author: LAVERY, C. J.

text:
    HOLLY LAUVER ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF CANTERBURY ET AL.
    (AC 18691)
    Lavery, C. J., and Zarella and Pellegrino, Js.

      Argued June 13
    officially released October 24, 2000

      Mark K. Branse, for the appellant (defendant Joseph Savino).

      Richards. Cody, for the appellee (named defendant). Brian R. Smith, for the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendant Joseph Savino appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Holly Lauver and Jean-Claude Doucet, from the decision of the defendant planning and zoning commission of the town of Canterbury (commission) granting Savino a special exception permit (permit). On appeal, Savino claims that the court improperly (1) concluded that notice of the commission’s May 9, 1996 public hearing was invalid due to a clerical error in his April 3, 1996 application (original application) for the permit, (2) concluded that a claim of automatic approval cannot be raised in an administrative appeal and (3) voided the permit rather than remanding Savino’s May 7, 1996 application (amended application) for a new hearing. We agree with Savino’s third claim and reverse the judgment of the trial court.

The following facts are relevant to this appeal. On April 13, 1996, Savino applied for a permit, pursuant to General Statutes § 8-3 (g), to excavate sand and gravel from a portion of almost twenty-three acres of real property that he owns. The property lies in the adjacent towns of Scotland and Canterbury with 8.99 acres being located in Scotland and 13.89 acres in Canterbury. The excavation site is in Canterbury, but access to the site is over an existing driveway that traverses the land of others in Scotland. The commission granted the permit on August 8,1996. The plaintiff appealed to the Superior Court, claiming that when the commission approved the permit, it acted illegally, arbitrarily and in abuse of its discretion. The court concluded that notice of the hearing on the amended application was defective and, in sustaining the appeal, voided the commission’s action with respect to the permit. Savino appealed to this court. Additional pertinent facts will be set forth in the discussion of the issues.

I

Savino’s first claim is that the trial court improperly determined that notice of the commission’s May 9,1996 public hearing was invalid due to a clerical error in his original application.

The following additional facts are necessary for our resolution of this claim. Savino’s original application, filed on April 3, 1996, identified the excavation site as being located in Scotland. At a preliminary meeting, the commission indicated that “a better description of the land involved and map and lot numbers should be added to the application,” but caused the required notices for a public hearing on the original application that was to be held on May 9, 1996, to be published. At the commission’s public hearing held on May 9,1996, the original application was not even on the agenda.

In response to the directive for a better description of the land involved, Savino filed an amended application on May 7, 1996. The commission caused notice of the amended application to be published on May 31 and June 11, 1996, for a public hearing to be held on June 13, 1996. The commission continued the June 13 hearing to June 27 and July 9, 1996, and approved the amended application on August 8, 1996. The plaintiff appealed to the Superior Court.

The court sustained the appeal because it determined that the amended application was an application different from the original one, that it required its own notice and that notice of the public hearing for the amended application was defective, as it did not comply with § 8-3 (a). Section 8-3 (a) requires that notice of a hearing be published twice, the first not more than fifteen nor less than ten days before the hearing and the second not less than two days before the hearing. When the time requirements for notice are computed, the terminal days are excluded, Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536, 191 A.2d 553 (1963). The trial court found that because the second notice of the hearing on the amended application was given on June 11, 1996, it was not given two days before the June 13, 1996 public hearing. The court, therefore, concluded that the commission’s action approving the amended application was void because notice was not given in accord with § 8-3 (a).

On appeal before us, Savino argues that the commission continued the hearing on his original application from May 9 to June 13, 1996, and that a separate notice was not necessary to consider his amended application. Savino also argues that the public was not misled by his original application because if interested parties had gone to the commission’s office and reviewed the application and map, they would have seen that the excavation site was in Canterbury, not Scotland. Further, he claims that the public could not have been confused because the commission can make decisions only about land situated in Canterbury, not Scotland. He also asserts that the plaintiff has raised form over substance because hundreds of individuals turned out at the public hearing and a substantial effort was made to oppose the granting of the permit. We are not persuaded.

The questions before this court are whether the trial court properly concluded that the original application and the amended application were separate and distinct and therefore required separate legal notice, and whether the court correctly concluded that the commission’s granting of the permit was illegal for want of proper notice. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 273, 624 A.2d 909 (1993).

“The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts.” (Internal quotation marks omitted.) R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 567, 684 A.2d 1207 (1996). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Jago-Ford v. Planning & Zoning Commission, 34 Conn. App. 402, 407, 642 A.2d 14 (1994).

In this case, the record supports the trial court’s finding that the description of the subject property in the amended application was different from the description in the original application. Furthermore, the original application was not even on the amended agenda of the May 9, 1996 hearing so there could have been no continuance because no action was taken by the commission. The court’s findings therefore are not clearly erroneous.

“The failure to give statutory notice to the general public is a subject matter jurisdictional defect and it cannot be waived nor can jurisdiction be conferred by consent of the applicant. Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991). ‘Strict compliance with statutory mandates regarding notice to the public is necessary’; Koskoff v. Planning & Zoning Commission, [27 Conn. App. 443, 447, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn November 18, 1992)]; and ‘[f]ailure to give proper notice constitutes a jurisdictional defect.’ Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957); see also Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978).” Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 52 Conn. App. 763, 774, 727 A.2d 807 (1999), rev’d on other grounds, 253 Conn. 183, 749 A.2d 1185 (2000).

As to Savino’s claim that the court elevated form over substance, “[z]oning commissions are required to provide adequate published notice of a public hearing to be held on an application or request for a special permit or special exception. . . . Specifically, this court has held that the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing.” (Citation omitted; internal quotation marks omitted.) Nazarko v. Zoning Commission, 50 Conn. App. 517, 519, 717 A.2d 853, cert. denied, 247 Conn. 941, 723 A.2d 318 (1998); see also Delfino v. Planning & Zoning Commission, 30 Conn. App. 454, 461, 620 A.2d 836 (1993).

“A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing. Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990) . Before this court can conclude that any action taken by the board is valid, the notice provision must be complied with fully. Slagle v. Zoning Board of Appeals, [supra, 144 Conn. 693].” Peters v. Environmental Protection Board, 25 Conn. App. 164, 168, 593 A.2d 975 (1991) .

Although Peters concerned General Statutes § 22a-42a (c), this court noted in Peters that the notice provisions in §§ 8-3 and 22a-42a (c) were similar and that the same standards applied. Id., 167-68. As we did in Peters, we reject the argument that the notice was sufficient because the public knew about the application and could have gone to the commission’s office to look at the map of the subject property. “[W]e are unpersuaded by the defendant’s argument that the general public should have cross-referenced the application number with city hall records, or that earlier newspaper articles had connected the property to [the applicant for the permit]. The statute does not call for cumulative notice, nor does it ask that the general public employ the skills of a research librarian to determine where the subject property is located. The act of giving statutory notice is much too important to be done by way of informal, unofficial or chancy cross-referencing.” Id., 169.

