text:
    NORTHEAST PARKING, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WINDSOR LOCKS BRADLEY AIRPORT VALET PARKING, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WINDSOR LOCKS
    (AC 15684)
    Foti, Landau and Hennessy, Js.
    Argued September 25
    officially released December 16, 1997

      Thomas W. Fahey, Jr., with whom, on the brief, was Richard T. Roznoy, for the appellants (intervening defendants).

      William, J. Sweeney, Jr., with whom, on the brief, was Thomas P. Griffen, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The intervening defendants, Park Plaza, Inc., and Winchester Partnership, appeal from the judgment of the Superior Court sustaining the administrative appeals of the plaintiffs, Northeast Parking, Inc., Bradley Air Parking Ltd. Partnership and Bradley Airport Valet Parking, Inc., with respect to an amendment to a special use permit granted to the intervening defendants by the defendant planning and zoning commission of the town of Windsor Locks (commission). Following oral argument in this court, we asked the parties, sua sponte, to brief and argue the question whether the plaintiffs were aggrieved by the commission’s decision. Because we hold that the plaintiffs were not aggrieved, we dismiss the intervening defendants’ appeal and remand the case to the Superior Court with direction to vacate the judgment and to dismiss the plaintiffs’ appeals.

The following facts are relevant to this appeal. The plaintiffs and the intervening defendants are business competitors who operate valet parking services near Bradley International Airport in the town of Windsor Locks (town). The airport is also in the town. The plaintiffs’ business operations, outdoor valet parking services, predate a 1985 ordinance prohibiting valet parking facilities in the town. The 1985 ordinance was in effect until 1987 when the commission promulgated regulations identifying the uses of land permitted in the town. Valet parking is not a use of land permitted in the town pursuant to the regulations.

In 1990, the commission amended the town zoning regulations by adopting §§ 407 and 408. In January, 1991, pursuant to § 408, the intervening defendants applied for and received a special permit for the adaptive reuse of a portion of a building that they own at 295 Ella Grasso Turnpike. The special permit allowed the intervening defendants to use a portion of their building for 800 indoor valet parking spaces.

In March, 1993, the intervening defendants sought approval from the commission to amend the special permit by increasing the number of valet parking spaces in their building by 348. The commission approved the amendment on June 14,1993, and the plaintiffs appealed to the Superior Court. The Superior Court sustained the plaintiffs’ appeal, deciding that the commission improperly approved the intervening defendants’ application to amend the special permit in light of the fact that valet parking is not a permitted use under the applicable regulations. The intervening defendants appealed.

To appeal an administrative decision, the plaintiff must be aggrieved by the decision. See Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). “In the case of a decision by a zoning commission . . . ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” General Statutes § 8-8 (a) (1). The plaintiffs do not claim statutory aggrievement. Therefore, for the plaintiffs to have standing to bring an appeal, they must meet the test of classic aggrievement, which was recently summarized by our Supreme Court in Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 699 A.2d 142 (1997), and from which we quote at length.

“The test for aggrievement long recognized by this court is set forth in our decision in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987). There we stated that [t]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision .... Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [supra, 193 Conn. 65]. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). . . . [State Medical Society v. Board of Examiners in Podiatry, supra,] 299-300. The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978). . . . United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 342-43, 663 A.2d 1011 (1995).

“The second prong of the aggrievement test requires the plaintiff to demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law. See State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. 300-301. United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 343. [I]n considering whether a plaintiffs interest has been injuriously affected by [an administrative decision], we have looked to whether the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for [its] complaint. . . . Air Courier Conference v. Postal Workers, 498 U.S. 517, 523, 111 S. Ct. 913, 112 L. Ed. 2d 1125 (1991), citing Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 344-45.

“Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, supra, 242 Conn. 158-60.

Ordinarily, an allegation of adverse business competition is not sufficient to meet the classic aggrievement test. See Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn. 285, 288, 189 A.2d 396 (1963). The court will, however, assume jurisdiction over claims of unfair or illegal competition. State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. 302.

The following additional facts are necessary for our determination of whether the plaintiffs are aggrieved. The citations and recognizances filed in the Superior Court in each case allege in part: “The plaintiff, a valet parking lot operator and owner of real estate located in the Town of Windsor Locks, relied upon the above referenced zoning regulations when making investments and business decisions and has been aggrieved, and its property interests, specifically its businesses and real estate, are adversely affected by the decision of the Commission.”

The commission and the intervening defendants also raised the question of aggrievement in the trial court by means of a motion to dismiss the appeal. The Superior Court, L. Sullivan, J., held a hearing on the issue of aggrievement on several days between April 4 and June 25,1994. The Superior Court found the following facts. Both the plaintiffs and the intervening defendants are engaged in the business of valet parking. The plaintiffs conduct their business outdoors. The intervening defendants conduct their business indoors. The planning and zoning ordinances do not define valet parking. A defense witness defined valet parking as a parking activity whereby the customers’ automobiles are checked in at the parking facility and the customers and their luggage are transported to the airport. When the customers return to the airport, they are met and taken to the parking facility to get their automobiles. The Superior Court took judicial notice of the fact that valet parking is an adjunct to almost every major airport in the United States.

The Superior Court also found that § 408 provides that the commission may permit, by special permit, “ ‘any use which it determines is consistent with the criteria set forth above . . . even if said use is not otherwise permitted in Chapter IV of these Regulations. . . .’” (Emphasis in original.) The intervening defendants, pursuant to the “any use” provision of § 408, obtained a special permit to valet park 800 vehicles within a building. In 1993, the intervening defendants, again pursuant to § 408, obtained an amendment to their permit that allowed them to expand their valet parking service by 348 parking spaces. The plaintiffs did not challenge the enactment of § 408 or the granting of the special permit allowing the intervening defendants to valet park 800 vehicles in their building. The plaintiffs did appeal from the granting of the amendment to the intervening defendants’ special permit.

“It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law. Golfin v. Plymouth Industrial [Development] Corporation of Connecticut, Inc., 15 Conn. App. 804, 805, 543 A.2d 287 (1988).” Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 344, 573 A.2d 1222 (1990). “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous .... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We take no issue with the facts found by the Superior Court. We disagree, however, with its conclusion that the plaintiffs are aggrieved as a matter of law.

The Superior Court concluded, as a matter of law, that the zoning regulations of the town do not allow valet parking in any zone, either as a permitted use or as a special permit use. The fact that zoning regulations do not allow valet parking as a permitted use or as a special permit use has the legal and intended effect of restricting the expansion of valet parking in the vicinity of the airport. There is no evidence that the purpose of the ordinance is to “ ‘reduce nonconforming to conforming uses with all the speed justice will tolerate.’ ” Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981).

