claim at oral argument by indicating that the “deeming” regulation is irrelevant because the sole reason the plaintiff was disqualified from receiving medicaid benefits was due to the transfer of assets by her spouse without the receipt of fair market value. Thus, no assets of her spouse were “deemed” to her as the basis for denying her eligibility. We agree with the state.

The hearing officer based his determination on the specific language of the transfer of assets provision in the department’s regulations, not the spousal “deeming” provisions. In addition, both the department and the trial court, in affirming the hearing officer’s determination, relied principally on the specific language of the transfer of assets provision. In addition, the plaintiff never raised this claim before the department or the trial court.

Federal law provides the basic guideline to the states concerning ineligibility for Title XIX assistance based on a disqualifying transfer of assets. “[T]he State plan must provide for a period of ineligibility for nursing facility services ... in the case of an institutionalized individual . . . who, or whose spouse, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual . . . or . . . the date the individual applies for such assistance while an institutionalized individual, disposed of resources for less than fair market value.” (Emphasis added.) 42 U.S.C. § 1396p (c) (1). Thus, the federal statute specifically directs the state to formulate a period of ineligibility that includes any transfers by the applicant’s spouse.

The department’s implementing regulations provide that “[t]ransfers of assets which affect eligibility are those which are made by an institutionalized individual or his or her spouse . . . .” (Emphasis added.) Dept, of Income Maintenance, Uniform Policy Manual (1992) § 3027.05 (C). This regulation’s General Statement also supports our conclusion. “There is a period established . . . during which institutionalized individuals are not eligible for certain Medicaid services when they or their spouses dispose of assets for less than fair market value within certain time limits.” (Emphasis added.) Id., § 3027.05 (A). Thus, for determining ineligibility based on a transfer of assets without the receipt of fair market value, both the federal statute and the department’s regulations explicitly include transfers made by a spouse. We conclude, therefore, that the regulations concerning the deeming of assets between spouses are not relevant to this case because the transfer of asset rules accomplish the same objective without resort to the legal fiction of “deeming.”

II

The plaintiff next claims that the distribution of assets from the revocable trust that occurred on June 3, 1993, did not constitute a “transfer of assets” under the medicaid statutes and regulations because on the date of death, the plaintiffs spouse did not have a property interest that he could transfer. In essence, the plaintiff contends that by funding a revocable trust with assets, with no fair market value received in exchange, those assets are immunized from the medicaid penalty provisions. We are not persuaded.

The fair hearing officer determined that the transfer of assets occurred on June 3, 1993, the date on which the plaintiffs spouse died, when he no longer could exert any control over the assets in the revocable trust. This conclusion is correct because at any time until his death, the plaintiffs spouse could have revoked the trust and thereby gained access to all of the assets in the trust. Prior to his death, Charles Bezzini’s assets in. the revocable trust could have been “deemed” to the plaintiff, if she had applied for medicaid. See id., § 4025.65 (A). At the time of his death, the transfer occurred because, for the first time, the assets passed out of his control. Since that transfer occurred within the thirty month period, the assets in the trust are recaptured by the look back provisions. It would, therefore, be incorrect to conclude that the transfer of assets occurred prior to Charles Bezzini’s death because legal title did not pass irrevocably. This position is supported generally by our case law concerning property transfers via revocable trusts. See Bartlett v. Bartlett, 220 Conn. 372, 376-77, 599 A.2d 14 (1991) (beneficiary of revocable trust does not have vested property interest, but rather mere expectancy, until death of settlor renders trust irrevocable); Rubin v. Rubin, 204 Conn. 224, 230-32, 527 A.2d 1184 (1987) (same); see also Dalia v. Lawrence, 226 Conn. 51, 60, 627 A.2d 392 (1993) (beneficiary of trust savings account, Totten trust, does not acquire legal interest in funds on deposit until death of settlor); Salvio v. Salvio, 186 Conn. 311, 322-24, 441 A.2d 190 (1982) (same).

We conclude, therefore, that the transfer of assets occurred upon the death of the plaintiffs spouse by virtue of the trust. A termination of his interest in the trust is equivalent to a transfer to the beneficiaries. The assets distributed according to the terms of the trust are “brought back” from the beneficiaries for consideration for this purpose if the transfer occurred within the thirty months preceding the application for Title XIX benefits. The fact that the plaintiffs spouse had died and the assets had been disposed of prior to the application does not save them from being considered as existing assets of a spouse. To conclude otherwise would create an exception to the medicaid qualification rules whereby an applicant could avoid the transfer of assets provisions simply by establishing a revocable trust. This result clearly would be contrary to the legislative purpose underlying the medicaid program.

