author: LAVERY, J.

text:
    DOMESTIC VIOLENCE SERVICES OF GREATER NEW HAVEN, INC. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 14892)
    Lavery, Landau and Daly, Js.
    Argued September 23, 1997
    officially released January 20, 1998

      Victor R. Perpetua, with whom, on the brief, were Mitchell W. Pearlman, general counsel, and Barbara Housen and Joan Andrews, commission counsel, for the appellant (named defendant).

      Patricia E. Reilly, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The dispositive issue in this appeal is whether the plaintiff, Domestic Violence Services of Greater New Haven, Inc., is a public agency within the meaning of General Statutes § l-18a (a). Because we hold that the trial court used the proper standard of review and that the plaintiff is not a public agency, we affirm the judgment.

The following facts are relevant to this appeal. In December, 1993, the complainant, Ellen Andrews, requested in writing that the plaintiff provide her with certain corporate documents, including its annual report, budget and bylaws pursuant to the Freedom of Information Act (act), General Statutes § 1-7 et seq. The plaintiffs executive director initially refused to produce the documents requested. Thereafter, the complainant filed a complaint with the Freedom of Information Commission asking it to order the plaintiff to disclose the records requested. The commission scheduled a hearing on the complaint for March 3, 1994. On February 28, 1994, the plaintiff voluntarily gave the complainant the requested documents with an explanation that the disclosure was not an admission that the plaintiff is a public agency, as defined by the act, but an effort to avoid litigation.

Despite the voluntary disclosure, the commission went forward with the contested hearing on March 31, 1994. Following the hearing, the commission found that the plaintiff was a public agency pursuant to § 1-18a (a) and, although the documents had been disclosed to the complainant prior to the hearing, the documents had not been disclosed promptly. The commission then ordered the plaintiff to comply strictly with the provisions of the act in the future. The plaintiff appealed to the trial court pursuant to General Statutes §§ 1-2 li (d) and 4-183 claiming that the commission’s finding that the plaintiff was a public agency was incorrect as a matter of law and clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

Following a thorough analysis of the facts and law, the trial court concluded that the plaintiff was not a public agency within the meaning of the statute. The trial court sustained the plaintiffs appeal, finding that the commission’s decision was in excess of the statutory authority of the agency and was clearly erroneous in view of the reliable probative and substantial evidence on the record as a whole. See General Statutes § 4-183 (j). The commission appealed to this court from the trial court’s judgment pursuant to § l-21i (d).

On appeal to this court, the commission claims that the trial court (1) failed to follow the applicable scope of judicial review when it sustained the plaintiffs administrative appeal and (2) concluded improperly that the plaintiff is not the functional equivalent of a public agency for the purposes of the act. We disagree.

I

The commission first claims that the trial court did not follow the applicable scope of judicial review in sustaining the plaintiffs appeal. The commission argues that the trial court improperly substituted its judgment for that of the commission with respect to certain evidence. We do not agree.

“We review the issues raised by the [commission] in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act].” Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996). The scope of permissible review is governed by § 4-183 (j) and is very restricted. See Cos Cob Volun teer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 104, 561 A.2d 429 (1989); New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). “ ‘Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant.’ C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4483(g).” New Haven v. Freedom of Information Commission, supra, 773. “ ‘The conclusion reached by the defendant must be upheld if it is legally supported by the evidence. . . . The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence printed in the appendices to the briefs which reasonably supports the decision of the commissioner, we cannot disturb the conclusion reached by him. Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 49, 327 A.2d 588 [(1973)].’ See Paul Bailey’s, Inc. v. Kozlowski, 167 Conn. 493, 496-97, 356 A.2d 114 [(1975)].” Lawrence v. Kozlowski, 171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” Dolgner v. Alander, supra, 280-81.

“The interpretation of statutes presents a question of law. . . . Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... it is for the courts, and not for administrative agencies, to expound and apply governing principles of law.” (Citations omitted; internal quotation marks omitted.) Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 761-62, 591 A.2d 395 (1991). Because the commission’s determination of whether the plaintiff is a public agency required an interpretation of § l-18a (a), that determination was a matter of law. See id.

The trial court determined that the commission’s decision with respect to the agency status of the plaintiff “was in excess of the statutory authority of the agency and was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” See General Statutes § 4-183 (j). On the basis of our review of the record and the trial court’s memorandum of decision, we hold that the trial court did not violate the judicial standard of review. The facts on which the trial court relied in reaching its decision are consistent with the facts found by the commission. The trial court applied the standards of “the functional equivalent of a public agency” test set forth in Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 549, 436 A.2d 266 (1980), to the facts found by the commission.

II

The second issue raised by the commission on appeal is that the trial court improperly concluded that the plaintiff is not the functional equivalent of a public agency for puiposes of the act. We disagree.

The following facts are necessary for our analysis. The plaintiff was not created by government; rather, it was established in 1977 as a not-for-profit coiporation by a group of private citizens concerned about domestic violence. It provides services and temporary shelter to the victims of domestic violence and their families. The plaintiff receives approximately 66 percent of its funding from federal, state and local governments.

General Statutes § 46b-38c (a) requires the judicial branch to maintain family violence response and intervention units (units) to respond to cases involving family violence. These units are coordinated and governed by a formal agreement (agreement) between the chief state’s attorney and the judicial branch. Section 46b-38c (b) requires the family relations division of the trial court to establish, in accordance with the agreement, a local victims’ advocacy unit within each geographical area of the trial court.

At the time in question, the family relations division had entered into a contract with the Connecticut Coalition Against Domestic Violence, Inc. (coalition), an organization that oversees a statewide network of domestic violence prevention projects. Under the terms of the contract, the coalition subcontracts with local domestic violence service providers to provide direct service to victims of family violence referred to them by the family relations division. The plaintiff is one of the local domestic violence service subcontractors. In this capacity, the plaintiff provides advocacy services to victims of domestic violence referred to it by the court. In addition to the services provided pursuant to the subcontract, the plaintiff provides other services to victims of domestic violence such as shelter, support groups and crisis counseling.

The act requires the disclosure of “all records maintained or kept on file by any public agency.” General Statutes § 1-19. The term “public agency” is defined in § l-18a (a): “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.” We look to the federal Freedom of Information Act; 5 U.S.C. § 552; for guidance when interpreting our state statute. See Wilson v. Freedom of Information Commission, 181 Conn. 324, 333, 435 A.2d 353 (1980).

Our Supreme Court was first asked to construe the term “public agency” in Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 544. In Board of Trustees, the court adopted the “functional equivalent” test of the federal courts to determine whether an entity is a public agency. Id., 553. Federal courts have consistently rejected formalistic arguments such as that of the commission in this appeal. See id. “ ‘[A]ny general definition [of any agency] can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of the government done. . . . The unavoidable fact is that each new arrangement must be examined anew and in its own context.’ Washington Research Project, Inc. v. Dept. of Health, Education & Welfare, [504 F.2d 238, 245-46 (D.C. Cir. 1974), cert. denied 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975)]. The major and discrete criteria which federal courts have utilized in employing a functional equivalent test are: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.” Board of Trustees v. Freedom of Information Commission, supra, 554.

A

The first prong of the functional equivalent test is whether the plaintiff performs a governmental function. The trial court found that the government’s providing services to victims of domestic violence is a recent phenomena with no historical antecedent, but concluded that the government’s interest in domestic violence and in providing services for victims of such violence has evolved into a governmental function. We agree.