The plaintiffs’ use of their land long antedates the present ordinance regulating land use in the town. The use is a nonconforming use. The plaintiffs are not legally able to enlarge or expand their existing uses of their property because they cannot demonstrate “exceptional difficulty or unusual hardship” as required by General Statutes § 8-6. The town’s refusal to allow valet parking as a permitted use or a special permit use is not intended to eliminate valet parking in the vicinity of the airport. The refusal to permit valet parking accomplishes a moratorium on the expansion of valet parking. Each of the plaintiffs has land on which to expand its valet parking if such use were not prohibited by the moratorium. The plaintiffs demonstrated that they compete for the same customers and that the mandate against expansion places them, and all other valet parking operators, at a competitive disadvantage in relation to the intervening defendants. The claim raised is the stifling of competition by specific governmental action. The Superior Court concluded that the plaintiffs are aggrieved and have standing to bring the appeal. We disagree.

The question before us is whether the plaintiffs, as leaseholders or owners of land, are aggrieved by the commission’s granting of an amendment to the defendants’ special permit. Therefore, we must examine the town’s zoning regulations as they apply to the parties.

The enactment of zoning ordinances is a legislative function, which the court may not disturb unless the commission acted arbitrarily or illegally. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 543, 600 A.2d 757 (1991). “ ‘Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change.’ ” Id. Nothing in the record indicates that the commission acted arbitrarily or illegally.

“Although the position of the municipal land use agency is entitled to some deference; Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976); the interpretation of provisions in the ordinance is nevertheless a question of law for the court. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116-17, 186 A.2d 377 (1962). The court is not bound by the legal interpretation of the ordinance by the [commission]. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152-53, 543 A.2d 1339 (1988). Rather, the court determines legislative intent from the language used in the regulations. Weigel v. Planning & Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). ‘We interpret an enactment to find the expressed intent of the legislative body from the language it used to manifest that intent. . . . Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms.’ . . . Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). The words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. Schwartz v. Planning & Zoning Commission, [supra, 153].” Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 640-41, 583 A.2d 650 (1990).

Prior to 1985, the plaintiffs and their predecessors in interest operated valet parking businesses in the town. In 1985, the commission imposed a moratorium on valet parking in the town, which it had authority to do for a limited duration to provide time in which to evaluate the needs of the town and to develop a plan for future growth. See Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 160, 479 A.2d 801 (1984). In 1987, the commission adopted chapter IV of the zoning regulations, which sets forth the uses of land permitted in the town. Chapter IV does not include valet parking as a use of land permitted in the town. Therefore, at that time, the plaintiffs’ valet parking businesses became a nonconforming use of their land. See Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 480-83, 408 A.2d 243 (1979).

“[I]t is the ‘indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate.’ Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181, 377 A.2d 280 (1977).” Helbig v. Zoning Commission, supra, 185 Conn. 306. There is no evidence, however, in the present case that the commission is attempting to reduce the nonconforming use of valet parking in the town. While “[t]he accepted policy of zoning ... is to prevent the extension of nonconforming uses”; (internal quotation marks omitted) id., 306; legally existing nonconforming uses are property rights vested in the land. Petruzzi v. Zoning Board of Appeals, supra, 176 Conn. 483. “[T]he rule concerning the continuance of a nonconforming use protects the ‘right’ of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations.” Helbig v. Zoning Commission, supra, 306. The plaintiffs presented no evidence that the commission has taken any action to deny the plaintiffs their right to use their land for valet parking.

In 1990, the commission amended the town’s zoning regulations by adding two sections that permit the adaptive reuse of property. The commission was entitled to do so pursuant to its legislative power. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 527. Section 408 is at issue here. We look to the language of the regulation to determine the intent of the commission. See Coppola v. Zoning Board of Appeals, supra, 23 Conn. App. 640-41.

Section 408 begins, “[I]n the Industrial 1, 2 and 3 zones only, the Commission may permit by Special Permit after a public hearing the rehabilitation or adaptive reuse of vacant, deteriorated or underutilized buildings in accordance with the following regulations . . . .” Giving the words of that section their usual and natural meaning; see Coppola v. Zoning Board of Appeals, supra, 23 Conn. App. 640-41; it is clear that § 408 applies to buildings only, specifically buildings that are vacant, deteriorated or underutilized. We recognize the multiple problems that the blight of vacant and underutilized buildings presents to landowners and towns. Therefore, we conclude that it was within the legislative powers of the commission to amend the town’s zoning regulations to address the changing needs of the town. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 543.

To obtain a special permit pursuant to § 408, applicants must meet the criteria identified in part A. See Housatonic Terminal Corp. v. Planning & Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1975). The fifth criterion requires “ [substantial inability to utilize the property under the provisions of the industrial zoning districts.” That criterion requires applicants to demonstrate that the zoning regulations prevent them from using their buildings.

Part B of § 408 identifies the uses allowed under a special permit: “For purposes of this section, the Commission may permit any use which it determines is consistent with the criteria set forth above, even if said use is not otherwise permitted in Chapter IV of these Regulations, except that residential uses and retail package stores are expressly prohibited.” The plaintiffs take exception to the “any use” provision of part B. The plaintiffs’ position is not logical. To determine the intent of § 408, “we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation.” (Internal quotation marks omitted.) Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 689, 674 A.2d 1300 (1996).

If one of the criteria that applicants for a special permit must meet is a substantial inability to utilize their buildings under the provisions of the industrial zoning districts, then some exception to the zoning regulations must be granted in order to allow the special permit. Chapter IV, which identifies the permitted uses of land, applies to the uses of industrial zoning districts. If the reason applicants cannot use their buildings is because an available use is not permitted, then in order for § 408 to be effective, it must permit any use of the buildings as long as it is not a residential use or a retail package store. Pursuant to its legislative powers, the commission has the authority to determine whether applicants satisfy the criteria and whether the proposed uses are consistent with them.

The intervening defendants took advantage of § 408 to find a use for their vacant building on Ella Grasso Turnpike. They do not provide outdoor valet parking. The plaintiffs own or rent land on which they conduct their valet parking business outdoors. The commission’s granting of a special permit and the amendment to it does not affect the plaintiffs’ ability to use their land. While the plaintiffs do not have a vacant building on their property that meets the criteria of § 408, there is nothing in the zoning regulations that prohibits them from acquiring such a building and using it for valet parking.

The plaintiffs presented no evidence that the commission’s granting an amendment to the intervening defendants’ special permit prohibits the plaintiffs’ continued nonconforming use of their property. Because they are not denied the nonconforming use of their property, the plaintiffs’ interest in the granting of the amendment to the intervening defendants’ special permit is no different from that of any other landowner in the town, except that it provides legal business competition, which, as a matter of law, is insufficient aggrievement. Therefore, the plaintiffs have failed to demonstrate a specific personal and legal interest in the granting of the amendment, which is the first prong of the test of classic aggrievement. For that reason, they have no standing to challenge the commission’s granting the amendment to the intervening defendants’ special permit.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs’ appeal.

In this opinion the other judges concurred.

       This appeal represents two actions that were consolidated in the Superior Court.

       The permitted uses of land in the town are identified in chapter IV of the zoning regulations.

       Section 407 applies to residential zones and § 408 applies to industrial zones.

