author: Dupont, C. J.

text:
    Hans Lundgren v. Town of Stratford
    (4965)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 4
    decision released August 25, 1987

      Gerald F. Stevens, for the appellant-appellee (plaintiff).

      Anthony M. Guerrera, for the appellee-appellant (defendant).
   Dupont, C. J.

The plaintiff appeals and the defendant cross appeals from the trial court’s order for execution of the award made to the plaintiff by the workers’ compensation commissioner under General Statutes § 7-433c, which provides for disability and retirement benefits to members of police or fire departments who have heart disease or hypertension. The principal issue of this appeal involves a determination of the limitation imposed by General Statutes § 7-433b (b) upon the payment of such benefits. That statute provides in relevant part that “the cumulative payments . . . for compensation and retirement . . . benefits under section 7-433e shall be adjusted so that the total of such cumulative payments received by such member . . . shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. ” (Emphasis added.)

The parties disagree as to the interpretation of the words “same position” as used in the statute. The plaintiff asserts that the phrase refers to the same pay grade and pay step as that which he had attained at the time of his disability. He claims, therefore, that the proper measure of the statutory ceiling imposed by § 7-433b (b) is the amount of compensation being paid to a member of his department who is at that same pay step. The defendant claims, on the other hand, that the phrase “same position” merely refers to the same job title encompassing the same duties and responsibilities. It claims that the proper measure of the limitation imposed by the statute is the amount of compensation being paid to the recipient’s successor, regardless of that successor’s pay step.

The parties stipulated to the following relevant facts. The plaintiff was the fire chief of the town of Stratford for forty-two years, and at the time of his retirement on April 1, 1984, earned a weekly salary of $806.59. At that time, he was granted a “Disability in the Line of Duty Pension” from the town due to heart disease, in the amount of $755 per week. Shortly thereafter, the plaintiff also sought disability benefits for heart disease under § 7-433c.

On April 1,1984, a successor with less seniority than the plaintiff was appointed as acting fire chief at a lower pay step and weekly salary than that of the plaintiff’s, in the amount of $669.59. On October 29,1984, the successor was appointed as fire chief at the weekly salary of $695.32. The weekly salary of the plaintiff’s successor was subsequently increased to $758.01 on April 1, 1985, and reached $786.95 by April 29, 1985.

On January 21, 1985, the workers’ compensation commissioner issued a finding and award in the plaintiff’s favor for heart disease and hypertension benefits pursuant to § 7-433c. The commissioner awarded the plaintiff “468 weeks of compensation for 60% permanent partial impairment of the cardiovascular system at the rate of $326.00 per week commencing on July 1,1984, date of maximum improvement. Subject to the lawful limitations of Section 7-433b.” The defendant thereafter failed to make any payments of the commissioner’s award to the plaintiff because the plaintiff’s successor’s salary during all relevant times was exceeded by the amount of the plaintiff’s pension alone. Under the defendant’s interpretation of § 7-433b (b), no workers’ compensation benefits were due to the plaintiff.

The plaintiff filed a motion for execution of the award in the trial court pursuant to General Statutes § 31-300. In his motion, he claimed that the sum of $4953.13 was due from the defendant for the period of July 1,1984, to November 10,1985. The trial court found that under a “plain reading” of § 7-433b (b), the cumulative payments of retirement and disability benefits could not exceed the amount of the weekly compensation being paid to the plaintiff’s successor. It concluded, therefore, that payments under the award were prohibited until the weekly compensation for the plaintiff’s successor had reached $755, or the amount of the plaintiff’s pension. The trial court accordingly ordered execution of the award in the amount of $998.24, and found that “jujnder the statute, such increments would continue to be adjusted as [the successor’s] compensation increases.”

Both parties challenge the trial court’s interpretation of § 7-433b (b). Although the parties agree that this statute imposes a limitation on the payments that may be received under § 7-433c, they disagree as to the measure of that limitation. The precise issue presented in this case has not been decided by this or any other Connecticut court. In determining the meaning of the statute, however, we are guided by well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. Where the language used to express the legislative intent is clear and unambiguous, there is no need to look beyond the words used in the statute. State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Doe v. Institute of Living, Inc., 175 Conn. 49, 57, 392 A.2d 491 (1978). When a statute is ambiguous, however, we turn for interpretive guidance to its legislative history, the circumstances surrounding its enactment, and the purpose of the statute. State v. Blasko, supra; Rhodes v. Hartford, supra. We find that the words “same position” as used in § 7-433b (b) are ambiguous, and we therefore apply the general rules of statutory construction and look beyond the statute to ascertain the intent of the legislature.