Traditionally, state and local governments have provided fire prevention, police protection, sanitation, public health, and parks and recreation “in discharging their dual functions of administering the public law and furnishing public services.” National League of Cities v. Usery, 426 U.S. 833, 851, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), overruled on other grounds, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985); see also Cos Cob Volunteer Fire Co. No. 1 v. Freedom of Information Commission, supra, 212 Conn. 105-106 (nonoperational activities of volunteer fire department traditional governmental function); Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 554 (providing public education is basic governmental function).

The passage of General Statutes §§ 46b-38a through 46b-38g demonstrates the intent of the legislature to make the prevention and treatment of family violence a governmental function. Section 46b-38c (f) directs local family violence intervention units to enter into contracts with private victim service providers, such as the plaintiff, for the provision of victim advocacy services pursuant to the contract. The plaintiff, however, is not required to perform the advocacy services authorized by § 46b-38c in the absence of such a contract with a unit. See Connecticut Humane Society v. Freedom of Information Commission, supra, 218 Conn. 764. Performing a government service pursuant to contract does not make an entity a public agency subject to the act. See Forsham v. Califano, 587 F.2d 1128, 1138 (D.C. Cir. 1978), aff'd, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980). The key to determining whether an entity is a government agency or merely a contractor with the government “is whether the government is really involved in the core of the program.” Id.

Courts have held that entities that are the functional equivalent of a public agency have the power to govern or to regulate or to make decisions. See Washington Research Project, Inc. v. Dept. of Health, Education & Welfare, supra, 504 F.2d 248; Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 555. The plaintiff here has no power to govern, to regulate or to make decisions affecting government; it provides advocacy services to the victims of domestic violence pursuant only to its contractual obligation.

We agree with the trial court that to the extent that the plaintiff provides advocacy services for victims of domestic violence it does so by subcontract with another nonprofit corporation, that the plaintiff provides services other than victim advocacy, that the plaintiff has no obligation to perform those services except for the contract, and that the plaintiff has no decision-making role in the state’s family service violence prevention and response programs, nor can it govern or regulate such programs.

B

As to the second prong of the test, the commission found and the trial court agreed that the plaintiff receives substantial funds from government at the local, state and federal levels. The amount of money an entity receives from government, however, is not solely determinative of whether the entity is the functional equivalent of government. See United States v. Orleans, 425 U.S. 807, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976). The amount of government money the plaintiff receives reflects the amount of business it does with government. See Lombardo v. Handler, 397 F. Sup. 792, 796 (D.D.C. 1975), aff'd, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932, 97 S. Ct. 2639, 53 L. Ed. 2d 248 (1977). Although the plaintiff receives a significant amount of funding from various government sources, the funds are consideration for providing certain services to victims of family violence as set forth in grants and contracts. Therefore, the second prong is not met.

C

The commission argues that because the advocates employed by the plaintiff are required to meet state certification and confidentiality requirements the plaintiff is govemmentally controlled. We disagree.

The degree of government control and involvement necessary for an entity to be a public agency was addressed in Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 557 A.2d 568, cert. denied, 212 Conn. 804, 561 A.2d 945 (1989). In Hollas, the plaintiff sought, pursuant to the act, the records of a law firm serving as bond counsel for a municipality. The Hallas plaintiff claimed that the firm was a public agency because bond counsel are subject to certain professional standards and statutory requirements. In that case, we determined that the purpose of bond counsel is to provide expert and objective legal opinions for the benefit of prospective investors. Id., 296. Despite the fact that bond counsel must meet certain professional standards, we held that those standards are not evidence of government’s “direct, pervasive or continuous regulatory control.” Id. Therefore, the law firm was not the functional equivalent of a public agency.

We begin our analysis by looking at the functions the plaintiff is empowered to perform. See Washington Research Project, Inc. v. Dept. of Health, Education & Welfare, supra, 504 F.2d 238. The advocates’ certification and confidentiality requirements are functionally similar to those required of lawyers acting as bond counsel. The advocates have expertise in helping the victims of family violence and function without day-today control by the state or other government agencies when working with victims referred by the court. Advocates have no decision-making authority. See id. Therefore, the professional standards and government regulations that the advocates are required to follow do not make the plaintiff the functional equivalent of government.

Finally, the commission argues that because the state may audit the plaintiffs budget and interview its staff and clients, that activity constitutes government regulation. This argument, too, falls short of the mark. The purpose of such government activity is to evaluate, not to control, the plaintiffs daily activity. See United States v. Orleans, supra, 425 U.S. 817-18. “[A] critical element in distinguishing [an agency] from either a contractor ... or a grantee . . . was the federal government’s ‘control [of] the detailed physical performance.’ ” Forsham v. Califano, supra, 587 F.2d 1135. Because government does not have day-to-day involvement in the ongoing activities of the plaintiff, the third prong of the functional equivalent test is not met.

D

The parties agree that the plaintiff was not created by government and, thus, the fourth prong of the test is not met.

Balancing the four factors of the functional equivalent test, we hold that, in light of the reliable, probative and substantial evidence on the record as a whole and as a matter of law, the trial court properly concluded that the plaintiff is not a public agency.

The judgment is affirmed.

In this opinion the other judges concurred.

       This court previously dismissed the case as moot and the defendant appealed. The case returns to this court on remand from the Supreme Court. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 688 A.2d 314 (1997).

       Following the voluntary disclosure, the commission changed the hearing date from March 3 to March 31, 1994.

       General Statutes § 1-15 provides in relevant part: “(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .” (Emphasis added.)

       General Statutes § l-21i (d) provides in relevant part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183 . . . .”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § l-21i (d) provides in relevant part: “The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. . . .”

       The commission also claims that the Superior Court, improperly substituted its judgment with respect to the weight to be given evidence concerning which of the plaintiffs activities constitute governmental functions and incorrectly concluded that the plaintiff does not have contracts with the government.

       General Statutes § 4-183 Q) provides: “The 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 reliable, 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. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       The applicable law is General Statutes § 52-146k (2) and (3), which provide: “(2) ‘Battered women’s counselor’ means any person engaged in a battered women’s center (A) who has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of battering, crisis intervention, communication skills, working with diverse populations, an overview of the state criminal justice system and information about state and community resources for battered women, (B) who is certified as a counselor by the battered women’s center which provided such training, (C) who is under the control of a direct service supervisor of a battered women’s center, and (D) whose primary purpose is the rendering of advice, counsel and assistance to, and the advocacy of the cause of, battered women.
      “(3) ‘Confidential communication’ means information transmitted between a victim of a battering or a sexual assault and a battered women’s counselor or sexual assault counselor in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than any person who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purposes for which such counselor is consulted, and includes all information received by, and any advice, report or working paper given or made by, such counselor in the course of the relationship with the victim.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    BLUE CROSS/BLUE SHIELD OF CONNECTICUT, INC. v. WALTER S. GURSKI, JR.
    (AC 17560)
    Foti, Spear and Hennessy, Js.

      Argued November 19, 1997
    officially released January 20, 1998

      Richard A. Smith, in support of the motion.

      Julie A. Manning, in opposition.
   Opinion

FOTI, J.

The defendant has filed a motion to dismiss the plaintiffs cross appeal, arguing that it is untimely and that the plaintiff is not aggrieved within the meaning of Practice Book §§ 4000 and 4005. We agree that the cross appeal is untimely and therefore dismiss it. Furthermore, because the plaintiff has improperly attempted to include a request for permission to file a late cross appeal in its opposition to the defendant’s motion to dismiss, we decline to consider the plaintiffs request for permission to file a late cross appeal.