We therefore conclude that the court properly determined that the May 9, 1996 public hearing was not for the same application as was the subject of the June 13, 1996 public hearing, and, therefore, separate legal notices were required.

II

Savino’s second claim is that the court improperly concluded that a claim of automatic approval cannot be raised in an administrative appeal. We affirm the court’s refusal to find that the application for the permit was automatically approved, but for a different reason. See Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

The following facts are relevant to this claim. Savino applied for approval of the site plan, as well as the permit. Pursuant to § 8-3 (g), if a commission fails to act on a site plan within the time specified by General Statutes § 8-7d, the site plan is automatically approved. Savino claimed before the trial court that because the commission failed to approve his site plan within the time specified by § 8-7d, he was entitled by default to approval of both the site plan and the permit. Savino argued before this court that although the trial court sustained the plaintiffs appeal, the permit should have been approved because the commission’s failure to give notice in a timely manner resulted in its failure to act within the limits of § 8-7d.

A claim similar to the one raised by Savino was recently decided in Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 253 Conn. 183, 749 A.2d 1185 (2000). In Center Shops of East Granby, Inc., our Supreme Court answered “no” to the question of “whether a site plan is inseparably entwined with an application for a special permit to which it is related, thereby ensuring that . . . §§8-3 and 8-7d, which provide for automatic approval of site plan applications, would apply equally to the submission of a site plan and to its related special permit.” Id., 184. In Center Shops of East Granby, Inc., the commission failed more than once to provide proper notice of a public hearing to consider the applicants’ requests for a special exception permit and approval of site plans. After the applicants failed to agree to further extensions of time, the commission denied the application for a special permit and approval of an accompanying site plan and denied a separate application for approval of a revised site plan. The applicants filed a writ of mandamus seeking approval of their applications because the commission failed to give proper notice of the public hearing and because the commission failed to render a decision on the site plans in a timely fashion. The applicants alleged that the purported hearings on the applications were nullities and that the statutory violations resulted in automatic approval of both applications. After distinguishing several cases, notably, SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 559 A.2d 196 (1989), our Supreme Court concluded that “when a site plan is separable from its accompanying documents and the special permit application is for a use not permitted as of right, the provisions of § 8-3 (g) are not applicable and the time constraints specified in § 8-7d do not control.” Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 193.

The court in Center Shops of East Granby, Inc., noted that, generally, applications for site plans are separate from applications for special permits. In the absence of facts showing that the special permit application is for a permitted use for which no hearing is required and that the special permit application is integral to and virtually indistinguishable from the site plan application, “and unless otherwise set forth in the relevant town regulations, the special permit and the site plan are not inseparable and, therefore, do not meld into a single entity warranting [application of the statutory provisions regarding automatic approval].” Id., 191. “A specially permitted use enjoys a unique status in a town’s planning and zoning scheme because it generally is not restricted to a particular zoning district. The basic rationale for the special permit [is] . . . that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. Common specially permitted uses, for example, are hospitals, churches and schools in residential zones. These uses are not as intrusive as commercial uses would be, yet they do generate parking and traffic problems that, if not properly planned for, might undermine the residential character of the neighborhood. If authorized only upon the granting of a special permit which may be issued after the [zoning] board is satisfied that parking and traffic problems have been satisfactorily worked out, land usage in the community can be more flexibly arranged than if schools, churches and similar uses had to be allowed anywhere within a particular zoning district, or not at all.” (Internal quotation marks omitted.) Id., 191-92.

“Where, as here, the special permit application necessarily must contain a site plan, that fact, by itself, does not trigger automatic approval of either the special permit or its accompanying site plan, pursuant to §§ 8-3 (g) and 8-7d, when the commission does not meet the time limits set forth in § 8-3c (b).” Id., 194. Accordingly we affirm the court’s conclusion that automatic approval was not an appropriate remedy here.

Ill

Savino’s third claim is that the court improperly voided his permit rather than remanding his amended application to the commission for proper notice and a rehearing. We agree.

The commission improperly published notice of Sav-ino’s amended application for the June 11, 1996 public hearing. The applicant should not have been penalized for the commission’s failure to give proper notice of the public hearing on the matter. See Koepke v. Zoning Board of Appeals, 223 Conn. 171, 178-79, 610 A.2d 1301 (1992). The matter should be remanded to the commission so that it may give proper notice and conduct a public hearing to consider Savino’s amended application.

The judgment is reversed and the case is remanded to the trial court with direction to remand the matter to the commission for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The court determined that the plaintiff Jean-Claude Doucet was not aggrieved and dismissed the appeal as to him. In this opinion, we refer to the plaintiff Holly Lauver as the plaintiff.

       The parties have referred to this inaccuracy as a clerical error.

       General Statutes § 8-3 (a) provides in relevant part: “Such zoning commission shall provide for the manner in which regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto . . . . Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing . . . .”

       Savino does not challenge the court’s finding that the second legal notice concerning the June 13, 1996 public hearing was given less than two days before the hearing and was therefore invalid. He attempts to associate the amended application with the original application to claim that notice was proper because notice of the original application for the May 9, 1996 public hearing would have been proper, had that application been on the agenda.

       General Statutes § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8- 7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired. A decision to deny or modify a site plan shall set forth the reasons for such denial or modification. A copy of any decision shall be sent by certified mail to the person who submitted such plan within fifteen days after such decision is rendered. . . .” (Emphasis added.)

       General Statutes § 8-7d (a) provides: “Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.”

        Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 253 Conn. 183, was a mandamus action.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VAUGHN D. OUTLAW
    (AC 19284)
    Foti, Landau and Dupont, Js.

      Argued June 1
    officially released October 24, 2000

      Katerina M. Rohner, with whom, on the brief, were Donald D. Dakers, special public defender, and Brian Driscoll, law student intern, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Vaughn D. Outlaw, appeals from the judgment revoking his probation and committing him to the custody of the commissioner of correction (commissioner) to serve the suspended portion of a sentence imposed on April 4,1986. Although the defendant concedes that there was sufficient evidence to support the trial court’s conclusion that he violated the terms of his probation, he claims, on appeal, that the court improperly denied his motions to dismiss the violation of probation charges because (1) his term of probation had expired before the arrest warrant for violation of probation was issued and (2) General Statutes § 53a-32 does not permit the state to amend the factual basis for a violation of probation charge. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On April 4, 1986, the defendant pleaded guilty under the Alford doctrine to a charge of robbery in the first degree and was sentenced to twenty years of incarceration, execution suspended after ten years, and three years of probation. On that date, he met with a probation officer and signed the standard conditions of probation form, which provided in part that the defendant was not to “violate any criminal laws of the United States, this state or any other state.” In addition, the following information was handwritten at the bottom of the form: “Probation Begins Upon Discharge. Contact Prob. Dept. IMMEDIATELY upon Release.”