Section 7-433b (b) is but one part of a comprehensive legislative scheme directed at the compensation of members of fire and police departments who die or are disabled as a result of heart disease or hypertension. In order to ascertain and effectuate the legislative intent of § 7-433b (b), therefore, it is necessary that we be mindful of the purpose and background of § 7-433c. Section 7-433c in its present form was enacted in 1971 as a means of recognizing the unusual health risks associated with members of paid fire and police departments. It gives qualified members an “outright bonus” or “special compensation” by specifically requiring the payment of benefits to those members who have heart disease or hypertension without requiring them to show that such conditions were work related. See Plainville v. Travelers Indemnity Co., 178 Conn. 664, 668, 425 A.2d 131 (1979).

Under the provisions of § 7-433c, qualifying members are entitled to receive (1) a retirement allowance from the municipal or state retirement system in an amount equal to what they would receive for a disability that arose out of and in the course of employment, and (2) compensation and medical care from the municipal employer in the same amount and in the same manner as provided for under the workers’ compensation law.

As a result of this legislation, and until the passage of § 7-433b (b), many members of police and fire departments were able to receive payments of both retirement and heart disease or hypertension compensation benefits which exceeded the amount of income that they could have earned if they had continued working. 20 H.R. Proc., Pt. 5, 1977 Sess., p. 1817; 20 H.R. Proc., Pt. 14, 1977 Sess., p. 6049. Section 7-433b (b) was enacted in response to this unanticipated and unintended situation. Its purpose was to provide a “statutory ceiling” or cap on the amount of payments that could be received by a claimant. See Maciejewski v. West Hartford, 194 Conn. 139, 146-47 n.4, 480 A.2d 519 (1984); Pyne v. New Haven, 177 Conn. 456, 463-64, 418 A.2d 899 (1979); Middletown v. Local 1073, 1 Conn. App. 58, 63, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). That ceiling is set at the weekly compensation being paid “to members of such department in the same position which was held by such member at the time of his death or retirement.” General Statutes § 7-433b (b).

In interpreting the language used by the legislature in imposing this statutory ceiling, we first look for the intention of the legislative body “ ‘ “as found from the words employed to make it manifest.” ’ ” Dana-Robin Corporation v. Common Council, 166 Conn. 207, 221, 348 A.2d 560 (1974). A statutory term is to be given, when possible, the meaning it has “according to the commonly approved usage of the language.” General Statutes § 1-1 (a); Doe v. Institute of Living, Inc., supra, 57. We therefore usually construe words and phrases according to their plain and ordinary meaning. Sawyer Savings Bank v. American Trading Co., 176 Conn. 185, 189, 405 A.2d 635 (1978).

The ordinary meaning of the word “same” is “resembling in every relevant respect; identical; corresponding so closely as to be indistinguishable.” Webster, Ninth New Collegiate Dictionary (1983). The word “position” is defined as “official rank or status” or “an employment for which one has been hired; job.” Id. The phrase “same position,” therefore, commonly refers to a position or rank which is identical in all respects. We thus interpret the measure of the limitation imposed by § 7-433b (b) to be the amount of compensation being paid to a member in a position and rank which is identical in all respects, including pay grade and pay step, to that which was attained by the plaintiff at the time of his retirement. The statutory ceiling on the benefits that can be received, therefore, is the amount of compensation equal to that which the plaintiff would have received if he had continued working.

In reaching this conclusion, we note that the legislature, by choosing to use the word “same” as a modifier, intended that the word be given effect. No word or phrase contained in a statute should be treated as superfluous or insignificant, as “ ‘there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.’ ” Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978); Engle v. Personnel Appeal Board, 175 Conn. 127, 129-30, 394 A.2d 731 (1978); Doe v. Institute of Living, Inc., supra, 58. The legislature could have either eliminated the modifying word “same” or used the phrase “similar position” or “comparable position” in its place. See, e.g., General Statutes § 31-308 (a). We must effectuate, therefore, the intent of the legislature as manifested in its explicit use of the word “same.”