The defendant, Walter S. Gurski, Jr., was a podiatrist participating in the health care plans of the plaintiff, Blue Cross/Blue Shield of Connecticut, Inc. The plaintiff brought the present action following an audit that revealed that the defendant had improperly billed the plaintiff for reimbursement to which he was not entitled. The plaintiff filed a motion for judgment of default, which the trial court granted. On June 3, 1997, the trial court held a hearing on damages, at which the plaintiff argued that it was entitled to $46,691.39 in damages and $126,311.49 in attorney’s fees. In its memorandum of decision, however, the trial court ordered the defendant to pay the plaintiff $28,584.93 in damages and $25,760 in attorney’s fees. On August 28,1997, the defendant appealed from the judgment.

On September 15, 1997, the plaintiff filed a cross appeal, claiming that it was entitled to the full amount of damages it had requested at the June 3,1997 hearing. The defendant has moved to dismiss the plaintiffs cross appeal, and the plaintiff has opposed the defendant’s motion to dismiss. In its opposition to the motion to dismiss, the plaintiff has also sought permission to file a late cross appeal.

Practice Book § 4005 requires that a cross appellant be aggrieved by the judgment or decision of the trial court. The twofold test for determining aggrievement is well settled. “ ‘[F]irst, 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 ....’” Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 158-59, 699 A.2d 142 (1997); United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 342-43, 663 A.2d 1011 (1995). “ ‘Mere status as a party or a participant in the proceedings below does not in and of itself constitute aggrievement for the purposes of appellate review.’ ” Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 46 Conn. App. 563, 565, 699 A.2d 314, cert. denied, 243 Conn. 936, 702 A.2d 640 (1997), quoting Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 523, 662 A.2d 1281 (1995).

Generally, a party is not found to be aggrieved if that party has prevailed in the trial court. Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 547, 552 A.2d 796 (1989); Orticelli v. Powers, 197 Conn. 9, 11 n.1, 495 A.2d 1023 (1985); Scarsdale National Bank & Trust Co. v. Schmitz, 24 Conn. App. 230, 233, 587 A.2d 164 (1991). A prevailing party, however, can be aggrieved if the relief awarded to that party falls short of the relief sought. See, e.g., Branch v. Occhionero, 239 Conn. 199, 681 A.2d 306 (1996); Buckley v. Lovallo, 2 Conn. App. 579, 589, 481 A.2d 1286 (1984). Because the plaintiff prevailed in the trial court but was denied the full amount of damages it requested, we find that the plaintiff is aggrieved within the meaning of Practice Book §§ 4000 and 4005.

Practice Book § 4005 also provides that an aggrieved party may “file a cross appeal within ten days from the filing of the appeal. . . .” This court may nevertheless exercise its discretion to consider late appeals, even when a patty timely files a motion to dismiss an untimely appeal. Practice Book § 4183 (6); Kelley v. Bonney, 221 Conn. 549, 559 n.4, 606 A.2d 693 (1992). “Given the large number of appeals . . . filed in this court, however, we have adopted a policy that gives precedence to those appeals that are timely filed .... Therefore, when a motion to dismiss that raises untimeliness is, itself, timely filed pursuant to Practice Book § 4056, it is ordinarily our practice to dismiss the appeal if it is in fact late, and if no reason readily appears on the record to warrant an exception to our general rule.” Nicoll v. State, 38 Conn. App. 333, 335-36, 661 A.2d 101 (1995). In the present case, the plaintiffs September 15, 1997 cross appeal was filed eight days late, and the defendant’s motion to dismiss was timely filed pursuant to Practice Book § 4056. Because we find no reason to make an exception to our general policy in this case, we dismiss the plaintiffs cross appeal as untimely.

As one final matter, we address the plaintiffs request for leave to file a late cross appeal, which is improperly included in its opposition to the defendant’s motion to dismiss. Practice Book § 4183 provides that this court “may, on its own motion, or upon motion of any party ... (6) order that a party for good cause shown may file a late appeal, petition for certification, brief or any other document . . . .” Barring the very limited circumstances, however, under which this court allows a late appeal or cross appeal on its own motion, the proper procedure for seeking permission to file a late cross appeal is to file a motion that conforms to the requirements of Practice Book § 4041. Practice Book § 4041 (a) provides in relevant part that “[m]otions, petitions and applications shall be specific. No motion, petition or application will be considered unless it clearly sets forth in separate paragraphs appropriately captioned: (1) a brief history of the case; (2) the specific facts upon which the moving party relies; and (3) the legal grounds upon which the moving party relies.”

In the present case, the facts do not support allowing, on our own motion, a late cross appeal. Furthermore, the plaintiff did not follow the procedure provided under § 4041 for filing a proper motion for permission, but instead simply included its request for permission to file a late cross appeal within its opposition to the defendant’s motion to dismiss. Accordingly, we decline to consider the plaintiffs request for permission to file a late cross appeal.

The defendant’s motion to dismiss the plaintiffs cross appeal is granted.

In this opinion the other judges concurred.

       Practice Book § 4000 provides that “[a]n aggrieved party may appeal from a final judgment, except as otherwise provided by law.”
      Practice Book § 4005 provides in relevant part that “[a]ny appellee or appellees aggrieved by the judgment or decision from which the appellant has appealed may jointly or severally file a cross appeal within ten days from the filing of the appeal. . . .”

       Practice Book § 4183 (6) provides that this court may “order that a party for good cause shown may file a late appeal, petition for certification, brief or any other document, unless the court lacks jurisdiction to allow the late filing . . . .”

       Practice Book § 4056 provides in relevant part that a motion to dismiss an appeal “must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal . . . .”


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. ANTHONY PAULING
    (AC 15824)
    Foti, Spear and Cretella, Js.
    Argued November 10, 1997
    officially released January 20, 1998

      GeraldB. Gore, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, senior assistant state’s attorney, for the appellee (state).
   Opinion

CRETELLA, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-103 (a), larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b. The defendant claims that the trial court improperly (1) denied his motions for judgments of acquittal because the evidence was not sufficient to sustain the convictions, (2) admitted into evidence the out-of-court statements of a coconspirator and (3) admitted into evidence an unreliable out-of-court identification of the defendant that involved an impermissibly suggestive procedure. At oral argument before this court, counsel for the defendant acknowledged that the third claim was neither raised during trial nor properly preserved for our review and that the identification procedure thereby becomes part of the first claim relating to the sufficiency of the evidence to sustain the convictions. We affirm the judgments of the trial court.

From the evidence presented at trial and reasonable inferences drawn therefrom, the jury reasonably could have found the following facts. In the early morning of September 25, 1994, members of the Norwalk police department were directed to investigate a burglar alarm at a motorcycle dealership. As two officers were proceeding to the location, they observed a red Toyota without a front license plate proceed through a stop sign directly in front of their cruiser. The driver of the car immediately increased speed upon noticing the police cruiser. The cruiser’s spotlight illuminated the interior of the Toyota, allowing the officers to observe clearly the two occupants. During the ensuing pursuit, the Toyota’s lights were turned off and it was driven recklessly through residential neighborhoods, running stop signs and taking evasive action. Eventually, the driver of the Toyota came to an abrupt stop, and both occupants exited the car and attempted to flee through the rear yard of an adjacent residence. As they attempted to scale a fence, they looked directly at the pursuing officers, who again had a clear view of both faces. The officers observed that the driver of the vehicle was wearing very distinctive red pants. The two suspects eluded the pursuing officers, whereupon the officers broadcast a description of the two suspects and were then joined by additional officers and a tracking dog. The trail led the police to an area strewn with mulch and compost.