During his incarceration, the defendant was convicted of three additional offenses and was sentenced to an additional twenty-three months of incarceration to be served consecutive to the sentence imposed on April 4, 1986. The defendant was incarcerated continuously from July 9, 1985, to August 6, 1996, when he was released from the commissioner’s custody. On August 26, 1996, the defendant met with a probation officer, reviewed the conditions of probation and again signed the conditions of probation form.

On April 9, 1998, defendant was arrested at his residence pursuant to a warrant charging him with assault in the first degree and carrying a weapon without a permit. While they were in the defendant’s apartment, police officers saw in plain view a loaded nine millimeter handgun, a rifle, a shotgun and marijuana, which the defendant admitted were his. Thereafter, on June 17, 1998, Donna Smith Odei, an adult probation officer, completed and signed an affidavit in support of an application for a warrant to arrest the defendant for violation of probation pursuant to General Statutes § 53a-32. Odei attested to the circumstances surrounding the defendant’s April 9, 1998 arrest and that the defendant had violated the terms of his probation by violating the criminal law of this state, namely, committing assault in the first degree and carrying a pistol or revolver without a permit. A Superior Court judge found probable cause on the grounds alleged in the affidavit to issue a warrant for the defendant’s arrest. The defendant subsequently was arrested on June 25, 1998.

The defendant pleaded not guilty to the charge of violation of probation and requested a revocation hearing. On November 20, 1998, the state filed a substitute information charging the defendant with violation of probation for possession of a pistol in violation of General Statutes § 53a-217 and possession of marijuana in violation of General Statutes § 21a-279 (c). The court continued the revocation hearing to permit the defendant to respond to the amended information. The state provided the defendant with the necessary discoveiy materials.

The revocation hearing was held on December 22 and 30, 1998. On December 22, 1998, the defendant filed two motions to dismiss the charge of violation of probation. The basis of one of the defendant’s motions to dismiss was his claim that at the time he was arrested on June 28, 1998, he had completed the term of probation imposed on April 4, 1986. In his second motion to dismiss, the defendant claimed that the state impermis-sibly amended the information on the charge of probation violation. The court denied both motions to dismiss, found that the defendant had violated the terms of probation and sentenced him to the suspended portion of his April 4, 1986 sentence of incarceration. The defendant appealed from the denial of his motions to dismiss.

I

The defendant first claims that the court improperly denied his motion to dismiss that was based on a claim that he had completed the probation portion of his April 4,1986 sentence when the arrest warrant was issued on June 19,1998. To resolve this claim, we must determine whether the court properly determined when the defendant’s probation began. The court found that the defendant’s probation began on August 6, 1996. We agree with the trial court.

The defendant claims, however, that his probation began on February 3, 1995, when he completed the ten year incarceration portion of the April 4,1986 sentence. In support of his position, the defendant cites the portion of General Statutes § 53a-31 (a) that provides: “A period of probation or conditional discharge commences on the day it is imposed, except that, where it is preceded by a sentence of imprisonment with execution suspended after a period of imprisonment set by the court, it commences on the day the defendant is releasedfrom such imprisonment.” (Emphasis added.) The defendant seems to argue that a defendant can be released, as that term is used in § 53a-31 (a), when he completes one sentence that is followed by a consecutive sentence, even though he is not physically released from custody. On the basis of his interpretation of the law, the defendant concludes that by the time the arrest warrant for violation of probation was issued in June, 1998, he had completed his three years of probation.

He further asserts that it was improper for the court to rely exclusively on State v. McFarland, 36 Conn. App. 440, 651 A.2d 285 (1994), cert. denied, 232 Conn. 916, 655 A.2d 259 (1995). McFarland held that “the term release as used in General Statutes § 53a-31 includes physical release from custody, whether by mistake or not, and that probation commences by operation of law on the date of the actual release from imprisonment.” Id., 448. The defendant claims that by relying on McFarland, the court failed to consider State v. Strickland, 39 Conn. App. 722, 667 A.2d 1282 (1995), cert. denied, 235 Conn. 941, 669 A.2d 577 (1996). The defendant argues that Strickland and General Statutes § 53a-31 (c) support his position.

The state argues in opposition that the defendant’s probation commenced on August 6, 1996, when he was released from the custody of the commissioner after he had served the three consecutive sentences that were imposed while the defendant was serving the prison sentence imposed on April 4, 1986. See footnote 4. Under the state’s theoiy, the defendant was therefore still on probation when the court issued the violation of probation arrest warrant. It is also the state’s position that the court properly concluded that McFarland controls and the defendant’s reliance on Strickland and § 53a-31 (c) is misplaced.

We first address our standard of review. “A trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this determination, the trial court is vested with broad discretion. ... In this case, however, an issue of law must be determined before any question of discretion is reached. The court’s legal conclusion that the defendant was subject to a charge of violation of probation is subject to our plenary review. . . . The issue is capable of resolution because there is an undisputed factual record.” (Citations omitted; internal quotation marks omitted.) State v. McFarland, supra, 36 Conn. App. 444.

The defendant claims that completion of that portion of the sentence on which his probation was based constitutes release, despite his continued incarceration for the crimes of which he was convicted while in prison. The holding in McFarland pertains to physical release from custody. In that case, the defendant was mistakenly released from prison prior to the completion of his term of incarceration due to a miscalculation of the time served. Under his original conviction, the McFarland defendant was to serve a period of probation after he completed his imprisonment. After his mistaken release, the defendant was arrested and charged with additional crimes. In an effort to avoid conviction for violation of probation, the defendant argued that he could not be on probation because he had not served his entire prison sentence. Id., 441-42. On appeal, this court held that release from custody includes not only release from prison at the time a sentence of incarceration is concluded but also physical release that may have come about as the result of a miscalculation of the time served. The decision’s rationale is that the defendant is not in the custody of the commissioner of correction under either circumstance.

McFarland stands for the proposition that the statutory term release means “physical release from custody.” In that case, even where the sentence had not been completed, the defendant’s physical release from custody triggered the commencement of probation.