The defendant claims, however, that the phrase “position” merely refers to job title, and that the statutory limitation imposed by § 7-433b (b) is governed by the amount being paid to the plaintiff’s successor with the same job title. We note that a term which, in isolation, appears to be clear, may nevertheless be rendered ambiguous by the context in which it is used. Doe v. Institute of Living, Inc., supra, 57. The word “position,” as used in the statute, is susceptible to varying definitions. Confronted with this ambiguity, we must apply the general rules of statutory construction in order to determine the legislature’s intent. See State v. Blasko, supra. Foremost among these is the principle that “[t]he law favors rational and sensible statutory construction. . . . ‘When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.’ Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958) . . . .” Maciejewski v. West Hartford, supra, 151-52; see also 2A J. Sutherland, Statutory Construction (4th Ed.) § 45.12.

The defendant’s interpretation of the statute would lead to the anomalous result of having the amount of a recipient’s award tied to the fortuitous setting of a successor’s salary. Usually, a successor would have less seniority than the retiring recipient. Moreover, it is possible that the recipient’s position could be either eliminated or left vacant for a long period of time. Likewise, a position could be filled with more than one person, and such persons could have varying steps of pay. In these situations, the measure of the limitation imposed by the defendant’s reading of § 7-433b (b) would be difficult, if not impossible, to determine, and the results would inevitably be inconsistent and unfair.

Our interpretation of the statute, which focuses on the amount of compensation that the recipient would have received if he continued working, can be uniformly and consistently administered in all situations without difficulty. Such an interpretation of § 7-433b (b), therefore, is a reasonable and logical one under the circumstances of this case. It is also consistent with other compensatory schemes conferring benefits similar to those awarded to the plaintiff. Both the Workers’ Compensation Act and the Municipal Employees Act, for example, contain certain provisions which compute the amount of benefits to be paid by referring to the wages received by the particular employee seeking such benefits. See, e.g., General Statutes §§ 7-432, 31-308, 31-310. In Pyne v. New Haven, supra, 463, our Supreme Court, while not specifically addressing the precise issue presented here, assumed sub silentio that the limitation of § 7-433b was measured by the amount of compensation being paid to the employee, and not by the amount of compensation being paid to his successor.

The legislative purpose and history of the heart disease and hypertension statutory scheme also supports our interpretation. “[I]t is to be presumed that the legislature, in enacting a law, ‘did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law.’ ” Doe v. Institute of Living, Inc., supra, 58, quoting Cicala v. Administrator, 161 Conn. 362, 365, 288 A.2d 66 (1971). The purpose of § 7-433c was to confer benefits to firemen or policemen so that such members would be protected “against economic loss resulting from disability or death caused by hypertension or heart disease.” See Middletown v. Local 1073, supra, 65. Section 7-433b (b) was not enacted to contravene that general purpose. Rather, the purpose of the limitation imposed by § 7-433b (b) was “ ‘to make the employee good as to the extent of [100 percent of] the earnings of which he has been deprived by [his disability].’ ” Emerick v. Monaco & Sons Motor Sales, Inc., 145 Conn. 101, 104, 139 A.2d 156 (1958).

Finally, we conclude that our interpretation is also equitable, because it ensures that a claimant with considerable seniority will not be prevented from obtaining maximum benefits in the likely event that a successor with less seniority is appointed to replace him. In the present case, the plaintiff worked for the defendant for forty-two years. He should not be penalized by the imposition of a statutory cap on benefits received under § 7-433c based upon the compensation being paid to a successor with far less seniority.

In reaching this conclusion, it should be emphasized that our holding in this case does not conflict with our holding in Middletown v. Local 1073, supra. In that case we held, when construing a municipal ordinance with the provisions of § 7-433c, that a municipality could deduct payments received by a claimant under workers’ compensation for heart disease or hypertension from the amount of a pension awarded to the claimant for the same condition. See also Maciejewski v. West Hartford, supra. Such setoff or deduction of payments was permitted because of our finding in that case that “[t]he intent of the legislation is to place qualifying firemen and policemen who die or are disabled as the result of hypertension or heart disease in the same compensation position as those who die or are disabled as the result of on-duty, service-related injuries.” Middletown v. Local 1073, supra, 61. Our Supreme Court has also recognized that the purpose of § 7-433b (b) is to provide a “maximum cumulative payment” or statutory ceiling, and not to preclude the reduction of the amount of the pension if a municipality’s pension plan so provides. Maciejewski v. West Hartford, supra, 146-47 n.4. In the present case, however, we are not faced with the construction of a municipal ordinance requiring such a setoff or deduction of workers’ compensation benefits and disability pension. Moreover, neither party has presented or addressed the issue of whether dual payments of workers’ compensation benefits and retirement benefits for the same disability could ever be received under the provisions of § 7-433c. Our holding in this case is limited to the determination of the statutory ceiling imposed by the provisions of § 7-433b (b) when the municipality does not challenge a dual payment of both workers’ compensation and retirement benefits.