As the search continued, two other officers spotted the two suspects, one of whom wore red pants, riding bicycles about one mile from the point where the Toyota had stopped. Ignoring orders to stop, the two suspects continued to flee on the bicycles and were eventually apprehended. At police headquarters, both suspects were positively identified by the two officers who had first commenced the pursuit.

During that same period of time, the police were conducting a burglary investigation at the motorcycle dealership, which revealed that at least two persons had broken the window of the dealership, dismantled a metal security bar that protected the window, removed two motorcycles through the broken window, and dragged them from the scene, leaving drag marks on the ground indicating the route that had been taken. Those marks led to an adjoining truck rental lot that contained evidence of attempts to syphon gasoline from the trucks. From there, the trail led to an adjacent railroad embankment where the police discovered the two abandoned motorcycles.

Additional investigation by the police revealed that that morning two African-Americans in a small, red Japáñese car had purchased gasoline that was pumped into a red plastic container matching the description of a container found at the truck rental lot. The attendant at the gas station stated that one of the persons purchasing the gasoline was wearing red pants. Further investigation at the police station revealed that one of the suspects, Alon Scott, had a strong odor of gasoline on his pants. His shoes, as did the shoes of the defendant, contained traces of broken glass, mulch and compost.

Further investigation the following day revealed that during the night a local resident had discovered that her garage had been broken into and that two mountain bicycles had been stolen. The police ascertained that the two bicycles that the defendant and Scott were riding at the time of their apprehension were the bicycles stolen from the garage.

I

The defendant first claims that the evidence presented at trial was insufficient to support his convictions. We are unpersuaded.

We are required to review a claim of insufficient evidence in the light that is most favorable in upholding the verdict. State v. Jones, 34 Conn. App. 807, 811, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). The test is whether the finder of fact “reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) Id.; see State v. Diaz, 237 Conn. 518, 541, 679 A.2d 902 (1996). Whether the evidence is wholly or partially circumstantial does not diminish its probative force. State v. Jones, supra, 811. We have repeatedly held that the inquiry by this court into whether the evidence as shown in the record would support a finding of guilt beyond a reasonable doubt does not require that we believe that the evidence established such guilt, but rather whether any rational trier of fact could have found the essential elements of the crime as having been proven beyond a reasonable doubt. Id.

The evidence presented at trial overwhelmingly supports the jury’s guilty verdict as to each charge, including its finding in connection with the conspiracy charge of an agreement to participate in the criminal acts. See State v. Boykin, 27 Conn. App. 558, 564-67, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992); State v. Rodriguez, 39 Conn. App. 579, 592-600, 665 A.2d 1357 (1995). While the defendant conceded that he was in the company of Scott during the evening and offered an explanation of his activities, “[t]he jury . . . was not required to accept the defendant’s statement as true. [T]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject. State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).” (Internal quotation marks omitted.) State v. Foster, 45 Conn. App. 369, 379, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997). The evidence presented, including the face-to-face identification, the flight by the two suspects, one wearing distinguishing red pants, the stolen bicycles, the attempted gasoline purchase, and the incriminating substances on the shoes of the apprehended suspects, overwhelmingly supports each of the jury’s findings of guilt.

II

The defendant claims that the trial court’s admission into evidence of the out-of-court statements of Scott constituted reversible error on the grounds that they constituted hearsay statements of a coconspirator and that the trial court failed to undertake a preliminary determination of the admissibility of the statements. We do not agree.

Testimony of Officer Russell Fallo, who was involved in the initial pursuit of the suspects, was introduced over the objection of the defendant. The defendant objected on the ground that the statements were inadmissible hearsay. Following the state’s offer of proof outside the presence of the jury, Fallo was allowed to testify as to the nature of a conversation that he had with the coconspirator, Scott.

The prosecution did not offer the challenged statements for their truth, but rather to show that the statement was made and that it was totally inconsistent with the defendant’s statements. As such, it was not offered to prove the truth of the matter asserted. “ ‘Testimony of the contents of a prior oral statement . . . offered only to prove that it was made, is not hearsay.’ ” State v. Jones, 44 Conn. App. 476, 485, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997), quoting State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967).

Furthermore, we agree that if the challenged evidence constituted impermissible hearsay statements of the coconspirator, the overwhelming weight of other independent evidence considered together with all reasonable inferences arising from such evidence would have resulted in the same guilty verdicts. The defendant has fallen far short of his requirement to establish that the admission of the evidence was harmful.

The judgments are affirmed.

In this opinion the other judges concurred.


author: SPEAR, J.

text:
    PAULA PARKER ET AL. v. SHAKER REAL ESTATE, INC., ET AL.
    (AC 16117)
    Spear, Dupont and Healey, Js.

      Argued September 23, 1997
    officially released January 20, 1998

      Ridgely W. Brown, for the appellants (plaintiffs).

      Herbert F. Rosenberg, with whom, on the brief, was James M. Mannion, for the appellees (named defendant et al.).

      Andrew J. O’Keefe, with whom, on the brief, was Katherine Cunningham, for the appellee (defendant Shirley Szot).

      Christopher T. Donohue, with whom, on the brief, was Steven R. Smart, for the appellees (defendant Scalzo Realty, Inc., et al.).
   Opinion

SPEAR, J.

The plaintiffs in this real estate dispute appeal from the judgment of the trial court rendered after a directed verdict in favor of the defendants. The plaintiffs claim that the trial court improperly (1) directed a verdict in favor of the defendants, (2) reimpaneled the jury after discharging them and again directed the verdict, and (3) dismissed plaintiff Paula Parker’s claims for lack of standing.

The plaintiffs sought damages stemming from their allegations that (1) during the 1930s and 1940s, the subject property was used as a gasoline station, (2) gasoline tanks had never been removed from the property, (3) hazardous materials were buried on the property and were still there when the plaintiffs purchased the property on September 14, 1990, and (4) the prior use and history of the property was not disclosed to them by any of the defendants. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On September 14,1990, the plaintiffs purchased the subject property at 4 Fleetwood Avenue in Bethel. Sometime thereafter, Paula Parker claimed to have learned that the property had been the site of a gasoline station in the 1930s and 1940s. The plaintiffs brought suit and thereafter proceeded to trial on an eight count amended complaint that alleged (1) fraudulent misrepresentation on the part of the defendant Shirley Szot, (2) fraudulent failure to disclose on the part of all defendants, (3) negligent misrepresentation on the part of all defendants, (4) breach of contract on the part of the defendant Szot, (5) a violation of the Connecticut Unfair Trade Practices Act (CUTPA) on the part of the defendants Shaker Real Estate, Inc., and Mary Connolly, (6) Gary Parker’s loss of consortium claim against all defendants, (7) innocent misrepresentation on the part of all defendants, and (8) a second CUTPA claim alleging unfair and deceptive trade practices on the part of the defendant Shaker Real Estate, Inc.

At the close of the plaintiffs’ case, the defendants each moved for directed verdicts. The trial court directed a verdict in favor of all defendants on all counts. After the verdict was received and read into the record, the jury was discharged. Upon discovering immediately thereafter that the names of two parties had been omitted from the caption of the verdict form, the court recalled the jury and opened the judgment. The court again directed a verdict for the defendants and discharged the jury. This appeal followed.