       The Windsor Locks zoning regulations, § 408, titled “Adaptive Reuse Regulation—Industrial,” provides in pertinent part: “In the Industrial 1, 2 and 3 zones only, the Commission may permit by Special Permit after a public hearing the rehabilitation or adaptive reuse of vacant, deteriorated or underutilized buildings in accordance with the following regulations:
      “A. CRITERIA
      “1. One or more contiguous parcels with vacant, deteriorated or underutilized buildings containing combined gross floor area in excess of 150,000 square feet.
      “2. Average monthly or annual vacancy of 50 percent or more of the existing floor area for a period of twenty four (24) months or more immediately preceding the date of application.
      “3. Substantial benefit to the Town.
      “4. Compatibility with the surrounding area.
      “5. Substantial inability to utilize the property under the provisions of the. industrial zoning districts.
      “B. PERMITTED USES
      “For purposes of this section, the Commission may permit any use which it determines is consistent with the criteria set forth above, even if said use is not otherwise permitted in Chapter IV of these Regulations, except that residential uses and retail package stores are expressly prohibited.” (Emphasis in original.)

       The plaintiffs operate their various businesses on parcels of land in which they have leasehold or fee simple interests.

       See footnote 4.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    RONALD GEDNEY v. BOARD OF EDUCATION OF THE TOWN OF GROTON
    (AC 16398)
    O’Connell, C. J., and Schaller and Daly, Js.
    Argued September 29
    officially released December 16, 1997

      William J. Dolan, for the appellant (plaintiff).

      Thomas N. Sullivan, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the judgment of the trial court affirming the defendant Groton board of education’s (board) termination of his teaching contract. The plaintiff claims that the trial court improperly held that the termination of his teaching contract (1) did not violate § 504 of the Rehabilitation Act of 1973 (act); 29 U.S.C. § 794; and (2) did not violate article twenty-one of the amendments to the Connecticut constitution. We affirm the judgment of the trial court.

The following facts are necessary for the disposition of this appeal. The plaintiff was a tenured fourth grade teacher in the Groton public school system. On or about October 4, 1991, he was arrested and charged with possession of cocaine, a felony, in violation of General Statutes § 21a-279 (a), and possession of drug paraphernalia, a misdemeanor, in violation of General Statutes § 2 la-267. He was granted accelerated rehabilitation and, thus, was never convicted of the crimes with which he had been charged. See General Statutes § 54-56e.

Pursuant to the procedure prescribed in General Statutes § 10-151 (d), the board notified the plaintiff by letter that termination of his contract was under consideration on the statutory grounds of “moral misconduct” and “other due and sufficient cause.” More specifically, the letter stated that, “without limitation, the administration charges that [the plaintiff] on or about October 4, 1991, in the town of Groton possessed and/or exercised dominion and control over a narcotic substance and/ or had knowledge of its presence and narcotic character and/or used or possessed with intent to use drug paraphernalia and/or was involved in conduct proscribed by General Statutes §§ 21a-279 (a) and 21a-267. The above referenced actions seriously compromised [the plaintiffs] effectiveness as a role model and employee of the Groton board of education.”

The plaintiff requested a hearing, which was held over the course of eight days in February and March, 1992. The hearing officer filed extensive findings including, inter alia, a finding that “[the plaintiff] admits that on or about October 4, 1991, in the town of Groton he possessed and/or exercised dominion and control over a narcotic substance and/or had knowledge of its presence and narcotic character.” Despite his findings, the hearing officer recommended that the plaintiff not be terminated and that he be returned to employment at the start of the 1993-94 school year.

On April 7, 1993, the board accepted the hearing officer’s findings, rejected his recommendation and voted to terminate the plaintiffs employment for “moral misconduct” and “other due and sufficient cause.” In June, 1993, the plaintiff appealed to the trial court claiming, inter aha, that, because his prior addiction was a “disability,” his termination was in violation of both federal law and article twenty-one of the amendments to the Connecticut constitution.

The trial court held that the plaintiffs termination did not violate federal law because he was not “otherwise qualified” to be a teacher and, thus, was not terminated solely by reason of his having been a cocaine addict. The trial court further found that since the plaintiff was not terminated because of his disability, he failed to make the required prima facie showing of discrimination to support his constitutional claim. Consequently, the court found no violation of article twenty-one of the amendments to the Connecticut constitution. The trial court dismissed the plaintiffs appeal and his appeal to this court followed.

I

The plaintiff first claims that the trial court improperly concluded that his termination did not violate § 504 of the act. The relevant portion thereof provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” (Emphasis added.) 29 U.S.C. § 794 (a). Because the board receives federal funds, it is subject to the act. The issue before us is whether the plaintiff was (1) an “otherwise qualified individual with a disability” and (2) terminated “solely by reason of his . . . disability.”

To establish a violation of § 504 of the act, a plaintiff must prove (1) that he is an “individual with a disability” under the act, (2) that he is “otherwise qualified” for the position sought, (3) that he is being excluded from the position “solely by reason of his . . . disability,” and (4) that the position exists as part of a program or activity receiving federal financial assistance. See Doe v. New York University, 666 F.2d 761, 774 (2d Cir. 1981).

The plaintiff qualifies as an “individual with a disability” under the act because he was found by the hearing officer to be a recovering drug addict at the time of his termination. “Prior substance abuse” is a recognized disability for purposes of the act. See Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511, 517 (2d Cir. 1991), cert. denied, 506 U.S. 815, 113 S. Ct. 54, 121 L. Ed. 2d 24 (1992). Having a disability is not enough by itself, however, to bring the plaintiff within the ambit of the act. He must also show that his termination was “solely by reason of his . . . disability” and that he was “otherwise qualified” for the position. See Doe v. New York University, supra, 666 F.2d 774. We commence our analysis by ascertaining whether there was any reason for terminating the plaintiffs contract other than his disability.

The plaintiff argues that he was terminated solely by reason of his disability because the board’s decision to terminate him was based on conduct that is attributable to the disability. See Teahan v. Metro-North Commuter Railroad Co., supra, 951 F.2d 514. In holding that an employer fired its employee because of the employee’s alcoholism and not because of his absenteeism, the Teahan court concluded that “an employer ‘relies’ on a [disability] when it justifies termination based on conduct caused by the [disability].” Id., 516.

Relying on Teahan, the plaintiff contends that the defendant cannot base its termination decision on possession of cocaine because such possession is attributable to his being a substance abuser. The plaintiffs reliance on Teahan is misplaced. In Teahan, the plaintiffs misconduct was absenteeism, directly resulting from his disability. Here, the plaintiffs misconduct was felonious activity leading to an arrest that, despite his having a disability, would have disqualified him from employment or justified his termination. Though the plaintiffs possession of the narcotic substance may have been causally related to his drug addiction, his subsequent arrest, the event that triggered his termination, was not causally related to his disability.