The defendant argues in its cross appeal that the trial court erred in finding that the increments of payment of the award would continue to be adjusted as the compensation of the plaintiff’s successor increases. In view of the fact that we have held that it is the amount of compensation that the plaintiff would have received if he had continued working which constitutes the statutory cap imposed by § 7-433b (b), we need not reach this issue. The cross appeal is therefore dismissed. The defendant also argues, however, that the intention of the legislature was to limit the amount of payments that could be received for heart disease and hypertension compensation to the amount that the claimant was making at the time of his retirement. The defendant alleges that § 7-433b (b), which provides that the payments received by a recipient or his dependents would not exceed “the weekly compensation being paid, during their compensable period, to members of such department in the same position . . .” is unclear. (Emphasis added.) He claims that the term “during their compensable period” is ambiguous because it could relate to either the claimant’s period of employment or the period in which the claimant is entitled to receive § 7-433c benefits. It claims, therefore, that faced with this ambiguity, this court should effectuate the legislature’s intent to limit the payment of such benefits to the amount of the plaintiff’s salary at the time of his retirement.

The legislative history of the statute, however, reflects that the legislature did not intend such a construction. Section 7-433b (b), or Public Acts 1977, No. 77-520, was originally raised as a house bill which provided that payments received by a claimant under § 7-433c would not exceed “one hundred percent of the base salary of such person prior to his disability retirement.” H.B. 8095, January Session, 1977. That bill, however, was subsequently replaced by a bill which was drafted by members of fire and police associations, the House of Representatives, and the Conference of Municipalities. Conn. Joint Standing Committee Hearings, Labor and Industrial Relations, Pt. 2,1977 Sess., p. 757. The substitute bill did not limit the amount of payments that could be received by a qualified recipient to the amount of the base salary he was receiving at the time of his retirement. Instead, it limited the amount of such payments to the “weekly compensation payable during his or his dependents’ compensable period, to members of such department in the same position which was held by such deceased or retired person at the time of his death or retirement.” Substitute H.B. 8095; see also Substitute H.B. 8095 as amended by house amendment schedule “A.”

By ratifying the substitute bill, therefore, the legislature intended that the statutory ceiling imposed by § 7-433b (b) be changed from the amount of the base salary being paid to the recipient at the time of his retirement to the amount of compensation being paid, during the recipient’s compensable period, to members of the department in the same position. The defendant’s argument, therefore, is not supported by either the legislative history of § 7-433b (b) or the wording of the statute.

Moreover, the term “compensable period” is not, as the defendant states, ambiguous. The substitute bill originally stated that the cumulative payments that a claimant or his dependents would be able to receive would not exceed the compensation that was payable “during his or his dependents’ compensable period.” By referring to the claimant’s dependents, the legislature intended that the term “compensable period” refer to the period in which he or his dependents would be entitled to receive benefits under § 7-433c, and not the period in which the claimant was employed. Although the bill was ultimately amended to state that such “payments received by such member or his dependents . . . [would not exceed] the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member” (emphasis added), such amendment did not change the meaning of the statute. See Amendment, LCO No. 8249, offered by Sen. James J. Murphy, Jr., to Substitute H.B. 8095, Calendar No. 8249. Rather, the legislative history indicates that the amendment was intended to constitute only a clarification or edited version of the original statutory intent. “ ‘ “An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative meaning of the original act.” ’ ” State v. McKenna, 11 Conn. App. 122, 131, 525 A.2d 1374 (1987), quoting Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); see also State v. Blasko, supra, 556-57; Shelton v. Commissioner, 193 Conn. 506, 514, 479 A.2d 208 (1984). We conclude that the legislature intended that the term “compensable period” be the period in which the recipient or his dependents are entitled to receive benefits under § 7-433e.

We hold, therefore, that the statutory ceiling imposed by § 7-433b (b) is set at the amount of the weekly compensation being paid to members of such department in the same position and at the same pay grade as that attained by the recipient at the time of his death or retirement. That amount is computed by determining the amount of compensation that the recipient would have received if he had continued working during his compensable period, as interpreted herein.