I

It is well established that “[a] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. . . . Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995).” (Internal quotation marks omitted.) Mullen v. Horton, 46 Conn. App. 759, 763, 700 A.2d 1377 (1997). While our Supreme Court has acknowledged that “litigants have a constitutional right to have issues of fact decided by the jury and not by the court”; Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954); it has also recognized that “[w]hile the direction of a verdict is not favored, it is justified if upon the evidence the jury could not reasonably and legally have reached any other conclusion than that embodied in the verdict as rendered . . . and if, had the verdict been rendered for the other party, the evidence was so weak that it would be proper for the court to set it aside.” (Citation omitted; internal quotation marks omitted.) Lurier v. Danbury Bus Corp., 144 Conn. 544, 547, 135 A.2d 597 (1957).

Preliminarily, we note that our review reveals no evidence that potentially hazardous materials were ever buried on the property or were still located on the property when Gary Parker and plaintiff Audrey Moverly took title, nor was there any evidence in the record from which the jury could have found the existence of any buried gas tanks. There was no evidence presented from which the jury could have found either that the property had been subject to any diminution in value as a result of its prior use as a gasoline station, or that the plaintiffs had sustained any damages therefrom. We now examine the evidence as to each of the counts in the amended complaint in the light most favorable to the plaintiffs.

With respect to counts one and two, fraudulent misrepresentation and fraudulent failure to disclose, our Supreme Court has repeatedly stated that “[t]he essential elements of an action in common law fraud . . . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Additionally, “[t]he party asserting such a cause of action must prove the existence of the first three [elements of fraud] by a standard higher than the usual fair preponderance of the evidence, which higher standard [is] ‘clear and satisfactory’ or ‘clear, precise and unequivocal.’ ” Id., 540. Moreover, “[f]raud by nondisclosure, which expands on the first three of [the] four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak . . . .” (Emphasis added.) Gelinas v. Gelinas, 10 Conn. App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987). We find no evidence that any of the defendants either made a false representation to the plaintiffs with respect to the subject property or had knowledge of the prior use and history of the property. Absent such evidence, the plaintiffs’ counts of fraudulent misrepresentation and fraudulent failure to disclose must necessarily fail.

We will consider the counts of innocent misrepresentation and negligent misrepresentation together. Our Supreme Court has held that “ ‘even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.’ ” Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). “The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 [(1)] of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Id. We find no evidence that any information regarding the prior use of the subject property was ever supplied to the plaintiffs by the defendants, or that any representation was ever made by the defendants to the plaintiffs with respect to the prior use of the property. Moreover, the plaintiffs failed to present any expert testimony to establish the standard of care required of the defendant real estate agencies or their agents with respect to disclosure in the circumstances of this case. Our Supreme Court has previously determined that a claim of negligent misrepresentation fails where “the plaintiff [fails] to present the necessary expert testimony to inform the jury either about the applicable standard of professional skill or care or about the conformity of the defendant’s conduct to that standard of professional behavior.” Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987). Thus, the claims for negligent misrepresentation and innocent misrepresentation must also fail.

In the fourth count of the amended complaint, breach of contract, the plaintiffs allege that, “[a]s a result of the defendant Shirley Szot’s breach of contract, the plaintiffs have suffered direct contract damages, as well as incidental and consequential damages.” The plaintiffs presented no evidence to show direct contract damages, incidental damages or consequential damages. Specifically, no evidence was presented to show a diminution in market value of the property as a result of the alleged breach. Moreover, no evidence was presented regarding the damages that were allegedly sustained as a result of the prior use and history of the property as a gasoline station. Thus, the plaintiffs’ evidence did not make out a prima facie case of breach of contract.

With respect to the allegations of CUTPA violations, our Supreme Court has stated that “[t]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.” (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638, 698 A.2d 258 (1997). “An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established.” (Internal quotation marks omitted.) Id., 638, quoting Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981). Here, no evidence of deprivation, detriment or injury was presented by the plaintiffs from which a jury could find the ascertainable loss required to prevail under a CUTPA claim.

With respect to the seventh count, loss of consortium, our Supreme Court has stated that “a cause of action for the loss of consortium is derivative of the injured spouse’s cause of action. . . . [Although it is derivative, it is still a separate cause of action, dependent for its assertion on the legal viability of the cause of action in the injured party . . . . [I]t is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse.” (Citations omitted; emphasis added; internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 563-64, 562 A.2d 1100 (1989). Because Paula Parker’s claims were dismissed, the trial court properly directed a verdict for the defendants on Gary Parker’s loss of consortium claim.

II

The plaintiffs next claim that after discharging the jury, the trial court improperly recalled the jury and again directed the verdict. We disagree.

We first note that the plaintiffs’ counsel had an opportunity to review and, in fact, did review the directed verdict form before it was submitted to the jury. While counsel had the opportunity to object to the incomplete caption on the directed verdict form, no objection was raised until such time as the juiy had exited the courtroom. The plaintiffs’ counsel then demanded a mistrial based on the incomplete caption on the directed verdict form. “We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal. . . . Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).” (Internal quotation marks omitted.) Kane v. Kane, 43 Conn. App. 508, 511, 683 A.2d 1034 (1996). The text of each verdict form was exactly the same: “In this case, We, the Jury, find the issues for each and every one of the defendants as directed by the Court, and therefore award no damages.” To grant the plaintiffs a new trial under these circumstances would be ludicrous.

III

The plaintiffs’ last contention is that Paula Parker’s claims should not have been dismissed for lack of standing. Paula Parker concedes that she had no legal interest in the property and she alleges no equitable interest. Our Supreme Court has upheld the dismissal of a party’s claim where the “plaintiff had failed to demonstrate a legal interest in the subject matter . . . .” (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 637, 662 A.2d 1251 (1995). As the sole purchasers of record, only Gary Parker and Moverly had any legal interest in the property.

Our review of the record discloses that the several defendants’ motions to dismiss Paula Parker’s claims were in writing with supporting briefs. No written opposition was ever filed by the plaintiffs. Moreover, Paula Parker has furnished no record of any oral opposition to the motions to dismiss. She now makes several factual claims in support of standing that were not presented to the trial court. It is well established that an appellate court should not “enlarge the proper scope of [its] appellate review either by finding facts or by drawing inferences from the facts actually found.” Mazzone v. Connecticut Transit Co., 240 Conn. 788, 797, 694 A.2d 1230 (1997). Moreover, “[a]n appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found.” (Emphasis added.) Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn. App. 396, 401, 541 A.2d 519 (1988); see Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); State v. Rutledge, 17 Conn. App. 250, 256, 552 A.2d 435 (1989); Lembo v. Schlesinger, 15 Conn. App. 150, 154, 543 A.2d 780 (1988). The record in this case does not support Paula Parker’s claim that the trial court improperly dismissed the action as to her.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are (1) Shirley Szot, the seller, (2) Mary Connolly, the listing broker, (3) Connolly’s agency, Shaker Real Estate, Inc., (4) Cathleen Andreucci, the selling broker, and (5) Andreucci’s agency, Scalzo Realty, Inc.

       The original action was commenced by Paula Parker, Gary Parker and Audrey Moverly (Paula Parker’s mother).

       General Statutes § 42-110b provides in relevant part: “Unfair trade practices prohibited. . . . (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . .

       We note that “[a] person is subject to liability for an innocent misrepresentation if ‘in a sale, rental or exchange transaction with another, [he or she] makes a representation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it . . . even though it is not made fraudulently or negligently.’ ” Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997).

       The plaintiffs proffered no evidence to suggest that any of the defendants failed to exercise reasonable care or competence in obtaining the information regarding the prior use and history of the subject property. Moreover, the record reveals no evidence to suggest that the plaintiffs either relied on any representation regarding the history and prior use of the property or were induced to purchase the property by any representation made by any of the defendants.