Strickland is distinguishable from the facts here because the defendant in that case, who had been released from custody and placed on probation for previous crimes, was incarcerated after being convicted of separate crimes. His probation was not revoked at that time. State v. Strickland, supra, 39 Conn. App. 724-25. The Strickland defendant argued that he could not simultaneously be on probation and incarcerated. We disagreed, concluding that it is possible for a defendant to be both incarcerated and on probation at the same time as the result of separate convictions. Id., 726-27. We held also that a probation term cannot be suspended or tolled once it has commenced. Id., 731. In Strickland, consecutive terms of imprisonment were imposed on the defendant after he had begun the term of a prior probation sentence. His probation did not stop upon his reincarceration. Here, unrelated consecutive sentences were imposed on the defendant before he completed the incarceration portion of his April 4,1986 sentence. Although probation may continue during a period of incarceration, it does not commence pursuant to § 53a-31 (a) unless the defendant is released from imprisonment.

The defendant’s reliance on § 53a-31 (c) is unavailing. That subsection applies to “any case where a person . . . is under a sentence of probation,” and here the court determined that the defendant’s probation had not yet commenced when he was serving the additional sentences.

For the reasons stated, the court properly determined that the defendant was on probation at the time the court issued the arrest warrant for violation of probation.

II

In a second claim, the defendant maintains that the court improperly denied his motion to dismiss the violation of probation charge because the state may not amend an information to allege a different factual basis for the violation of probation charge than that contained in the affidavit in support of the arrest warrant. We are not persuaded.

The defendant argues that because probation is strictly a creature of statute, authority to initiate revocation proceedings must be found in the statute creating the procedures for the violation of probation. Practice Book § 43-29 provides three methods for initiating violation of probation proceedings. The defendant concedes that the violation of probation proceeding against him was properly initiated because he was arrested in accordance with a warrant supported by an affidavit alleging that he violated a condition of probation by violating a law of this state.

In her affidavit in support of the arrest warrant, Odei attested that the defendant violated the terms of his probation by committing assault in the first degree and carrying a pistol or revolver without a permit. The defendant, however, was not convicted of those crimes. He therefore takes issue with the long form information filed on November 18, 1998, that alleges that the defendant violated § 53a-32 by having a pistol and marijuana in his possession. The defendant contends that the only valid way in which he can be charged with violating probation for the crimes contained in the long form information is for a new arrest warrant to be issued or by using one of the other methods approved by Practice Book § 43-29. He concludes that because of the absence of a new arrest warrant for violation of probation, the court should have granted his motion to dismiss.

The defendant’s position is more stringent than the procedures required in a criminal prosecution. A probation revocation proceeding established by § 53a-32 is akin to a civil proceeding. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). “[Although a [probation] revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. ... It therefore does not require all of the procedural components associated with an adversary criminal proceeding.” (Citations omitted; internal quotation marks omitted.) Id.

It is beyond question that in a criminal proceeding, the state may change the factual basis supporting a criminal count prior to trial. See Practice Book § 36-17. If substantive amendments are permissible prior to trial in a criminal proceeding, then surely our legislature did not intend to prohibit them prior to a hearing in a probation revocation proceeding. Because it was permissible for the state to amend the factual basis of the defendant’s alleged probation violation, the court properly denied the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant does not dispute the court’s factual findings set forth in its memorandum of decision denying his motions to dismiss.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The handwritten notation also contained the address and telephone number of the probation department.

       The defendant was convicted of one count of assault in the third degree and two counts of possession of a weapon in a correctional institution.

       The defendant was incarcerated, serving a prior six month sentence at the time he was sentenced on April 4, 1986.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . [U]pon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may ... (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. ... No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The defendant relies factually on the testimony of Margo Gumkowsld, a records specialist with the department of correction, given during direct examination for the defense:
      “Q. Okay. Now, let me ask you this. You’ve indicated that [the defendant] discharged on this particular sentence, this ten year sentence on February 3, 1995. Is that correct?
      “A. Yes, sir.
      “Q. Now, he did not get released from the department of correction at that time. Is that correct?
      “A. That is correct.
      “Q. And why is that, ma’am?
      “A. He had some consecutive terms that were handed down to him that he had to serve.”

       General Statutes § 53a-31 (c) provides: “In any case where a person who is under a sentence of probation or of conditional discharge is also under an indeterminate sentence of imprisonment, or a sentence authorized under section 18-65a or 18-73, imposed for some other offense by a court of this state, the service of the sentence of imprisonment shall satisfy the sentence of probation or of conditional discharge unless the sentence of probation or of conditional discharge is revoked prior to parole or satisfaction of the sentence of imprisonment.”

       Moreover, in our analysis in McFarland, we observed that “the word 'release’ has been interpreted by our Supreme Court in other contexts to connote a physical release from confinement or imprisonment. See State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989).” State v. McFarland, supra, 36 Conn. App. 447.

       The defendant cites General Statutes § 53a-32 as the statutory basis of Practice Book § 43-29.

       Practice Book § 43-29 provides: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of the defendant’s probation or his or her conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Sections 3-6, 3-9 and 37-1 through 38-23. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law. The filing of a motion to revoke probation under this section shall interrupt the period of the sentence as of the date of filing until a final determination as to revocation has been made by the judicial authority.” (Emphasis added.)

       The defendant concedes that the preponderance of the evidence introduced at the revocation hearing established that he had committed the substituted offenses.

       The defendant does not claim that his constitutional rights to notice of the charges against him were violated by the substitution of the original grounds for violation.

       Practice Book § 36-17 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in its discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”


text:
    MARY ELLEN MURPHY v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17906)
    Lavery, C. J., and Landau and Dupont, Js.

      Submitted September 15
    officially released October 24, 2000

      Barry N. Silver, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LANDAU, J.

This appeal returns to this court on remand from our Supreme Court; Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 757 A.2d 561 (2000); so that we may consider the plaintiffs remaining claim. The plaintiff, Mary Ellen Murphy, previously appealed to this court from the trial court’s judgment dismissing her appeal from the administrative decision of the defendant commissioner of motor vehicles (commissioner) suspending her right to operate a motor vehicle for six months pursuant to General Statutes § 14-227b for refusing to take a test for blood alcohol content. We reversed the trial court’s decision, concluding that in the absence of a temporal nexus, the police officer lacked probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor. Murphy v. Commissioner of Motor Vehicles, 54 Conn. App. 127, 131-32, 733 A.2d 892 (1999). The commissioner appealed to our Supreme Court, which reversed our decision and concluded that “(1) the evidence in the administrative record was sufficient to support a finding of probable cause that the plaintiff had violated § 14-227a; and (2) the evidence in the administrative record was sufficient to support a finding that the plaintiff had operated her motor vehicle.” Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 348. The case was remanded to this court with direction to consider the plaintiffs remaining claim.

The plaintiffs remaining claim is that the trial court improperly determined that the hearing officer’s written decision, issued on an administrative hearing form, was not defective merely because it recited the four issues enumerated in General Statutes (Rev. to 1995) § 14-227b (f), now (g), without additional findings of fact and conclusions of law. We disagree.