There is error on the plaintiffs appeal, the judgment of execution is set aside and the case is remanded for further proceedings in accordance with this opinion. The defendant’s cross appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 7-433c provides in relevant part: “Notwithstanding any provision of chapter 568 or any other general statute . . . to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents . . . shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents . . . shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment.”

       At the time of his retirement, the plaintiff was being compensated at pay grade 28, step 6. His successor had attained pay grade 28, step 1, at the time of his appointment. The parties have stipulated to the fact that on April 1, 1985, the weekly salary for a person in pay grade 28, step 6, was $856.92. Pay steps are based on longevity.

       General Statutes § 31-300 provides in pertinent part: “The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner . . . shall, upon request of the clerk of said court, send to him a certified copy of such award.”

       In reaching this amount, the trial court found that from April 1, 1985, to November 10,1985, the plaintiff was entitled to an award for four weeks at the rate of $3.01 and 28 weeks at the rate of $31.65.

       The provisions of General Statutes § 7-433c have had a long and “rather tumultuous history.” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 667, 425 A.2d 131 (1979). In 1951, the legislature enacted a statute which provided that any impairment of health caused by hypertension or heart disease resulting in the total or partial disability of a uniformed member of a paid municipal fire department who successfully passed a physical examination on entry into such service shall be presumed to have been suffered in the line of duty. General Statutes (Sup. 1951) § 175b. This statute, which afforded a rebuttable presumption to such firemen, was subsequently made applicable to regular paid municipal policemen. It was subsequently repealed and reenacted in 1961 as General Statutes § 7-433a; Public Acts 1961, No. 330, §§ 1, 2. It was further amended by the legislature in 1967 to clarify that the statute applied whether the condition occurred while the policeman or fireman was on or off duty at the time of the disability. Public Acts 1967, No. 770, § 1. In 1969, the legislature again amended the statute by making the state retirement system applicable to this section and by substituting a conclusive presumption that the hypertension or heart disease arose out of and in the course of the member’s employment. Public Acts 1969, No. 380, § 1.
      In Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971), our Supreme Court held that the conclusive presumption provided in General Statutes § 7-433c was in contravention of the due process clauses of both the state and federal constitutions. Public Acts 1971, No. 524, was enacted in response to the court’s suggestion that this legislation might be constitutionally perfected by “legislation requiring municipalities to provide special compensation or a bonus for policemen and firemen or supplemental or special risk insurance in the case of such occupations.” Ducharme v. Putnam, supra, 144. The validity of § 7-433e in its present form was sustained upon a subsequent constitutional challenge in Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975).

       The provisions of General Statutes § 7-433c state that the statute was enacted for the following reasons: “In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation . . . .”

       Our Supreme Court has recognized that General Statutes § 7-433c “specifically requires the payment of compensation to firemen and policemen who have successfully passed a physical examination which failed to reveal any evidence of hypertension or heart disease and who subsequently die or are disabled as a result of such conditions. It casts no burden of proof upon the claimant to show that such disease resulted from the employee’s occupation or that it occurred in the line and scope of his employment. The mere fact that a fireman or policeman has hypertension or heart disease and dies or is disabled as a result thereof qualifies him or his dependents for benefits under this section.” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670, 425 A.2d 131 (1979).

       General Statutes § 7-433b (b) was originally raised as House Bill 8095, and was entitled “An Act Concerning a Limitation on Disability Benefits to One Hundred Per Cent of Base Salary.” It provided that “no such person shall receive benefits from his municipal employer or the municipal or state retirement system in excess of one hundred per cent of the base salary of such person prior to his disability retirement.” H.B. 8095, January Session, 1977.

       House Bill 8095 was referred to the Labor and Industrial Relations Committee, which held hearings on the bills. At such hearings, it was recommended that a substitute bill be enacted. The president of the Uniformed Fire Fighters Association testified at the hearings as follows: “I want to speak in opposition to the bill that deals with the disability benefits for fire and police, Bill no. 8095. The reason I’m going to speak in direct opposition to this ... [is that] there was a meeting ... to deal specifically with the heart and hypertension bill for Fire and Police; at which members of both sides of the political persuasion were in attendance as well as the Conference of Municipalities and we did agree to draw up a bill which was going to be in conjunction with the Fire and Police leadership as well as the leadership of the House and the Conference of Municipalities. And I would respectfully suggest that this bill be killed in lieu of the bill that was going to be drawn up by the Conference of Municipalities.” Conn. Joint Standing Committee Hearings, Labor and Industrial Relations, Pt. 2,1977 Sess., p. 757.
      The substitute bill was entitled “An Act Concerning Benefits for Policemen or Firemen Disabled or Dead as a Result of Hypertension or Heart Disease.” It provided: “The cumulative payments under this section shall not exceed one hundred per cent of the weekly compensation payable during his or his dependents’ compensable period, to members of such department in the same position which was held by such deceased or retired person at the time of his death or retirement.” Substitute H.B. 8095, April 11,1977.