In Rado v. Board of Education, 216 Conn. 541, 545, 583 A.2d 102 (1990), a tenured Naugatuck high school physical education teacher was suspended and ultimately terminated following his arrest on three counts of eavesdropping in violation of General Statutes § 53a-189, a class D felony. The school board’s decision relied on “moral misconduct” and “other due and sufficient cause,” two of the reasons for termination of a tenured teacher specified by § 10-151 (d).

On appeal, the trial court held that the school board acted appropriately. The plaintiff appealed to the Connecticut Supreme Court, which stated that “[w]e have not previously defined ‘moral misconduct’ for the purpose of § 10-151 (d), nor do we find it necessary in this case to essay a comprehensive definition of that term. The finding of the panel that the plaintiff had tampered with the school telephone system for the purpose of overhearing conversations of other persons involves conduct proscribed by § 53a-189, which makes such eavesdropping a class D felony. A legislative determination that certain conduct should be punished as a crime is highly significant in deciding whether it constitutes ‘moral misconduct.’ The conclusion of the board that the plaintiffs behavior fell within this classification, therefore, cannot be characterized as arbitrary or illegal.” Id., 553.

The Rado court further held that other due and sufficient cause is the equivalent of good cause. “ ‘Good cause includes any ground which is put forward by the [school] committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system.’ . . . Thus, in deciding whether particular conduct constitutes ‘due and sufficient’ cause for termination, the impact of that conduct upon the operation of the school is a significant consideration. . . . The conclusion of the board that ‘[s]uch behavior must necessarily have undermined [the plaintiffs] capacity to effectively work . . . with fellow staff members, sets an extremely poor example for students and staff and reflects personal values inconsistent with [his] continued employment as a teacher’ is supported by the findings of the panel and satisfies this statutory criterion for termination.” (Citation omitted.) Id., 554.

“A school board ‘has discretion to accept or reject a recommendation from an impartial hearing panel,’ though it is bound by the panel’s findings of fact unless unsupported by the evidence.” Id., 555. “[The court’s] function in reviewing the action of the board pursuant to § 10-151 [d] is to determine whether the board has acted illegally and not to substitute [the court’s] judgment for that of the board.” Id.

In this case, the school board decided to reject the hearing officer’s recommendation to retain the plaintiff as a fourth grade teacher. In its decision, the board relied on the hearing officer’s findings that the plaintiffs misconduct rose to the level of activity deemed by the legislature to be a crime. Like the teacher’s misconduct in Rado, the plaintiffs criminal conduct undermines his ability to work effectively with other faculty members, sets a poor example for students and reflects personal values inconsistent with his continued employment as a fourth grade teacher. Similar to the Naugatuck school board’s decision in Rado, the Groton school board’s determination that such activity constitutes “moral misconduct” for the purposes of § 10-151 (d) “cannot be characterized as arbitrary or illegal [or irrational].” Id., 553. We therefore hold that the plaintiff in this case was properly terminated for “moral misconduct” and “other due and sufficient cause,” and is not entitled to the protection of the Rehabilitation Act.

Because we conclude that the plaintiff was not terminated solely by reason of his disability, it is unnecessary to reach the “otherwise qualified” element of § 504 of the Rehabilitation Act.

II

The plaintiff next claims that the trial court improperly concluded that his termination did not constitute discrimination against a person with a disability in violation of article twenty-one of the amendments to the Connecticut constitution. The relevant portion of article twenty-one provides that “[n]o person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

To implicate article twenty-one of the amendments to the Connecticut constitution, the plaintiff first must establish that he was discriminated against because of his disability, in violation of the constitution’s equal protection clause. In part I of this opinion, we established that the school board terminated the plaintiff for “moral misconduct” and “other due and sufficient cause” unrelated to his disability, and, thus, it is logical that such termination could not have been the culmination of unequal treatment for the purposes of a state constitutional claim. We find no showing of discrimination based on religion, race, color, ancestry, national origin, sex or physical or mental disability, and hold that the plaintiffs constitutional claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 10-151 (d) provides in relevant part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons ... (3) moral misconduct . . . or (6) other due and sufficient cause. . . . Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher’s contract is under consideration and, upon written request filed by such teacher with the superintendent, within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the reasons therefor. Within twenty days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing. . . . Within seventy-five days after receipt of the request for a hearing, the . . . hearing officer . . . shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. . . .” (Emphasis added.)


author: PER CURIAM.

text:
    WILFRED L. HART, SR. v. COMMISSIONER OF CORRECTION
    (AC 16750)
    Foil, Schaller and Healey, Js.
    Argued November 4
    officially released December 16, 1997

      William S. Palmieri, for the appellant (petitioner).

      Paul E. Murray, supervisory assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner was convicted, after a jury trial, of sexual assault in the first degree, tampering with a witness, multiple counts of sexual assault in the second degree and being an accessory to sexual assault in the second degree. He appealed to this court from the judgment of conviction, and we affirmed the judgment. State v. Hart, 26 Conn. App. 200, 599 A.2d 748 (1991). The petitioner thereafter filed a petition for a writ of habeas corpus, which, after a hearing, was dismissed by the habeas court. He then filed a request for certification to appeal to this court, which was also denied by the habeas court. This appeal followed.

On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification and that he is entitled to habeas relief because his constitutional right to effective assistance of counsel was violated at trial. His petition alleged that his trial counsel was ineffective in that counsel failed to present medical evidence at trial of the petitioner’s alleged impotency, failed to bring to the trial court’s attention an alleged improper communication by a sheriff to one or more jurors and failed to request a mistrial.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).” (Emphasis in original; internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 815-16, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996). A habeas appeal that satisfies one of the aforementioned criteria is not frivolous and warrants appellate review. Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995).

The habeas court concluded that viewing the evidence in the light most favorable to the petitioner’s claims, his alleged impotence would have been episodic and inconsistent, and that medical testimony could not have been presented to establish with reasonable medical certainty that the petitioner was impotent at any specific time. The court found that trial counsel’s determination that impotence was not a viable defense was reasonable and that his decision not to present such a defense was atrial strategy. The habeas court also found that there was no evidence presented before it or before the trial court, at an “extraordinary hearing,” to support the petitioner’s claim that a sheriff made inappropriate comments.

“ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony. . . .” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 120 (1996).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal. The petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 179; Milardo v. Commissioner of Correction, 41 Conn. App. 749, 677 A.2d 24, cert. denied, 239 Conn. 907, 682 A.2d 1004 (1996); Walker v. Commissioner of Correction, 38 Conn. App. 99, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

The appeal is dismissed.


author: SCHALLER, J.

text:
    IN RE DANIEL H.

    (AC 14912)
    O’Connell, C. J., and Foti and Schaller, Js.

      Argued September 23
    officially released December 23, 1997

      Robert P. Pickering, with whom, on the brief, was F. Mac Buckley, for the appellant (respondent).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom were Francis J. Carino, chief juvenile prosecutor, and, on the brief, Kevin Kane, state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

SCHALLER, J.