       We note that the fourth count, breach of contract, sounds in a variety of claims that we herein do not address for lack of evidence presented in the record. These claims include implied covenant of good faith and fair dealing, express warranty and promise to convey marketable title.


author: DUPONT, J.

text:
    CHRISTOPHER TAFT v. COMMISSIONER OF CORRECTION
    (AC 15955)

      O’Connell, C. J., and Spear and Dupont, Js.
    Argued October 30, 1997
    officially released January 20, 1998

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

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

DUPONT, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. We affirm the judgment.

The petitioner claimed that he was denied effective assistance of counsel as guaranteed under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. He alleged that he was denied the effective assistance of counsel by his trial attorney’s failure (1) to use certain allegedly exculpatory material, (2) to request the trial court to instruct the jury with a missing witness charge pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), and (3) to object to certain hearsay evidence regarding the description of the weapon the petitioner allegedly used in the commission of the crimes of which he was convicted. The petitioner also claims that the habeas court improperly excluded a private investigator’s report as hearsay.

Following a jury trial, the petitioner was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49, and carrying a pistol without a permit in violation of General Statutes § 29-35. The trial court, Schimelman, J., imposed a total effective prison sentence of seventeen years. The charges stemmed from an incident in which the petitioner fired four shots from a handgun at Sylvester Gardner, Jr., the former boyfriend of the petitioner’s girlfriend, Robin Stanford. This court affirmed the petitioner’s convictions on direct appeal. See State v. Taft, 25 Conn. App. 578, 595 A.2d 918, cert. denied, 220 Conn. 921, 597 A.2d 343 (1991).

The petitioner initially was represented by special public defender Karen Goodrow. In preparation of the petitioner’s defense, Goodrow hired James Byrd, a private investigator. In the course of his investigation, Byrd interviewed Stanford and obtained a statement from her in which she alleged that the petitioner had discharged his handgun into the air. This statement contradicted Stanford’s earlier tape-recorded, transcribed statement given to Officer Brian Donnelly of the New Haven police just after the June 10, 1987 shooting, in which she alleged that the petitioner had fired four shots at Gardner. Byrd submitted a written investigative report to Goodrow, which included Stanford’s statement that the petitioner had fired the gun into the air. After discussing the report with the petitioner, and in light of the information provided in the report, Good-row’s theory of defense was that the petitioner had fired the gun into the air merely to scare Gardner, with no intent to harm him.

Prior to trial, Goodrow was discharged from the case and the petitioner’s mother hired Patricia Buck Wolf as private counsel to represent the petitioner. The petitioner discussed Stanford’s statement to Byrd with Wolf and indicated to her that he wanted Stanford to testify. Wolf told the petitioner that Stanford would not be a favorable witness for the defense because she had been Gardner’s girlfriend and because she would testify as to the petitioner’s use of a firearm. Consequently, Wolf did not call Stanford to testify at the petitioner’s trial.

At the habeas hearing, the petitioner was allowed to admit into evidence transcripts of the trial relating to (1) the testimony of Donnelly and (2) the trial court’s jury charge. Through the transcripts of Donnelly’s testimony, the petitioner established that Donnelly was dispatched to Stanford’s apartment to investigate a shooting. After speaking with Stanford, Gardner and two other persons living in the apartment building, Donnelly searched the area for a black .38 caliber snub nosed revolver with a wooden handle. The state did not present evidence that Donnelly had personal knowledge of the handgun’s appearance. Wolf did not, however, raise a hearsay objection to Donnelly’s description of the gun.

Through the transcript of the jury charge, the petitioner also established that the trial court did not instruct the jury that it could draw an adverse inference against the state from its failure to call Stanford as a witness pursuant to the Secondino case. The petitioner called Wolf as a witness at the habeas hearing. Wolf testified that she was not familiar with the adverse inference rule as stated in Secondino. Wolf was also questioned with respect to her failure to object to Donnelly’s testimony regarding the description of the weapon. Wolf conceded that she never objected to the testimony despite the state’s failure to lay a proper foundation as to how the officer learned the details of the weapon’s appearance.

I

The petitioner first claims that he received ineffective assistance of counsel due to his trial counsel’s failure to investigate whether to use material that was potentially exculpatory. The standard to be applied by habeas courts in determining whether an attorney’s representation of a criminal defendant was ineffective is set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice.” Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). Thus, he must establish both that the attorney’s performance was so deficient as to be unreasonable under prevailing professional norms, and that there exists a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 694. The burden is on the petitioner to establish that counsel’s conduct fell below the Strickland standard. Quintana v. Warden, 220 Conn. 1, 5, 593 A.2d 964 (1991).

“ ‘A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice.’ ” Pelletier v. Warden, 32 Conn. App. 38, 46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993). Here, the habeas court confined its analysis of the petition’s ineffective assistance of counsel claim to the prejudice prong of the Strickland test. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. Washington, supra, 466 U.S. 691. “Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., 693. Rather, the defendant must show that there is a “reasonable probability” that the errors affected the outcome. Id., 694.

In the present case, the habeas court properly determined that the petitioner failed to sustain his burden of demonstrating that his counsel’s failure to interview Stanford as a potential witness, in view of her statement to Donnelly, affected the outcome of the case. At the habeas hearing, the petitioner maintained that Stanford would have testified in accordance with her statement to Byrd that the petitioner had discharged the gun into the air rather than directly at Gardner. The evidence reveals, however, that Stanford made contradictoiy statements regarding the direction in which the gun had been fired. She originally told the police that the petitioner had discharged the gun at Gardner. Absent proof that Stanford’s testimony would have been consistent with her statement to Byrd and that that testimony likely would have changed the outcome of the trial, the habeas couxt properly concluded that the petitioner failed to prove prejudice from his attorney’s alleged error. See Andrews v. Commissioner of Correction, 45 Conn. App. 242, 247-48, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997) (petitioner failed to fulfill prejudice requirement with regard to trial coxmsel’s failure to interview or attempt to interview certain potential witnesses where petitioner did not call those witnesses to testify at habeas trial or offer any other proof that their testimony would have been favorable to him).

II

The petitioner next claims that he received ineffective assistance of counsel due to his trial counsel’s failure to request the trial court to instruct the jury that it might draw an adverse inference against the state for its failure to call Stanford as a witness. A Secondino charge instructs the jury that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavoi'able to the party’s cause.’ ” Secondino v. New Haven Gas Co., supra, 147 Conn. 675. Two conditions must be met to trigger the adverse inference under the Secondino rule: (1) the witness must be available, and (2) the witness must be one whom the party would naturally produce. Id.; State v. Greene, 209 Conn. 458, 470, 551 A.2d 1231 (1988).

The habeas couxt properly concluded that a Secondino charge was not warranted because the petitioner failed to establish that Stanford was available to testify. To satisfy Secondino's availability requirement, the petitioner was obligated to provide evidence that the state was “able to procure the witness’ physical presence in the court.” State v. Taylor, 23 Conn. App. 426, 431, 580 A.2d 1004 (1990). Because the petitioner failed to produce sufficient evidence as to Stanford’s availability, the habeas court properly concluded that a Secondino charge was not warranted. Accordingly, the petitioner was unable to prove that trial counsel’s failure to request the instruction was prejudicial to his defense.

Ill

The petitioner claims that he received ineffective assistance of counsel due to his trial counsel’s failure to object to allegedly inadmissible hearsay regarding the type of handgun used in the crime. Specifically, at the habeas hearing, the petitioner claimed that Donnelly’s testimony regarding the physical characteristics of the handgun used in the crime constituted hearsay because the state failed to lay a foundation that such evidence was based on Donnelly’s firsthand knowledge rather than on information relayed to him by the witnesses. The petitioner further claimed that counsel’s failure to raise a hearsay objection to Donnelly’s testimony constituted ineffective representation.