source: Caselaw Access Project

author: Spallone, J. Berdon, J.,

license: Public Domain

text:
    Robert G. Reed v. Planning and Zoning Commission of the Town of Chester
    (4889)
    Spallone, Bieluch and Berdon, Js.

      (One judge dissenting)

    Argued March 11
    decision released August 25, 1987

      Thomas P. Byrne, for the appellant (defendant).

      Peter M. Sipples, for the appellee (plaintiff).
   Spallone, J.

The defendant planning and zoning commission of the town of Chester is appealing from the judgment of the trial court sustaining the plaintiff s appeal from the defendant’s .denial of the plaintiff’s application for a subdivision approval. The defendant’s central claim is that the trial court- erred in concluding that the commission had no authority to deny the subdivision application on the ground that the public road abutting the subdivision provided inadequate access to the subdivision. We find no error.

On July 14,1983, the plaintiff, Robert G. Reed, filed an application with the defendant seeking approval for a twelve lot subdivision of a 33.34 acre parcel of land, located on the east side of Turkey Hill Road in Chester. Turkey Hill Road is a public road that is partially unpáved. This unpaved section is narrower than the paved section, and some of the lots of the proposed subdivision abutted this unpaved section. At a duly noticed meeting held on September 8, 1983, the defendant denied the application on the sole ground “that [Turkey Hill Road] at the present time is inadequate to provide safe access and egress to the proposed lots for either residents or emergency vehicles.” The plaintiff appealed to the Superior Court from the defendant’s denial of its subdivision application.

On November 8,1985, the trial court rendered judgment sustaining the plaintiffs appeal and directing the defendant to approve the plaintiffs subdivision application. The court held that none of the Chester subdivision regulations authorized the defendant to deny a subdivision application on the ground of inadequate public access. We granted certification and the defendant filed this appeal.

The defendant contends that the trial court erred in concluding that the Chester subdivision regulations did not allow the commission to deny the plaintiffs application on the ground that Turkey Hill Road provided inadequate access to the proposed lots. The defendant claims that sections 2.0, 3.1, and 3.2 of the Chester subdivision regulations, which generally require the commission to determine if a lot is “buildable,” can be reasonably read to include a duty to determine whether safe access and egress may be had to the proposed lots.

It is well established that when reviewing a subdivision application, a planning commission acts in an administrative capacity. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967). If the application conforms to the regulations, the commission has no discretion and must approve it. Conversely, the application must be denied if it does not conform to the regulations. Westport v. Norwalk, 167 Conn. 151, 157-58, 355 A.2d 25 (1974); Gagnon v. Municipal Planning Commission, 10 Conn. App. 54, 57, 521 A.2d 589 (1987). The main issue in the present case, therefore, is whether the Chester subdivision regulations can be fairly read to contain a requirement that an applicant must ensure that there is adequate access to proposed subdivision lots that are abutted by an inadequate public road. If the regulations contain such a requirement, the commission, upon finding that Turkey Hill Road provided inadequate access, would have no discretion but to deny the application. Westport v. Norwalk, supra. Conversely, if the regulations did not contain such a requirement, the commission, since it failed to find that the application violated any other subdivision requirement, would be obligated to grant the application. Id.

While the defendant points to several regulations that it claims authorize the commission to evaluate the access to proposed lots, it has ignored that section of its regulations that most directly addresses this question. Section 3.3 of the Chester subdivision regulations is entitled “Streets” and contains regulations concerning both existing and proposed streets. Section 3.3.6, entitled “Existing Streets” provides: “Proposed subdivisions abutting on an existing Town street or State Highway shall provide for proper widening of the right of way of such street or highway to the width appropriate for the classification given such street or highway by the Commission. Such provision shall be in the form of a deed dedicating sufficient land to the Town to enable the Town to widen the street or highway to the appropriate width from the center line of the street or highway to the proposed property lines of the subdivision.”