The juvenile respondent appeals from the order of the Superior Court for Juvenile Matters transferring his case to the regular criminal docket of the Superior Court on the basis of a finding of probable cause that he committed murder in violation of General Statutes § 53a-54a The respondent claims that the court improperly ordered the transfer because (1) the evidence was insufficient to support a finding of probable cause and (2) the respondent was improperly prevented from producing evidence to rebut the court’s finding of probable cause at the transfer hearing. We affirm the order of transfer.

This case arises out of an incident on June 26, 1994, when Michael Tomassi, a passenger in a car that was traveling past the respondent’s house, was fatally shot. The respondent was fifteen years old when the shooting occurred and, therefore, a “child” whose offenses would ordinarily be treated as juvenile matters. General Statutes §§ 46b-120 and 46b-121.

After his arrest, the respondent was presented to the Superior Court for Juvenile Matters pursuant to an amended petition to adjudicate him a delinquent child, which charged him with committing two counts of assault in the first degree in violation of General Statutes § 53a-59, unlawful discharge of a firearm in violation of General Statutes § 53-203, reckless endangerment in the first degree in violation of General Statutes § 53a-63, and murder in violation of General Statutes § 53a-54a. The state’s advocate moved to transfer the respondent from the juvenile docket to the regular criminal docket in accordance with General Statutes (Rev. to 1995) § 46b-127. Following a hearing, the court granted the state’s motion, finding that there was probable cause to believe that the respondent had committed the murder of Tomassi.

The trial court’s finding of probable cause was based on the following evidence presented at the transfer hearing. At approximately 11 p.m. on June 26,1994, two teenage males drove to the parking lot of a convenience store in Colchester, where they met six male friends who arrived in a second car. The two groups of teenagers learned that several of them had seen a red Subaru driving slowly past their homes that evening, and they agreed to look for the vehicle. Four of them got into one car while four others rode in a second vehicle.

Shortly after leaving the store, the occupants in both vehicles saw the Subaru parked at a gas station. The driver of the Subaru had been using the public telephone while his passengers, including the respondent and his brother, waited in the car. The respondent’s brother noticed several of the passengers of the other vehicles get out of their cars and approach the Subaru. He stated that they appeared to be angry. He alerted the driver, who quickly got back into the Subaru and drove away. The passengers in the Subaru motioned to the other vehicles to follow them.

All three cars participated in a high speed chase on the back roads of Colchester for approximately five to ten minutes. During the chase, the passengers of the Subaru threw bottles at the other vehicles. The Subaru finally was driven into the driveway of the respondent’s family residence. The other teens drove past the house before turning around.

After the four occupants of the Subaru entered the respondent’s house, all but the respondent went to the kitchen and waited with the respondent’s mother. The respondent retrieved a twelve gauge shotgun from the house, which he had loaded the previous evening, and walked back out to the road to wait for the vehicles to return. About twenty seconds later, the respondent’s brother followed the respondent out to the road to serve as a lookout. As the vehicles slowly approached the residence, the front seat passenger in one of the vehicles clearly saw the respondent standing by the side of the road holding a shotgun. The respondent’s brother heard the occupants of the second vehicle shout, “shoot him,” “here it comes,” and “are you ready?” and then he heard a shot.

Although the respondent’s brother had seen the respondent pointing the gun at the second vehicle, he did not actually see him fire the shot. He thought that the shot “came from the twelve gauge [the respondent] was holding” because he saw the respondent holding the shotgun immediately before and after the shot was fired. He also recognized the sound of the twelve gauge pump action shotgun being fired. Five seconds later, he saw the respondent fire a second shot into the air. As both cars drove away, the second vehicle passed the first, and the front seat passenger of the trailing vehicle noticed that the rear window of the other vehicle had been blown out and there was blood on the back of the headrest and around the window.

Immediately after the shooting, the respondent exclaimed “they had a gun,” and proceeded to pick up the shell casings and throw them farther up onto the lawn. His brother, however, had not seen any weapons displayed by the passengers in either car. The respondent’s mother then came out of the house and followed the vehicles in the Subaru to record their license plate numbers. The respondent’s stepfather, who had also been inside the house, drove two of the teens to their homes. The respondent and his brother went back inside the house and waited for their parents to return.

After speeding away from the respondent’s house, the vehicles were driven to the state police barracks in Colchester. Seven of the eight teenagers ran into the station and described the incident to Trooper Timothy Nolan. One boy was wounded and bleeding from a gunshot wound to the head. Tomassi, who was suffering from severe gunshot wounds to his neck and head, remained in one of the vehicles. Nolan provided first aid to Tomassi until medical personnel arrived at the station. Tomassi subsequently died as a result of his injuries.

When the medics arrived, Nolan and Detective Richard Wardell drove to the respondent’s house to investigate the crime scene. They questioned the respondent and his brother, and the boys’ mother and stepfather regarding the shooting. Nolan secured the shotgun and the shell casings, and found shotgun wadding and broken glass in front of the respondent’s house. Nolan then took the respondent into custody.

I

The respondent first claims that the trial court transferred his case to the regular criminal docket on the basis of insufficient evidence. Specifically, the respondent avers that the evidence was insufficient to support the court’s finding of probable cause that the respondent intended to kill Tomassi. We disagree.

Our standard of review is well settled. “On appeal, this court’s function is to determine whether the transfer court’s decision that probable cause existed as to each of the crimes with which the respondent was charged was clearly erroneous. . . . Probable cause exists when the state’s evidence would warrant aperson of reasonable caution to believe the respondent had committed the crime with which he was charged. . . . The quantum of evidence required to establish probable cause is less than that required to establish proof beyond a reasonable doubt at trial. It is more than mere suspicion but substantially less than that required for conviction. ... In reviewing the evidence and the permissible inferences drawn from it to determine whether the transfer court’s decision was clearly erroneous, we do so in the light most favorable to sustaining that court’s determination of probable cause.” (Citations omitted; internal quotation marks omitted.) In re Michael B., 36 Conn. App. 364, 370-71, 650 A.2d 1251 (1994).

For the trial court to transfer the respondent’s case to the regular criminal docket on the basis of a finding of probable cause that the respondent murdered Tomassi, it had to find that there was probable cause to believe that the respondent killed Tomassi with the intent to do so. As to the element of intent, “[i]t is axiomatic that a [fact finder] may infer an intent to kill from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) In re Keijam T., 221 Conn. 109, 119, 602 A.2d 967 (1992). In the present case, the respondent’s intent to kill Tomassi was evident from his actions on June 26, 1994: the respondent left the safety of his home carrying a loaded shotgun; he aimed the gun directly at the back window of the victim’s car at the level of the passengers’ heads; he was a proficient marksman and understood the deadliness of his weapon; and he tampered with evidence by throwing the shotgun shell casings onto his lawn. We conclude that the trial court’s finding of probable cause as to the count of murder was not clearly erroneous.