The relevant facts are that the plaintiff was operating a motor vehicle on Spruce Bark Road in Hamden on September 9, 1996. Spruce Bark Road runs along the Mill River. Upon noticing a scenic area by the river, the plaintiff decided to stop and take some photographs. She parked her vehicle and walked away from it. As the plaintiff was taking photographs, she heard a rumble, tinned and saw her vehicle roll down an embankment and into the river. The plaintiff then went to a nearby house to summon help. At that time, she took some medication to calm herself. At approximately 7:43 p.m., Officer R. J. Cicero of the Hamden police department responded to the scene. When Cicero arrived at the scene, he spoke with the plaintiff and detected an odor of alcohol on her breath. Cicero noted that the plaintiff staggered as she stood and walked, that her speech was slurred and that her eyes were glassy and bloodshot. The individual who permitted the plaintiff to use the telephone also detected alcohol on the plaintiffs breath.

In response to Cicero’s inquiry about whether she had consumed any alcoholic beverages, the plaintiff denied drinking alcohol but stated that she was “heavily medicated.” Cicero then administered certain field sobriety tests to the plaintiff. Not only did the plaintiff fail the horizontal gaze nystagmus test and the alphabet test, but also she refused to take the walk and turn test and the one leg stand test. She offered by way of explanation that she previously had suffered injuries to her right leg in an accident.

Cicero placed the plaintiff under arrest for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a and advised her of her constitutional rights. The plaintiff was then transported to the Hamden police station where she again was advised of her constitutional rights. In addition, the plaintiff was given an implied consent advisory. Nonetheless, the plaintiff refused to submit to a breath test for blood alcohol content.

At the license suspension hearing, the following relevant documents were admitted into evidence: the motor vehicle summons and complaint, the Connecticut uniform police accident report, the Hamden police department case and incident report and the officer’s arrest and alcohol test refusal or failure report (form A-44). The documents were also before the trial court on appeal. In its memorandum of decision, the court stated that “[a] review of the record . . . establishes that there was substantial evidence in the form of the police officer’s report which reasonably supports the hearing officer’s finding that the police officer had probable cause to arrest the plaintiff. Again, the fact that the plaintiff was not operating the vehicle when it rolled into the river is of little significance. When the officer observed her, she exhibited unmistakable signs of intoxication. It was not unreasonable for the officer to believe that the plaintiff was intoxicated when she drove her vehicle and parked it at the spot where it commenced its descent. . . .

“Lastly, the plaintiff argues that the hearing officer’s decision should be reversed because he did not indicate any subordinate findings of fact. The short answer to this argument is that the record contains ample and substantial evidence to support the ultimate findings of fact made by the hearing officer. Articulation of subordinate findings was not necessary, therefore.”

“The Uniform Administrative Procedure Act . . . prescribes that review of an administrative adjudicative decision should be on the whole record. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. ... If, therefore, the specific evidence cited in support of an administrative officer’s ultimate factual finding is inadequate to support; that ultimate factual conclusion, a reviewing court should search the record of the entire proceedings to determine whether it does in fact contain substantial evidence from which the ultimate factual finding could reasonably be inferred. . . . Thus, if the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding that the [plaintiff operated her motor vehicle while under the influence of intoxicating liquor], the decision must be upheld.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 600-601, 590 A.2d 447 (1991).

On the basis of our review of the entire record, we conclude that there was substantial evidence before the hearing officer to support his factual conclusions, as contained on the administrative hearing form, that the police officer had probable cause to arrest the plaintiff for a violation specified in subsection (b) of General Statutes § 14-227b and that the plaintiff was placed under arrest, refused to submit to a test for blood alcohol content and was operating the motor vehicle. See General Statutes (Rev. to 1995) § 14-227b (f). The trial court, therefore, properly dismissed the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 14-227b (f) provides in relevant part: “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. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases.”

       General Statutes § 14-2271) (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.”

       In her brief to this court, the plaintiff relies substantially on Checovetes v. Goldberg, Superior Court, judicial district of Hartford, Docket No. 704080 (December 14, 1993) (10 Conn. L. Rptr. 14). We note with disapproval that the plaintiff did not provide a copy of that Superior Court decision in the appendix to her brief. “A decision not officially reported may be cited before the court only if the person making reference to it provides the court and opposing counsel with copies of the decision. If it is cited in a brief, a copy of the text of the decision must be included in the appendix of the brief.” Practice Book § 67-9.
      Although we were not required to do so, we have reviewed Checovetes, which we note was written by the same trial court involved in this appeal. The facts and issue in Checovetes are totally distinguishable from the facts and issue here. There, the plaintiff offered uncontroverted expert testimony as to the nature of the medication he was taking at the time of his arrest and why the medication made the results of the blood alcohol content unreliable. The hearing officer made summary findings and conclusions on a form similar to the one at issue in this case. The trial court concluded that because the hearing officer’s factual findings and conclusions of law failed to address the uncontroverted expert testimony and because there was no other evidence concerning the alcohol content of Checovetes’s blood at the time he was operating his vehicle, the hearing officer’s findings with respect to the validity of the blood alcohol content tests were critical. The trial court concluded that the administrative decision form obscured its rationale and that the court could not evaluate adequately the claim on appeal.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. JACQUELINE AGNES PARSLOW
    (AC 19523)
    Landau, Zarella and O’Connell, Js.
    Submitted on briefs September 11
    officially released October 24, 2000

      Kevin M. Johnson filed a brief for the appellant (defendant).

      Mark S. Solak, state’s attorney, Lisa A. Riggione, senior assistant state’s attorney, and Roger Caridad, assistant state’s attorney, filed a brief for the appel-lee (state).
   Opinion

PER CURIAM.

The defendant, Jacqueline Agnes Par-slow, appeals from the judgment of conviction of reckless endangerment in the second degree in violation of General Statutes § 53a-64 and criminal mischief in the third degree in violation of General Statutes § 53a-117. On appeal, the defendant claims that the trial court improperly denied her motion for judgment of acquittal because there was insufficient evidence to sustain the jury’s verdict.

We have fully reviewed and considered the record and the parties’ briefs. The appeal rests on fact-bound issues. The verdict of the jury is supported by the evidence and the inferences that reasonably may be drawn therefrom. See State v. Miller, 59 Conn. App. 406, 412, 757 A.2d 69 (2000). Having applied the appropriate standard of review, we affirm the judgment of the trial court.

The judgment is affirmed.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. CALVIN BRADLEY
    (AC 19551)
    Foti, Zarella and Pellegrino, Js.