This regulation addresses the very situation present in this case; the proposed subdivision that is abutted by an unimproved, inadequate town road. The regulation responds to this problem by requiring the applicant to deed to the town sufficient land to enable the town to widen the road to the appropriate width — a requirement that the record indicates the plaintiff was ready to fulfill. The quid pro quo contemplated by this regulation is apparent; the landowner is to supply the land and it is anticipated that the town will improve the road. Thus, while it might have been possible, consistent with the power granted to municipalities under General Statutes § 8-25, for the town of Chester to adopt more stringent subdivision regulations that would require an applicant to ensure that existing streets provide adequate access to and from the subdivision, the present subdivision regulations do not require such action. Cf. Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 92-94, 368 A.2d 24 (1976) (subdivision regulations of the town of Easton construed as properly authorizing condition requiring applicant to connect subdivision roads with town roads).

The defendant’s reliance on the general regulations requiring lots to be “buildable” is unavailing. While this claim might have some credence in the absence of a particular regulation concerning inadequate access roads, it has no merit in light of the specific regulation, § 3.3.6, that addresses this issue. Under accepted principles of statutory construction, which also apply to local ordinances; East Lyme v. Waddington, 4 Conn. App. 252, 259 n.2, 493 A.2d 903, cert. denied, 197 Conn. 811, 499 A.2d 61 (1985); provisions of special applicability take precedence over those of general applicability. Patry v. Board of Trustees, 190 Conn. 460, 468, 461 A.2d 443 (1983); Szabo v. Beregszazy, 9 Conn. App. 368, 370, 519 A.2d 81 (1986). Under the circumstances of this case, therefore, the particular requirements of section 3.3.6 regarding public road access would prevail over any requirements that might be gleaned from the general requirements regarding build-able lots in sections 2.0, 3.1 and 3.2.

The defendant also claims that the court erred in concluding that a local planning and zoning commission, when reviewing a subdivision application of land that abuts a town road providing the sole access to the subdivision, may not deny the approval solely on the basis of the condition of the road no matter how inadequate its condition. The trial court, following the Superior Court decision by former Chief Justice House in Pope v. Planning & Zoning Commission, 5 Conn. Law Trib. No. 49, p. 16 (Judicial district of Middlesex, No. 8239) (1979), found that a municipality has a statutory duty to maintain safe highways, and that a planning commission cannot base its decision on the assumption that a municipality will not abide by this duty. We need not decide, however, whether the trial court was correct in following the reasoning of the court in the Pope decision, because we agree with the additional finding of the trial court that by complying with section 3.3.6 of the Chester subdivision regulations, the plaintiff has fulfilled the requirements set forth in the regulations concerning adequate public access.

There is no error.

In this opinion Bieluch, J., concurred.

Berdon, J.,

dissenting. I disagree with the majority. The statute governing subdivisions mandates that the defendant adopt regulations which “provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety . . . . ” General Statutes § 8-25. Section 3.2 of the Chester subdivision regulations specifically provides that the “proposed lots shall be of such . . . location . . . and character . . . that they can be occupied and used for building purposes without danger to the health and safety of the occupants and the public.” It is clear that before the subdivision plan for the plaintiffs property abutting Turkey Hill Road could be approved, the defendant was required to find that the land could be occupied and used for building purposes without danger to the safety of those who would occupy the buildings and the public.

Turkey Hill Road is the only means of access to the plaintiffs proposed subdivision. Acting in its administrative capacity; Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967); the defendant determined that Turkey Hill Road would not provide a safe means of ingress and egress for the property. It unanimously voted to deny the subdivision application of the plaintiff because Turkey Hill Road was “inadequate to provide safe access and egress to the proposed lots for either resident or emergency vehicles.” Since the plaintiff’s subdivision plan failed to satisfy the safety requirements of the subdivision regulations, the defendant correctly denied the application. Westport v. Norwalk, 167 Conn. 151, 157-58, 355 A.2d 25 (1974).