II

The respondent next claims that the trial court improperly denied him the opportunity to present evidence to rebut the court’s finding of probable cause on the charge of murder. At the hearing, the respondent sought to introduce evidence demonstrating his affirmative defense of extreme emotional disturbance pursuant to General Statutes § 53a-54a (a) and self-defense pursuant to § 53a-19 (a). Specifically, the respondent offered to show that he and his family were repeatedly harassed at home and in public by local teenagers and that the family had become so fearful of being attacked that the respondent’s mother had allowed him to keep a loaded shotgun in the house for protection.

In analyzing the respondent’s claim that the trial court improperly excluded his proffered evidence, we are guided by a well settled standard of review. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion.” (Internal quotation marks omitted.) Curry v. Burns, 33 Conn. App. 65, 68, 633 A.2d 315 (1993).

“Under § 54-46a (b) [and § 46b-127], if the court finds probable cause based on the state’s evidence, ‘the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered.’ The accused only gains the right to present that evidence if ‘the court determines that such evidence would be sufficient to rebut the finding of probable cause.’ General Statutes § 54-46a (b). The purpose of this procedure is to protect the proceeding from evidence that, even if believed, would not undermine the court’s antecedent finding of probable cause while, at the same time, safeguarding the accused’s interest in attempting to persuade the court that, despite the state’s evidence, based upon all the available evidence probable cause is lacking.” In re Keijam T., supra, 221 Conn. 126.

The respondent claims that his proffered evidence would have rebutted the court’s finding of probable cause by demonstrating that he did not commit the elements of the crime of murder. The respondent made an offer of proof that he and his family had been routinely harassed and threatened. This offer was made to show that the respondent was suffering from an extreme emotional disturbance and was also acting in self-defense when he retrieved his loaded shotgun and carried it to the road. The proffered evidence, however, does not rebut the elements of murder but, rather, seeks to justify the respondent’s actions on the night in question: “An affirmative defense is one that admits the doing of the act charged, but seeks to justify excuse or mitigate it.” (Emphasis added; internal quotation marks omitted.) State v. Heinz, 1 Conn. App. 540, 547, 473 A.2d 1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). While evidence that the respondent was acting under extreme emotional disturbance or in self-defense may be relevant at trial, it is not relevant for the purpose of rebutting the trial court’s finding of probable cause as to the charge of murder.

Further, we note that most of the evidence that the respondent sought to introduce at the transfer hearing was already before the court. We conclude that the trial court appropriately exercised its discretion in not admitting the proffered evidence.

The order of transfer is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a.) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . , .

       General Statutes (Rev. to 1995) § 46b-127 provides in relevant part: “(a) The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years ....
      “(b) No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. . . .”

       General Statutes § 53a-54a (a) provides in relevant part that “in any prosecution [for murder], it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse . . .

       General Statutes § 53a-19 (a) provides in relevant part that “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 . . . .”

       At the transfer hearing, the respondent cross-examined the state’s witnesses, thereby placing before the court testimonial evidence that the respondent and his family had been routinely harassed by local teenagers and that the respondent had stated that one of the passengers in the cars had a gun.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. JUAN CARTAGENA
    (AC 15894)
    Foti, Lavery and Healey, Js.
    Argued October 1
    officially released December 23, 1997

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Juan Cartagena, appeals from the judgment, rendered after a jury trial, convicting him of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). On appeal, the defendant claims that the trial court (1) improperly instructed the jury on self-defense, (2) improperly instructed the jury on manslaughter in the first degree as a lesser included offense of murder, and (3) failed to instruct the jury that self-defense was a defense to the lesser included offenses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 27,1994, the defendant, the defendant’s mother, and the victim, Robert Feliciano, were engaged in an argument over a bottle of beer that the defendant’s mother claimed the victim had stolen from the store belonging to her and the defendant’s stepfather. The defendant carried a cane that held an eighteen inch knife. A struggle between the defendant and the victim ensued. The defendant initiated physical contact with the victim by striking him with the cane in an attempt to take the beer from him. The defendant delivered blows to the victim’s upper body and one blow to the right side of the victim’s head. As the defendant struck the victim, he threatened to kill the victim if he came to the store again. The defendant then slashed the victim on the left side with his knife, cutting him and causing him to fall. The defendant then fled from the area.

The victim was found lying on his back in the street by a Bridgeport police officer. The victim was bleeding from his face and his left side. An autopsy of the victim was performed by Thomas Gilchrist, the associate state medical examiner. Gilchrist testified that he observed a stab wound to the left chest, a cut of the right ear, and abrasions or scraping injuries of the face and of the right elbow. In his opinion, the victim died of a stab wound to the chest.

I

The defendant first claims that the trial court improperly instructed the jury on self-defense when it stated that “the use of self-defense does not imply the right of attack in the first instance or in mere retaliation. By definition, self-defense means the use of defensive force.” The defendant argues that in this case, where he admitted that he attacked the victim first, the instruction given to the jury deprived him of his constitutional rights to present a defense and to due process of law. We disagree.

The defendant testified at trial that he pushed and struck the victim with a cane and then turned around to walk away from the victim. The defendant claimed that after he turned around he was struck in the head by the victim with a pair of vise grips. The defendant further claimed that it was that blow from the victim that caused him to slash the victim with his knife.

The defendant did not properly preserve this claim for appellate review, but seeks review under State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989). The defendant can prevail on his unpreserved constitutional claim only if the following four conditions are met: “(1) the 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.” Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990).

“[The defendant’s] fundamental right to present a defense includes a proper instruction on the elements of self-defense.” State v. Williams, 25 Conn. App. 456, 463, 595 A.2d 895 (1991). Because the defendant’s claim is of constitutional magnitude and there is a record sufficient for review, we will review it. The claim fails, however, under the third prong of Golding.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result.” (Citations omitted, internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993).

The defendant argues that the trial court’s instruction to the jury on self-defense, “by virtue of the undisputed facts, conclusively designated [him] as being the initial attacker or aggressor.” The defendant claims that the instruction made it impossible for him to prevail on his claim of self-defense and, therefore, that he is entitled to a new trial under State v. Jimenez, 228 Conn. 335, 342-43, 636 A.2d 782 (1994). We do not agree.

In Jimenez, the challenged jury instruction concerned the trial court’s definition of “aggressor.” Specifically, the following language was at issue in Jimenez: “Thus, if you find proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense.” Id., 338. The language at issue in Jimenez does not appear in the instructions at issue in this case.

In the course of its charge, the trial court instructed the jury: “The use of self-defense does not imply the right of attack in the first instance or in mere retaliation. By definition, self-defense means the use of defensive force. Therefore, a person claiming this right must act honestly and conscientiously and not from anger, malice or revenge. He must not provoke or intentionally bring the attack upon himself in order to provide an excuse to use force against another person. If the defendant is the initial aggressor, his use of physical force upon another person is justifiable under such circumstances if he withdraws from the encounter and effectively communicates to the other person his intent to withdraw, but the other person, notwithstanding, continues the struggle or threatens the use of physical force. In other words, the initial aggressor must withdraw or abandon the conflict in such a way that the fact of withdrawal is perceived by his opponent so that his adversary is aware that he no longer is in any danger from the original aggressor.” That instruction does not include the language challenged in Jimenez and is legally correct.