      Argued June 2
    officially released October 31, 2000

      Erik Bartlett, certified legal intern, with whom were Richard Lord, certified legal intern, and, on the brief, Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene Calistro, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Calvin Bradley, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b), possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), possession of narcotics with intent to sell within 1500 feet of an elementary school in violation of General Statutes § 21a-278a (b), interfering with an officer in violation of General Statutes § 53a-167a and criminal impersonation in violation of General Statutes (Rev. to 1997) § 53a-130, as amended by Public Acts 1997, No. 97-123, § 3. The defendant was sentenced to a total effective term of twenty years, suspended after ten years, followed by five years of probation.

On appeal, the defendant claims that the evidence was insufficient to sustain his conviction for criminal impersonation and for possession of narcotics and possession with intent to sell. The defendant also claims that the court improperly (1) allowed the jury to find that he had failed to prove drug dependency, (2) allowed him to be convicted and sentenced under both § 21a-277 (a) and § 21a-278 (b) in violation of his double jeopardy rights, (3) allowed expert testimony and (4) instructed the jury. We reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On March 26, 1998, at approximately 10 p.m., members of the New Haven police department narcotics unit were about to execute a search and seizure warrant on the first floor at 191 Pine Street in New Haven. Prior to this action and as part of the investigation, Officer Albert Ferraro, who was undercover, attempted to purchase narcotics from the first floor kitchen window at this address. He knocked on the center window that was covered with plywood bearing a hole cut in the lower left portion. The defendant responded, asking, “How many?” Ferraro said, “One,” and began to hand the defendant $10 through the window. As the defendant reached for the money, he stopped abruptly. As the two men looked at each other, the defendant said, “You are a cop, go over to Fillmore Street.”

Ferraro then returned to the police van and, accompanied by other officers, proceeded to execute the search and seizure warrant. Entry was gained through the exterior door of 191 Pine Street, using a two man battering ram, which was brought because the police had received information that the door to the apartment probably would be barricaded or fortified.

Before entry was actually gained, the defendant was heard to say, “Okay, okay, wait a minute, I will open the door.” The police stopped ramming the door for ten to fifteen seconds, but when it did not open they resumed their efforts. The defendant then opened the door and, despite police orders to get to the ground, he refused and struggled, resisting the officers’ efforts to secure him. The defendant was alone in the apartment when the search warrant was executed, and no one had left or entered up to the time of entry.

The defendant stated that he had been at the apartment since sundown, a few hours earlier. After securing the defendant, the police raid team cleared the apartment room by room to ensure that no other persons were present. The apartment had four rooms, and had no furnishings except for an empty dresser, a mattress and a few other pieces of furniture; it appeared that no one resided there. The only viable exit from the apartment was the front door. The rear door was sealed with plywood and bolts, and the windows were covered with either plywood or steel brackets and wood and metal poles. A search of the defendant’s person revealed $348 as well as a set of keys, one of which unlocked the dead bolt on the barricaded front door.

During the search, the police found five red tinted packets of freebase cocaine in plain view in the kitchen atop a portable stereo just across from the window where Ferraro had attempted the buy. Twenty similar packets of freebase cocaine were found on the toilet tank lid in the bathroom, and eighty-one similar packets of cocaine were found concealed under a dresser in the front room. The eighty-one packets were packaged in a large plastic bag containing three smaller bags, which held twenty-seven packets each. Alongside the drugs under the dresser was found money amounting to $435 and a Bridgeport welfare identification card bearing the photograph of the defendant and the name Kaseem Matts. The evidence was photographed before it was moved. Police also seized an operational walkie-talkie from the front room of the apartment.

The defendant identified himself as Kaseem Matts, but denied that the drugs and the identification found under the dresser belonged to him. Several days later, his true identity was disclosed.

The apartment at 191 Pine Street was described as a “drug house,” where three prior search and seizure warrants had been executed; the defendant conceded that the apartment is a drug house. Sergeant Brian Nor-wood, who was qualified as an expert in the field of narcotics investigations and, specifically, the customary practice of narcotics dealers, testified that under a hypothetical scenario in which a person is in a barricaded premises with 100 packets of cocaine, a walkie-talkie and $300 on his person, sale rather than personal use is more likely indicated. He also gave his opinion as to the ways in which crack cocaine could be packaged for street level sales.

I

The defendant first claims that the evidence presented by the state was insufficient as a matter of law to sustain his conviction for criminal impersonation pursuant to § 53a-130 (a). The state concedes, and we agree, that the statute prohibits impersonating “another” and does not prohibit merely giving a false name. State v. Jackson, 32 Conn. App. 724, 728, 630 A.2d 164, cert. denied, 228 Conn. 903, 634 A.2d 297 (1993). Because the state failed to prove at trial that the defendant intended to impersonate or actually did impersonate a real person named Kaseem Matts, the evidence was insufficient to sustain his conviction under § 53a-130 (a). See State v. Smith, 194 Conn. 213, 220-22, 479 A.2d 814 (1984). We therefore reverse the judgment of conviction of criminal impersonation and direct the trial court on remand to render a judgment of acquittal on that count.

II

The defendant next argues that his conviction on counts one, two and three must be set aside because the state failed to prove that he was in constructive possession of the cocaine at the time of his arrest. We disagree.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . .

“Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 149-51, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). On the basis of our review of the evidence, we conclude that the evidence was sufficient to establish that the defendant had constructive possession of the narcotics.

“[ T]o prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. . . . Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997).

The defendant’s words and actions when Ferraro approached the window, together with the facts that he was alone in the vacant apartment, had in his pocket the key to the only functional door and that there were packaged narcotics in plain view consistent with street level sales, are sufficient cumulative facts, involving substantial circumstantial evidence, to permit the jury reasonably to find constructive possession on the part of the defendant. The cumulative effect of this and other evidence, along with the reasonable inferences that the jury could draw from that evidence, could reasonably have allowed the jury to find that the defendant had knowledge and control over the narcotics, and therefore “possessed” the narcotics seized moments after the defendant was prepared to make a sale of crack cocaine. The jury may use its common sense in assessing the circumstantial evidence to resolve an issue. See State v. Williams, 231 Conn. 235, 252, 645 A.2d 999 (1994); State v. Crump, 43 Conn. App. 252, 259-61, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

Ill

The defendant states that his conviction under § 2 la-278 (b) “must be set aside because there was ample evidence that the defendant was drug-dependent at the time of his arrest.” The defendant concedes that his claim was not properly preserved at trial but seeks Golding review on the basis that this claim is actually a sufficiency of the evidence claim that necessarily meets the four prongs of Golding. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993). We do not agree that the defendant’s claim involves one of sufficiency of the evidence.

To obtain a conviction under § 21a-278 (b), the state must prove that the defendant possessed narcotics with the intent to sell them. “[T]he absence of drug dependency is not an element of the offense .... Rather, [proof of drug dependency provides] an exemption from liability” that must be proved by the defendant. State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992). “[A] person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense.” State v. Jenkins, 41 Conn. App. 604, 609, 679 A.2d 3 (1996).