The habeas court resolved this issue by again focusing on the second prong of the Strickland test. The habeas court determined that the petitioner failed to establish prejudice because it found that there was substantial other evidence presented in the case establishing that the petitioner had possessed a gun on the day in question. Specifically, the habeas court noted that Gardner had testified that the petitioner had used a black firearm with a barrel less than twelve inches in length to fire four shots at him. Accordingly, the habeas court properly concluded that even absent the alleged hearsay evidence, “the petitioner would have still been found guilty of the crimes he was convicted of’ and, therefore, the petitioner failed to prove prejudice. We agree with the ruling of the habeas court that the petitioner has failed to meet the prejudice requirement articulated in Strickland. We affirm the habeas court’s rejection of the petitioner’s claim of ineffective assistance of counsel.

IV

We next address the petitioner’s claim that he should be granted a new habeas trial because the habeas court would not allow into evidence the investigative report regarding Byrd’s interview with Stanford. The petitioner claims that the report was admissible to prove the existence of the statement made by Stanford in the report rather than for the truth of that statement. He argues that the very existence of the statement shows the ineffective assistance of counsel. Certain additional facts are necessary for a proper resolution of this claim.

At the habeas hearing, Byrd testified that (1) he interviewed Stanford in the course of his investigation, (2) shortly after the interview he made a written report of what Stanford told him, (3) it was his regular practice to make a written report after interviewing a witness, and (4) he gave his written report to the petitioner’s former attorney, Goodrow. When the petitioner’s counsel produced a document marked as plaintiffs exhibit D for identification, Byrd identified it as a “reconstructed” version of his original report submitted to Goodrow in 1988. Byrd explained that he did not have the original report so he re-created the report from notes that he had kept from his interview with Stanford in 1988. Byrd further testified that the reconstructed report was a fair and accurate representation of the original report.

It is not clear from the transcript of the habeas proceeding what the ground was for the state’s objection to the introduction into evidence of the report. The habeas court sustained the objection of the respondent, however, on the ground that the record contained hearsay and that the petitioner had failed to qualify the reconstructed report under the business record exception to the hearsay rule. On appeal, the petitioner does not argue that the report was admissible as a business record. We, therefore, do not reach the question of whether the report should have been admitted pursuant to General Statutes § 52-180.

There was no dispute in this case that the report existed, nor was there any dispute that Wolf knew about the report and that Stanford had given Byrd a statement. At the habeas hearing, the petitioner testified that the report existed, that Wolf had been furnished with a copy of the report, and that he and Wolf discussed the report on several occasions. Further, evidence of the contents of the report was introduced through Good-row’s testimony. Specifically, Goodrow testified that the report she received from Byrd in 1988 indicated that Stanford had told Byrd that the petitioner had fired the handgun into the air rather than at Gardner. Accordingly, the petitioner cannot demonstrate that the exclusion of the report impaired his ability to support his habeas claim that Wolf rendered ineffective assistance of counsel. We conclude that the outcome of the habeas proceeding was not affected by the ruling on the admissibility of the report, and that the petitioner is not entitled to a new habeas hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner was acquitted of a charge of burglary in the second degree in violation of General Statutes § 53a-102 (a).

       In State v. Taft, supra, 25 Conn. App. 580-81, this court noted the facts underlying the petitioner’s conviction: “In the early morning hours of June 10, 1987, the victim, Sylvester Gardner, Jr., was parked in a car with his former [girlfriend], Robin Stanford, in front of her residence at 36 Tilton Street in New Haven. While sitting in the car with the window rolled down, Gardner felt something touch his head and then heard a voice [say,] T ought to blow your . . . brains out.’ Gardner turned and saw a black gun pointed at him from outside the car. Gardner identified the voice as belonging to the [petitioner], with whom he was acquainted. Gardner testified that the length of the gun’s barrel was less than twelve inches. Stanford then left the car and was followed by the [petitioner] as she returned to her apartment. As Gardner was driving away, the [petitioner] pointed his gun at him. Gardner saw three flashes from the gun and heard three pops, but none of these shots hit him or his car.
      “Gardner then decided to return to Stanford's apartment. Outside Stanford’s apartment, Gardner saw the [petitioner] climbing up the front porch of the apartment. While running upstairs to Stanford’s apartment Gardner heard screams. As Gardner approached the apartment, he saw the [petitioner] leave the apartment and run past him. Gardner then pursued the [petitioner], whereupon the [petitioner] turned and fired a shot at Gardner from about thirty feet. Again, Gardner saw a flash and heard a pop but was not hit.
      “Officer Brian Donnelly of the New Haven police department arrived at the scene. After questioning Gardner and other witnesses about the incident, Donnelly searched the area for a .38 caliber snub nose revolver but was unable to find it. Donnelly was not able to find any spent bullet casings from the described gunfire, nor was he able to find any bullets or bullet holes in the victim’s car. Donnelly testified that casings from a .38 snub nose revolver would have to be manually ejected from the gun’s cylinder. Donnelly also testified that the failure to find bullet casings or holes was common when investigating a shooting scene. The [petitioner] possessed neither a state nor a city permit to carry a pistol.”

       At trial, the petitioner testified that he had not used a handgun but, rather, had thrown a carpenter’s hammer at Gardner.

       Wolfs written request to charge filed with the trial court did not include an adverse inference instruction.

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within areasonable time thereafter. ”


author: LANDAU, J.

text:
    BRUCE ELLAM v. COMMISSIONER OF MOTOR VEHICLES
    (AC 16787)
    Lavery, Landau and Hennessy, Js.
    Submitted on briefs November 13, 1997
    officially released January 27, 1998

      Jeremiah J. O’Connor filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Bruce Ellam, appeals from the judgment of the trial court dismissing his appeal from the administrative decision of the defendant commissioner of motor vehicles (commissioner) suspending his driver’s license pursuant to General Statutes (Rev. to 1995) § 14-227b The plaintiff claims that the trial court improperly concluded that there was substantial evidence in the record to support the commissioner’s finding that the plaintiff refused to submit to a chemical analysis of his breath (intoximeter test).

The following facts are undisputed. On January 4, 1996, the plaintiff was stopped by Officer John Laterra of the Middletown police department and was subsequently arrested for driving while under the influence of alcohol or drugs in violation of General Statutes § 14-227a. Laterra transported the plaintiff to the police station, where the plaintiff consented to performing an intoximeter test. The first test indicated that the plaintiff had a blood alcohol level of 0.268 percent. Approximately one-half hour later, a second test was performed. The police officer’s written report states that “after approx, thirty minutes the second test was administered at approx. 0246 HRS and the accused failed to blow sufficient breath into the tube, as he continued to do so he was advised that if this continued it would constitute a refusal, but he would not cooperate.” A second police officer signed the arresting officer’s report as a witness to the refusal.

A written report of the arrest and test refusal was forwarded to the department of motor vehicles in accordance with § 14-227b (c), and the plaintiff was notified that his operator’s license was suspended for a period of six months because he refused to submit to the intoximeter test. The plaintiff requested an administrative hearing to contest the suspension.

At the hearing, the plaintiff testified, and the police officer’s report and narrative supplement were admitted into evidence. The report lists the results of the two tests as “0.268” and “insuff.” The hearing officer found that the mandates of § 14-227b were satisfied and ordered that the plaintiffs license to operate a motor vehicle be suspended for six months.