Our Supreme Court’s decision in Forsyth v. Rowe, supra, 226 Conn. 818, is instructive. In Forsyth, the court concluded that a trust that was established for the purpose of assisting an incompetent beneficiary with the proceeds from a tort recovery constituted a medicaid qualifying trust that served to disqualify the applicant. Id., 829-30. While that case is factually different from the present case, our Supreme Court’s recitation of the policies behind enforcement of the medicaid qualification rules is pertinent to this case. “Our conclusion reflects the legislative concern that the medicaid program not be used as an estate planning tool. The medicaid program would be at fiscal risk if individuals were permitted to preserve assets for their heirs while receiving medicaid benefits from the state. Congress enacted the medicaid qualifying trust provision as an addition to the ‘provisions designed to assure that individuals receiving nursing home and other long-term care services under Medicaid are in fact poor and have not transferred assets that should be used to purchase the needed services before Medicaid benefits are made available.’ H. Rep. No. 99-265, 99th Cong., 1st Sess. 71 (1985).” Forsyth v. Rowe, supra, 828-29.

The policy considerations articulated in Forsyth are applicable to this case, despite the fact that a medicaid qualifying trust is not present in this case. Accordingly, we conclude that the distribution of trust assets that occurred upon the death of the plaintiffs spouse constituted a transfer of assets under the medicaid rules that served to disqualify the plaintiff from receiving benefits.

III

The plaintiff claims finally that the transfer of asset rules do not apply to the postmortem distribution of property through a will, and by analogy they should not apply in this case to the Charles Bezzini trust, which was a will substitute. Specifically, the plaintiff claims that her spouse’s revocable trust was an equitable testamentary instrument that provided for their children postmortem. Since the trust served the same function as a will, to pass property to beneficiaries postmortem, the law of wills should be applied to this situation to determine the plaintiffs eligibility for medicaid assistance. We disagree.

A will is a unique kind of transfer, with special rules associated with the proper execution and administration thereof. Barnes v. Viering, 152 Conn. 243, 246, 206 A.2d 112 (1964); Crane v. Manchester, 143 Conn. 498, 500-501, 123 A.2d 752 (1956). The creation of a revocable trust is not a testamentary act and need not conform to the requirements of the common-law statute of wills. Cramer v. Hartford-Connecticut Trust Co., 110 Conn. 22, 33-34, 147 A. 139 (1929). Under a will, a spouse need only claim the spousal share if disinherited; see General Statutes § 45a-436; DelVecchio v. DelVecchio, 146 Conn. 188, 192-93, 148 A.2d 554 (1959). Alternatively, a spouse is unable to claim a spousal share against a trust. Cherniack v. Home National Bank & Trust Co., 151 Conn. 367, 370-71, 198 A.2d 58 (1964). The fact that the intent of the settlor may have encompassed several goals, including avoiding probate and eliminating estate administration expense, cannot evade a finding that one purpose was to qualify his spouse for medicaid benefits by improper means. The fact that the department could have drafted specific rules for inter vivos trusts applicable at that time does not preclude a determination that this transfer was improper under existing rules. We conclude, therefore, that the rules applicable to wills should not be applied to the plaintiffs situation where a revocable trust was the chosen instrument of the plaintiffs spouse.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 17-134a provides in relevant part: “The commissioner of income maintenance is authorized to take advantage of the medical assistance programs provided in Title XIX, entitled ‘Grants to States for Medical Assistance Programs,’ contained in the Social Security Amendments of 1965 and may administer the same in accordance with the requirements provided therein . . .
      General Statutes (Rev. to 1993) § 17-134d provides in relevant part: “The commissioner of income maintenance may make such regulations as are necessary to administer the medical assistance program. . . .”

       Our review of the department’s current regulations reveals further support for the department’s conclusion that the plaintiff was ineligible for medicaid assistance benefits. Dept, of Income Maintenance, Uniform Policy Manual (1993) § 4030.80 (B) (2), addresses the treatment of specific types of trusts and provides: “The funds in an inter vivos trust created on or after October 1, 1992, but prior to August 11, 1993, are considered available to an individual or the individual’s spouse if:
      “a. the individual or the individual’s spouse is the settlor of the trust; and
      “b. the individual or the individual’s spouse is abeneficiary of the trust; and
      “e. the individual applies for cash or Medicaid within 30 months subsequent to the establishment of the trust.”
      While this regulation was not effective at the time the trust was established, it was effective at the time the plaintiff applied for benefits. The Charles Bezzini Revocable Trust was created within the relevant time period. The plaintiffs spouse was the lifetime beneficiary of the trust. The plaintiff applied for medicaid assistance benefits on February 9, 1994, within eleven months of the establishment of the trust. All of the elements of the department’s regulation have been satisfied. As a result, the assets in the revocable trust would be considered available to the plaintiff as part of her medicaid application, thereby serving to disqualify her from receiving benefits. This regulatory provision, therefore, provides further support for the department’s decision to disqualify the plaintiff from receiving benefits.