Whether the defendant met his burden is for the jury to determine. “It is without question that the jury is the ultimate arbiter of fact and credibility. State v. Dyson, 217 Conn. 498, 506, 586 A.2d 610 (1991). As such, it may believe or disbelieve all or any portion of the testimony offered.” State v. Hart, supra, 221 Conn. 604.

“A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible.” (Citations omitted.) Barilla v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983). It is axiomatic, however, that, in rejecting such testimony, a fact finder is not free to conclude that the opposite is true. E.g., State v. Hart, supra, 221 Conn. 605; Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).

While the defendant may have introduced sufficient evidence of his drug dependency to warrant a jury instruction, that does not mean that the jury had to accept that evidence as credible. The defendant’s unpre-served claim is not reviewable.

IV

The state concedes, and we agree, that the defendant’s claim is correct that his double jeopardy rights were violated by his conviction and sentencing under both § 21a-278 (b) and § 21a-277 (a). The state also concedes that this claim, although unpreserved, qualifies for review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant properly seeks to have his sentence under § 2 la-277 (a) vacated and that conviction merged with the conviction under § 21a-278 (b). Because § 21a-277 (a) is a lesser included offense of § 2 la-278 (b), and the two convictions arose out of the same act or transaction and are substantially identical, multiple punishments are improper. See State v. Chicano, 216 Conn. 699, 714, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). We therefore direct on remand that the defendant’s conviction on counts one and two be combined, and that his sentence under § 2 la-277 (a) be vacated.

V

The defendant next alleges that the court improperly admitted expert testimony by a police officer that went to the ultimate issue of the defendant’s intent, thereby usurping the jury’s function as trier of fact. Because this claim was not preserved at trial, the defendant seeks review under the plain error doctrine pursuant to Practice Book § 60-5. We find no merit to this claim.

A challenge to a court’s ruling admitting expert testimony is evidentiary in nature; State v. Vilalastra, 207 Conn. 35, 45, 540 A.2d 42 (1988); and our Supreme Court has declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact. State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993); see also State v. Cardany, 35 Conn. App. 728, 740, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994).

“Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Citations omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 462, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

All questions asked of the police officer were hypothetical questions and general in nature, and they elicited his opinion regarding a pattern of conduct typical of the sale of narcotics or consistent with an intent to sell narcotics. We decline to afford this claim plain error review.

VI

The defendant finally claims that the court improperly failed to instruct the jury that he could be found not guilty of violating § 2 la-278 (b) if he was drug-dependent at the time of his arrest. Specifically, the defendant argues that the court could and should have made the instruction clearer by charging that he should be found “not guilty” of violating § 2 la-278 (b) if he sustained his burden of proving drug dependency by a preponderance of the evidence. The defendant further claims that the court gave an improper instruction when it charged that the state had the burden to prove that he was not drug-dependent. In response, the state argues that the “only reasonable application of the court’s instruction is that the jury was duty bound to acquit if the defendant met his burden.” We agree with the state.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the juiy is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established mies of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [this court] will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

The following instruction, in relevant part, was given by the court with regard to drug dependency: “Now, the defendant is charged in the information, first count, with a violation of § 21a-278 (b), which insofar as it pertains to this case reads as follows: Any person who possesses with the intent to sell or dispense any narcotic substance and who is not at the time of such action drug-dependent, shall be punished. . . . Now, the absence of drug dependency is not an element in the state’s case, that’s why I said in these two statutes the elements are the same. One of our statutes, § 21a-269, has the effect of placing the burden on the defendant to produce some evidence that he was a drug-dependent person at the time of the alleged offense. You recall the defendant and the young lady who testified for him both testified as to the copious quantities of liquor and drugs that the defendant took all the time. It’s also true that because most persons are not drug-dependent or most are not drug addicts, the law presumes that the defendant was not drug-dependent at the time of the incident on which the charge is based. The state, therefore, has the right in the first instance to rely on the presumption that the defendant was not drug-dependent at the time of the offense alleged in the information and the defendant bears the burden of persuading the jury by a preponderance of the evidence that he is drug-dependent .... The mere fact that a person had taken a narcotic drug does not make that person drug-dependent. To be a drug-dependent person, the defendant must show that at the time and date alleged he had developed a state of psychic or physical dependence, or both upon a controlled substance, such as cocaine, following administration of that substance upon a repeated, periodic or continuous basis. Now, the burden that the defendant has to do that is the so-called civil burden, a preponderance of the evidence, the known legal definition of preponderance of the evidence might be, more likely than not. If you envision the scales of justice being held by the blindfolded, a preponderance of the evidence would be that amount of evidence necessary to tilt it ever so slightly in the favor of the—In this case, saying that he’s drug-dependent. If you believe that the defendant has shown by a preponderance of the evidence that at the time of this incident he was drug-dependent, then you have to consider something else, when the defendant produces such evidence. The presumption of nondrug dependency loses all operative effect and the state then bears the burden of proving beyond a reasonable doubt that the defendant was non-drug-dependent at the time of the offense. So, assuming in argument you get this far in your determination, which would mean assuming in argument you found that one, the defendant was in possession of cocaine, and at the time that he was in possession of cocaine, he possessed it with the intent to supply it to somebody else. He’s possessing with intent to sell. The next step is, you have to determine whether at that time when he was in that condition did he show by a preponderance of the evidence that he was a drug-dependent person. If you find that he did, then the state has got to prove beyond a reasonable doubt that he was not drug-dependent. Now, the second count is like the first except whole admission of drug dependence is not involved.”

Our review of the defendant’s claims requires that we examine the court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the instructions. State v. Ortiz, 217 Conn. 648, 661-62, 588 A.2d 127 (1991). “While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a court need not tailor its charge to the precise letter of such a request.” Id., 662. “[A] charge to the jury is not to be clinically dissected nor are portions of the charge to be read in isolation from the entire instruction.” (Internal quotation marks omitted.) State v. Fernandez, 27 Conn. App. 73, 87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). “If a requested charge is in substance given, the court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . Whether a charge is possibly misleading depends on the substance rather than the form of what is said.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, supra, 662.