In State v. Tate, 34 Conn. App. 610, 614—16, 642 A.2d 1223, cert. denied, 231 Conn. 907, 648 A.2d 159 (1994), this court upheld the use of language similar to the language challenged here. This court concluded, “It is clear that the jury was adequately informed of the applicable law dealing both with the defendant’s belief that he faced imminent danger, and with the legal theory of initial aggressor.” Id., 615-16.

Our review of the charge as a whole leads to the conclusion that there is no reasonable possibility that the jury was misled. We conclude that these instructions were correct in law, that no injustice resulted and that the defendant was not denied a fair trial.

II

The defendant next claims that the trial court improperly charged the jury on intentional manslaughter as a lesser included offense of murder. The state requested that the trial court instruct the jury on the lesser included offenses of intentional manslaughter in the first degree under General Statutes § 53a-55 (a) (1), reckless manslaughter in the first degree under General Statutes § 53a-55 (a) (3), and reckless manslaughter in the second degree under General Statutes § 53a-56.

The defendant argues that the state failed to satisfy the requirements of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A [party] is entitled to an instruction on a lesser 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.

“[I]t is clear that any lesser degree of homicide may be considered by the trier, subject to the requirements of State v. Whistnant [supra, 179 Conn. 585].” State v. Masselli, 182 Conn. 66, 72, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981). It has been “often reaffirmed that manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder. State v. Herring, [210 Conn. 78, 105 n.25, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989)]; State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980); see General Statutes § 53a-45 (c).” State v. Edwards, 214 Conn. 57, 63, 570 A.2d 193 (1990).

Because the defendant admitted killing the victim, the only substantive issue before the jury was his mental state at the time of the stabbing. The defendant relied on the defense of self-defense to justify his actions. “Lack of the requisite intent for murder, however, does not necessarily relieve the defendant of criminal culpability. Rather, specific intent provides the critical distinction between murder and the requested ‘lesser included homicides that require a less serious degree of culpable intent.’ State v. Rodriguez, supra, [180 Conn. 405]; see also State v. Burge, 195 Conn. 232, 244-45, 487 A.2d 532 (1985); State v. Falby, 187 Conn. 6, 29, 444 A.2d213 (1982).” State v. Edwards, supra, 214 Conn. 63-64. The jury was not precluded from rejecting the defendant’s self-defense claim but finding him not guilty of murder and “determining that he might have had a less culpable, but still criminal, intent.” State v. Edwards, supra, 64. The jury may have concluded that under the circumstances revealed by the evidence, the defendant’s belief that the victim was about to use deadly force upon him necessitating his stabbing of the victim was not reasonable.

We conclude that the trial court properly instructed the jury on the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (1).

Ill

Finally, the defendant claims that the trial court failed to instruct the jury on self-defense as it applied to the lesser included offenses. We disagree.

The trial court first instructed the jury on the charge of murder, then on the lesser included offenses and finally on self-defense. The trial court did not limit the applicability of self-defense to any one charge. The trial court concluded its instructions on self-defense by charging the jury: “In summary, you have heard all of the evidence in this case with reference to the defendant’s claim of self-defense. The state must disprove this defense beyond a reasonable doubt. If the state has not, you must find the defendant not guilty.”

In State v. Williams, supra, 25 Conn. App. 467, this court concluded that “[t]he failure to discuss self-defense specifically in connection with each lesser included offense . . . was harmless.” In Williams, the trial court specifically instructed the jury that self-defense was applicable to the charge of murder. That is not the case here.

In this case, the trial court properly instructed the jury on the defendant’s claim of self-defense after it had charged the jury on murder and all the lesser included offenses. The trial court did not state that the self-defense charge did or did not apply to any specific charge. The jury was instructed to follow the self-defense charge “in reviewing the evidence in this case.”

We conclude that the decisions in State v. Hall, 213 Conn. 579, 569 A.2d 534 (1990), and State v. Williams, supra, 25 Conn. App. 467, are controlling. “ ‘[T]he jury’s verdict of guilty on the offense of manslaughter in the first degree was necessarily a rejection of the defense of sell-defense. . . . [T]he defendant would not have benefited by an instruction that the defense was applicable to the lesser included offenses.’ ” State v. Williams, supra, 468; see State v. Hall, supra, 589. Accordingly, we hold that it is not reasonably possible that the jurors were misled by the trial court’s failure to instruct them specifically that they might consider self-defense with respect to each of the lesser included offenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”


author: HENNESSY, J.

text:
    PATRICK MENILLO v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 16521)
    O’Connell, C. J., and Foti and Iiennessy, Js.

      Argued October 1
    officially released December 23, 1997

      Michael A. Stratton, for the appellant (plaintiff).

      Marcy Tench Stovall, with whom was Charles H. Benson, assistant attorney general, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Patrick Menillo, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commission on human rights and opportunities (commission). The commission found that the plaintiff had unlawfully discriminated against the complainants, the defendants Antoinette Hutchinson and Tyrone Cohen, when he refused to consider them as tenants because of their race in violation of General Statutes § 46a-64c (a) (1) and (2). The plaintiff claims that the trial court improperly found that (1) the commission did not violate General Statutes § 4-181, which prohibits ex parte communications, and (2) the hearing officer’s decision was not arbitrary and capricious in light of his factual findings. We affirm the judgment of the trial court.

The following facts found by the commission’s hearing officer are necessary to the resolution of this appeal. A black couple, complainants in the underlying commission action, enlisted the help of a real estate agent, Ivan Yankovlev, to secure an apartment in Bridgeport. Yankovlev brought the couple to a building owned by the plaintiff to view an available apartment on the third floor. Yankovlev was unable to gain entry into the apartment and went to the rear of the building to look for the plaintiff. When Yankovlev did not return, one of the complainants went to look for him and heard the plaintiff talking to Yankovlev. The plaintiff yelled that the real estate agents were bringing too many minorities to his property and demanded that the agent and his clients leave his property immediately.

The hearing officer found, on the basis of those findings, that the plaintiff had illegally discriminated against the complainants on the basis of race in the rental of housing. The plaintiff was ordered to cease and desist from further discriminatory practices, to submit to certain compliance procedures, and to pay compensatory damages and attorney’s fees to the complainants. The plaintiff appealed to the Superior Court from the decision of the commission, naming the commission and the complainants as defendants. The Superior Court affirmed the commission’s decision. The present appeal followed.

I

The plaintiff first claims that the commission violated General Statutes § 4-181, which prohibits ex parte com-

munications between a hearing officer and members of the commission regarding a case prior to the issuance of a final decision. The plaintiff alleges that the introduction of the commission’s investigative report as a record exhibit is a per se violation of the statutory prohibition against ex parte communications. We disagree.