Pursuant to General Statutes § 4-183, the plaintiff appealed to the Superior Court, which affirmed the decision of the commissioner. The trial court held that “[it] was the hearing officer’s task, not the court’s, to balance the police officer’s report against the testimony of the plaintiff and determine which deserved the greater weight. As noted, the report stated the police officers’ observation that the plaintiff failed to cooperate in taking the second test. Such passive conduct may constitute a refusal under the statute. See State v. Corbeil, 41 Conn. App. 7, 19, 674 A.2d 454, cert. granted, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed on death of defendant). In the final decision, the hearing officer explicitly held that the police report supported the finding that the plaintiff refused to submit to the second test.”

On appeal to this court, the plaintiff claims that the trial court improperly concluded that there was substantial evidence in the record to support the commissioner’s finding that the defendant refused to submit to the intoximeter test. We do not agree.

Our standard of review as to the weight of the evidence on questions of fact found by an administrative agency is well defined. “[U]nder General Statutes § 4-183 (j) (5), a reviewing court cannot ‘substitute its judgment for that of the [administrative] agency as to the weight of the evidence on questions of fact’ unless the court finds, inter alia, that the administrative findings of fact are ‘clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record’ before the administrative agency.” Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 83, 698 A.2d 803 (1997). “Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Labenski v. Goldberg, 33 Conn. App. 727, 732-33, 638 A.2d 614 (1994). If the commissioner’s determination to suspend the plaintiffs license is supported by substantial evidence in the record, that determination must be sustained. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 507, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994).” (Internal quotation marks omitted.) Paquette v. Hadley, 45 Conn. App. 577, 582, 697 A.2d 691 (1997). “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency] .... Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988).” (Internal quotation marks omitted.) Joyell v. Commissioner of Education, 45 Conn. App. 476, 488-89, 696 A.2d 1039, cert. denied, 243 Conn. 910, 701 A.2d 330 (1997).

In the present case, the administrative record adequately demonstxates a substantial basis of fact from which the plaintiffs refusal to blow sufficient breath into the machine can be reasonably inferred. After hearing testimony from the plaintiff and reviewing the police report and the arresting officer’s supplemental report containing a narrative of the events, the commissioner found that the plaintiff refused to submit to the intoximeter test. The commissioner, in his subordinate findings, stated: “[N]o evidence presented by respondent as to physical inability to complete breath tests. Police report supports finding of refusal.”

The police report reveals several supporting facts for a finding of refusal: the analytical device was certified, operated by a certified operator and checked for accuracy in accordance with state regulations; the plaintiff failed the first intoximeter test because his blood alcohol count was 0.268 percent; the result of the second test taken approximately one-half hour later was “insuff.”; and a second officer witnessed the refusal of the second test. The police officer also stated in his supplemental report that the plaintiff “failed to blow sufficient breath into the tube [and that] as he continued to do so he was advised that if this continued it would constitute a refusal, but he would not cooperate.”

The plaintiff argues that this court’s decision in Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 692 A.2d 834 (1997), compels the conclusion that the evidence was insufficient to support the commissioner’s finding that he ‘refused’ to submit to the intoximeter test. In Bialowas, a police officer stopped the plaintiff because he was speeding and driving in an erratic manner. The officer placed the plaintiff under arrest for operating a motor vehicle while under the influence of alcohol. The officer transported the plaintiff to the police headquarters, where the officer attempted to administer an intoximeter test three times. The officer concluded that the plaintiff failed to give a sufficient breath sample on three separate occasions, which constituted a refusal of the test. Consequently, the commissioner suspended his license and the trial court dismissed the plaintiffs appeal. On appeal, this court reversed that decision, stating that “where it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b. Such refusal must be supported by substantial evidence. A conclusory statement by the arresting officer that the driver has failed to provide an adequate breath sample and has, therefore, refused, does not constitute such evidence.” Id., 714-15.

The fact that most distinguishes the present case from Bialowas is that unlike in Bialowas where the test was inconclusive three times, the plaintiff provided sufficient breath in the first test to fail by more than twice the legal limit. See footnote 1. This indicates that the intoximeter was functioning and that the plaintiff was able to provide sufficient breath. In addition, the fact that the plaintiff had provided sufficient breath for the first test served as a basis for the police officer’s comparison of the plaintiffs effort on the second test. Moreover, in Bialowas, the plaintiff was not told that he was failing to blow hard enough, nor did the officer warn the plaintiff that his continued failure to do so would constitute a refusal. In the present case, the officer warned the plaintiff that his continued failure to blow sufficient breath “would constitute a refusal.”

In Bialowas, the arresting officer’s narrative stated that “the plaintiff ‘was very uncooperative and would not sign any necessary papers.’ ” Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn. App. 715. The “hearing officer made subordinate findings that the plaintiffs ‘conduct was properly deemed a refusal by the police officer, as his failure to sign the temporary license and other documents supports a lack of cooperation.’ ” Id., 707. This court stated that “an overall failure to cooperate, without additional details, cannot be generalized to show a lack of cooperation in a specific respect and, in fact, appears to relate to his refusal to sign the temporary license.” Id., 715. In the present case, however, the arresting officer observed and noted that the plaintiff would not cooperate specifically with respect to providing sufficient breath for the second test. Unlike in Bialowas, here there is no confusion as to the plaintiffs lack of cooperation.

In addition, in Bialowas, the plaintiff claimed that “there was no indication that the testing device was properly checked for accuracy nor was there any indication that the officer who attempted to administer the tests was certified to operate the machine”; id., 714; because the officer failed to check the appropriate box in the police report. In the present case, however, the arresting officer checked that box and successfully administered the first test. Therefore, it is reasonable to believe that the testing device was in proper working condition and was accurate. As a result, we conclude that Bialowas is distinguishable from the present case.

We cannot conclude that the commissioner’s findings of fact were clearly erroneous because there was a sufficient factual basis to support the police officer’s conclusion that the plaintiff refused to blow sufficient breath and substantial evidence from which the plaintiffs refusal to submit to the intoximeter test could be inferred.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 14-227b, as amended by Public Acts 1995, No. 95-279, § 1, provides in relevantpart: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person . . . refuses to submit to the designated test, the test shall not be given .... The police officer shall make a notation upon the records of the police department that he informed the person that his license . . . may be suspended if he refused to submit to such test ....
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis . . . and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license .... The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles .... The report shall be made on a form approved by the commissioner of motor vehicles and shall be subscribed and sworn to under penalty of false statement ... by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis . . . and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.
      “(d) Upon receipt of such report, the commissioner of motor vehicles may suspend any license ... of such person .... Any person whose license . . . has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person . . . that he is entitled to a hearing prior to the effective date of the suspension ....
      SH ^5 ijt
      “(f) The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .
      “(g) If, after such hearing, the commissioner . . . does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension ....

       Although the mtoximeter result slip was not introduced into evidence, the police report, which contains the clear and unambiguous results of the tests, was introduced into evidence.

       In the police report in Bialowas, the arresting officer listed the result of the first test as “aborted.” The arresting officer, in the section of the police report marked “Second intoximeter test,” left the time and result sections blank and filled in, and then crossed out, the date. The officer provided an intoximeter test result tape, attached to the police report, which showed the following:
      “Test Value Time
      BLK .000 02:47
      EXTSTD .096 02:48
      BLK .000 02:49
      STD .098 02:49
      BLK .000 02:50
      INSUFF. BREATH”

        Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn. App. 714 n.11. Unlike in the present case, the arresting officer’s report created confusion and uncertainty as to the results of the tests and the cause of their inconclusiveness.