In the present case, the court was under no obligation to give the specific charge proposed by the defendant where it gave the requested charge in substance. See id. Here the court stated the elements of § 21a-278 (b). It is clear from the court’s statement of the elements of the crime that the defendant could not be punished for violating § 21a-278 (b) if he was drug-dependent at the time of the offense. The court further explained that the defendant had the burden of persuading the jury by a preponderance of the evidence that he was drug-dependent at the time of the offense. Thus, our review of the charge leads us to conclude that the court gave a proper instruction relating the significance of a finding of drug dependency on the part of the defendant at the time of the offense, as well as the defendant’s burden of proving drug dependency. The court misstated the law, however, regarding the burden of proof placed on the state to disprove drug dependency “beyond a reasonable doubt.” Nevertheless, the court’s instruction, as a whole, substantially constitutes a legally and logically correct statement of the law, and we conclude that there is no reasonable possibility that it misled the jury. The charge was given substantially as requested and, although not perfect, the instruction overall was sufficient to guide the jury to a correct verdict.

The judgment is reversed in part and the case is remanded with direction to render judgment of not guilty on the charge of criminal impersonation, to combine the defendant’s convictions on counts one and two, and to vacate the sentence imposed for violating § 21a-277 (a); the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The court imposed the following sentences: Count one, seventeen years, suspended after seven years, five of which are mandatory; count two, fifteen years, suspended after five years, concurrent with the sentence imposed for count one; count three, three years mandatory and consecutive to the sentences imposed in counts one and two; count four, one year concurrent with the sentences imposed for counts one and two; and count five, six months concurrent with the sentences imposed for counts one and two.

       General Statutes (Rev. to 1997) § 53a-130, as amended by Public Acts 1997, No. 97-123, § 3, provides: “A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends 1o be a public servant other than a sworn member of an organized local police department or the Division of State Police within the Department of Public Safety, or wears or displays without authority any uniform, badge or shield by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”

       Counts one, two and three, which alleged violations of §§ 21-278 (b), 21a-277 (a) and 21a-278a (b), respectively, all require proof of possession.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

        State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       We note that the state must prove “beyond a reasonable doubt ... all the elements of the crime and the defendant’s participation or responsibility, but not . . . each evidentiary fact. ... It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Rodgers, 198 Conn. 53, 58 n.l, 502 A.2d 360 (1985); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.4.2, p. 75.

       Although the defendant submitted a written request to charge on drug dependency, he failed to object to the court’s instruction at the conclusion of the charge and noted that there were no exceptions after the court’s subsequent charge to the jury. The defendant claims that he properly preserved the claim for appeal and that in any event, “failure to take exception to the charge would not preclude review under the plain error doctrine.” Suggs v. Suggs, 209 Conn. 733, 751-52, 553 A.2d 1110 (1989). “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice .... This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (internal quotation marks omitted.) State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

       The state argues that the charge was “overly favorable to the defendant because it increased the state’s burden of proof when it erroneously placed the burden on the state to disprove [drug] dependency beyond a reasonable doubt.”


text:
    STATE OF CONNECTICUT v. JESSE WIGGS
    (AC 19197)
    Landau, Zarella and O’Connell, Js.
    Argued September 11
    officially released October 31, 2000

      William J. Nulsen, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Kevin Doyle, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Jesse Wiggs, appeals from the judgment of conviction, rendered after a plea of nolo contendere; see General Statutes § 54-94a; of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). On appeal, the defendant claims that the court improperly denied his motion to dismiss because the state failed to introduce sufficient evidence to support a finding that he had operated a motor vehicle. We affirm the judgment of the trial court.

On May 23, 1997, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). Prior to trial, the defendant filed a motion claiming that the state did not have sufficient evidence to support a finding that he had operated a motor vehicle. After a hearing on the defendant’s motion, the court reasonably could have found the following facts. An officer with the Milford police department received a call advising him that a blue Ford Thunderbird was being operated in an erratic manner on Gulf Street in Milford. The caller provided a partial license plate number for the vehicle. While investigating the complaint, the officer observed a vehicle matching the description provided by the caller that was stopped in a parking lot adjacent to Gulf Street. As he approached, the officer noticed that the vehicle’s engine was running and that the defendant was in the driver’s seat. After the defendant failed a series of field sobriety tests, the police officer arrested him on a charge of operating a motor vehicle while under the influence of liquor. On the basis of the facts and State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939), the court concluded that there was sufficient evidence to support a finding that the defendant was operating a motor vehicle at the time of his arrest. The court then denied the defendant’s motion to dismiss and rendered a judgment of conviction. This appeal followed.

The defendant claims that the court improperly denied his motion to dismiss. The defendant argues that the court’s legal conclusion that he was operating the motor vehicle is not supported by the facts.

Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. See Practice Book § 60-5; Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 503, 646 A.2d 1289 (1994). “[W]here 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 . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). “Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” Pitchell v. Hartford, 247 Conn. 422, 429, 722 A.2d 797 (1999).

Here, the court’s factual determination that the defendant was in the driver’s seat with the engine running when the police officer approached is uncontested and supported by the evidence. The defendant argues, however, that the facts do not support the court’s legal conclusion that he was operating the vehicle for purposes of § 14-227a (a). The definition of operation of a motor vehicle is well established. One need not drive a vehicle to operate it. See State v. Swift, supra, 125 Conn. 402-403. Operation occurs when a person in the vehicle “intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” Id., 403. This court has clarified the meaning of operation by holding that an intent to drive is not an element of operation. See State v. Ducatt, 22 Conn. App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990). “An accused operates a motor vehicle within the meaning of General Statutes § 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any propose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.” Id. Merely engaging the ignition or manipulating the gearshift or releasing the parking brake would satisfy the requisite intent. Id., 92; see also State v. Angueira, 51 Conn. App. 782, 787, 725 A.2d 967 (1999); State v. Marquis, 24 Conn. App. 467, 469, 589 A.2d 376 (1991).

The defendant argues that this case is governed by State v. DeCoster, 147 Conn. 502, 504-505, 162 A.2d 704 (1960), in which our Supreme Court held that operation of a motor vehicle was not established where the defendant was found slumped over the steering wheel with the engine off. In DeCoster, there was no evidence to show when the defendant had operated the vehicle in relation to when he was intoxicated. See id. In this case, however, as in Ducalt, the police officer found the intoxicated defendant in the vehicle, with the engine running, and in a position to control the vehicle’s movement. We conclude, therefore, that the defendant’s motion to dismiss for insufficiency of evidence was properly denied.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure ... or motion to dismiss, the defendant after imposition of sentence may file an appeal within the time prescribed by law. . . .”

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence ... if he operates a motor vehicle on a public highway of this state ... or in any parking area for ten or more cars . . . (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The defendant, in the trial court and in his appellate brief, claimed that the court improperly denied what he labeled a motion to suppress. The legal argument he makes with respect to that claim is that the state had insufficient evidence to prosecute the charge. Practice Book § 41-8 provides that in criminal matters, a motion to dismiss is the proper vehicle to make an insufficiency of the evidence claim. The defendant’s motion is, therefore, more appropriately labeled a motion to dismiss, and will be considered and referred to as such for purposes of this opinion.