The following additional facts are necessary to the resolution of this claim. After the initial complaint was filed pursuant to General Statutes § § 46a-83 (c) and 46a-84 (b), the commission assigned an investigator to the case to determine whether there was “reasonable cause” to believe that “a discriminatory practice has been or is being committed as alleged in the complaint.” In accordance with the requirements of General Statutes § 46a-83 (d), the investigator gave each party the opportunity to provide written or oral comments on the evidence he had gathered and his proposed report prior to his final determination on the issue of reasonable cause. The commission, after reviewing the report of the investigator and comments by the parties, determined that reasonable cause was present and assigned the case to a hearing officer for a formal hearing.

At the formal hearing, the hearing officer admitted the investigator’s report into evidence for the limited purpose of establishing that the prerequisite finding of reasonable cause had been properly made. The plaintiff did not object to the admission of that report, nor did he request that the hearing officer disqualify himself.

The commission first contends that the inclusion of this report in the file is not an ex parte communication within the meaning of the statute. The commission also notes that the executive director is required to determine whether reasonable cause exists to believe a discriminatory act has been committed as a condition precedent to a hearing. Therefore, to comply with the statute’s procedural requirements, the file of the hearing officer must contain a copy of the predicate investigation.

The portion of § 4-181 that prohibits a hearing officer from receiving ex parte communications from other members of the agency is an essential part of the statutory scheme. This prohibition “is intended to preclude litigious facts reaching the deciding minds without getting into the record. Also precluded is ex parte discussion of the law with the party or his representative. . . . The purposes of § 4-181 are to prevent one party from exerting improper influence on the decisionmaker . . . and to ensure that the reasons underlying his or her decision are on the record.” (Citations omitted; internal quotation marks omitted.) Martone v. Lensink, 207 Conn. 296, 303, 541 A.2d 488 (1988). Those concerns are not present in this case.

We agree with the trial court’s reasoning that the essence of an ex parte communication is that the other party has no notice or opportunity to participate in the presentation of allegations to the fact finder. In this case, the plaintiff had notice of the investigator’s report and exercised his right to participate by commenting on the investigator’s findings prior to its submission to the executive director of the commission.

The trial court reviewed the record and found that the hearing officer had admitted the investigator’s report as a “record exhibit, not as evidence” for the exclusive purpose of establishing that the prerequisite determination of reasonable cause had been found. The trial court also found that the plaintiff had waived his right to raise the issue of prejudice resulting from an ex parte communication because the plaintiff did not request that the hearing officer disqualify himself on the ground that he had been improperly influenced.

Under these facts, the investigator’s report cannot be construed as an ex parte communication. Therefore, we conclude that there was no violation of § 4-181.

II

The plaintiff next claims that the decision of the hearing officer was arbitrary and capricious because of its reliance on improper inferences. The plaintiff argues that inferences made in the discussion section of the hearing officer’s decision are flawed, which mandates that this court vacate the hearing officer’s decision. We disagree.

“First, we note that our review of an administrative appeal is limited. Our Supreme Court has established a firm standard that is appropriately deferential to agency decision making, yet goes beyond a mere judicial rubber stamping of an agency’s decisions. Connecticut Light & Power [Co.] v. Dept. of Public [Utility Control], 219 Conn. 51, 57, 591 A.2d 1231 (1991); Woodbury Water Co. v. Public Utilities Commission, 174 Conn. 258, 260, 386 A.2d 232 (1978). Courts will not substitute their judgment for that of the agency where substantial evidence exists on the record to support the agency’s decision, and where the record reflects that the agency followed appropriate procedures. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990); Baerst v. State Board of Education, 34 Conn. App. 567, 571, 642 A.2d 76, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994).” (Internal quotation marks omitted.) Cabasquini v. Commissioner of Social Services, 38 Conn. App. 522, 525-26, 662 A.2d 145, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995).

The trial court’s review is governed by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which limits the scope of judicial review of administrative agency decisions. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 219 Conn. 57-58; Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). General Statutes § 4-183 (j) provides that “[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .’’In the present case, the trial court did not find any of the six exceptions present and, therefore, was bound by the statute to affirm the commission’s decision.

The plaintiff argues that because the hearing officer chose to rely on certain facts and to reject others, his factual conclusions were arbitrary and capricious. For this reason, the trial court should have reversed the commission’s decision. “If the administrative record provides substantial evidence on which the hearing officer could reasonably have based his findings, the decision must be upheld. . . . The trial court may not disturb the administrative process if the record contains substantial evidence that supports the hearing officer’s findings and as long as the board followed the requirements of the statute.” (Citation omitted.) Joyell v. Commissioner of Education, 45 Conn. App. 476, 490, 696 A.2d 1039 (1997).

We conclude that the findings of the hearing officer were well grounded in the evidence presented to him and were logically consistent. Therefore, we find that the trial court properly upheld the commission’s decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-64c provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section:
      “(1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status.
      “(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status. . . .”

       The language used by the plaintiff was obscene and racially charged.

       General Statutes § 4-181 provides in relevant part: “(a) Unless required for the disposition of ex parte matters authorized by law, no hearing officer or member of an agency who, in a contested case, is to render a final decision or to make a proposed final decision shall communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or, in connection with any issue of law, with any party or the party’s representative, without notice and opportunity for all parties to participate. . . .
      “(c) Unless required for the disposition of ex parte matters authorized by law, no party or intervenor in a contested case, no other agency, and no person who has a direct or indirect interest in the outcome of the case, shall communicate, directly or indirectly, in connection with any issue in that case, with a hearing officer or any member of the agency, or with any employee or agent of the agency assigned to assist the hearing officer or members of the agency in such case, without notice and opportunity for all parties to participate in the communication.”

       General Statutes § 46a-83 (c) provides in relevant part: “The executive director of the commission or his designee shall determine the most appropriate method for processing any complaint pending after review in accordance with subsection (b) of this section. The commission may conduct mandatory mediation sessions, expedited or extended fact-finding conferences or complete investigations or any combination thereof during the investigatory process for the purpose of finding facts, promoting the voluntary resolution of complaints or determining if there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint. As used in this section and section 46a-84, reasonable cause means a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence and judgment could believe the facts alleged in the complaint. . . .”
      General Statutes § 46a-84 (b) provides in relevant part: “Upon certification of the complaint, the executive director of the commission or his designee shall appoint a hearing officer ... to hear the complaint . . . .”

       General Statutes § 46a-83 (d) provides in relevant part:“Before issuing a finding of reasonable cause or no reasonable cause, the investigator shall afford each party and his representative an opportunity to provide written or oral comments on all evidence in the commission’s file, except as otherwise provided by federal law or any other provision of the general statutes. The investigator shall consider such comments in making his determination. The investigator shall make a finding of reasonable cause or no reasonable cause in writing and shall list the factual findings on which it is based . . . .”