The majority, however, merely states that because another Chester subdivision regulation, § 3.3, requires an applicant to dedicate sufficient land abutting the proposed subdivision to the town to enable the town to widen the road to an appropriate width, the defendant is precluded from denying the application on the grounds that the road will not provide safe ingress and egress to the subdivision. This gives § 3.3 of the Chester subdivision regulations too broad a reading. Section 3.3 is concerned solely with the width of the road and not with safety per se or other factors which could have an effect on the issue of safety. Indeed, in the present case, the defendant not only found that Turkey Hill Road was a single lane, unpaved and unimproved road, but that it also was effectively a dead end road. Turkey Hill Road continues into the town of Haddam, where it is known as Wig Hill Road. The defendant found that Wig Hill Road was in such condition that it “effectively made the Chester portion of the road ‘dead end.’ ”

Thus, even if the town of Chester under § 3.3 had an obligation to widen and improve the road, which the majority concedes that under the subdivision regulations, at least, it does not, the defendant found Turkey Hill Road would still present a safety hazard because it was, in effect, a dead end road.

The trial court, in sustaining the plaintiffs appeal, held that a planning and zoning commission could not refuse to grant a subdivision solely on the basis that the abutting public road was inadequate because the town has a duty to maintain its roads. This misconceives the extent of the town’s duty. It has long been held that a town’s duty to maintain its roads is statutory; Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958); but that the statute, General Statutes § 13a-99, only requires the town to maintain the road in a “reasonably safe condition for public travel.” Stamford Dock & Realty Corporation v. Stamford, 124 Conn. 341, 344, 200 A. 343 (1938). The duty of maintaining a road in a reasonably safe condition depends on numerous factors, including the extent and nature of the public travel. Howe v. Ridgefield, 50 Conn. 592, 596 (1883); see Albright v. MacDonald, 121 Conn. 88, 94, 183 A. 389 (1936). It does not require the town to maintain, improve or reconstruct a road in order to accommodate a proposed subdivision, but rather the obligation is to provide safe travel on public roads based upon the above considerations. Cf. Luf v. Southbury, 188 Conn. 336, 347-48, 449 A.2d 1001 (1982).

Requiring a local government, at its own expense, to improve a road because an adjoining property owner wishes to subdivide his or her land could result in an onerous financial burden on rural towns. Some of these unimproved town roads are merely the width of a cart or foot path. Furthermore, this burden could encourage towns to abandon these roads; General Statutes § 13a-49; which would extinguish the right of the public to cross over them. General Statutes § 13a-55; Luf v. Southbury, supra, 344. Yet, many times these roads, although not able to accommodate vehicular traffic, can serve important public recreational purposes.

Moreover, a property owner is not without a remedy if a town refuses to improve a public road or seeks to extract unreasonable considerations to do so. Pursuant to General Statutes § 13a-103, six or more citizens may apply to the Superior Court to compel necessary improvements, and a town may be ordered to improve a road if it is found that public convenience so requires. Goodspeed’s Appeal, 75 Conn. 271, 274, 53 A. 728 (1902); see Luf v. Southbury, supra, 348. The statute provides, however, that the benefits derived from the improvements of the road be assessed against the parties that are benefited. General Statutes § 13a-103. Any rule which would require a town to improve a road merely because an abutting property owner wishes to subdivide his or her property, which could involve the improvement of several miles of road to accommodate a small subdivision situated in the middle of the woods, without taking into consideration the overall public convenience and ignoring the safety of the persons who will eventually occupy the subdivision, tips the balance between the rights of the property owner and the public which the legislature sought to achieve.

I respectfully dissent.

       Section 2.0 of the Chester subdivision regulations provides in part: “All land to be subdivided or re-subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety

       Section 3.1 of the Chester subdivision regulations provides in part: “The following regulations and design standards shall apply to the planning and map layout of . . . lots . . . and other improvements and facilities shown on the subdivision map.”

       Section 3.2 of the subdivision regulations provides: “The proposed lots shall be of such shape, size, location, topography and character that buildings can be reasonably constructed and that they can be occupied and used for building purposes without danger to the health and safety of the occupants and the public. Any lot which is found to be unsuitable for occupancy and building by reason of water or flooding conditions, unsuitable soil, topography, ledge rock or other conditions shall be combined with another lot that is suitable or shall be marked ‘This is not an approved lot’ on the subdivision map, until necessary improvements to the lot have been made and approved by the Commission and a revised subdivision map has been submitted to and approved by the Commission. All proposed lots shall conform to the requirements of the Zoning Regulations of the Town of Chester.”

       Under General Statutes § 8-26, a planning commission may also “modify and approve” a subdivision application. See also General Statutes § 8-25 (a) (allowing planning commission to adopt regulations regarding conditional approval of certain subdivision plans); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 409 A.2d 1029 (1979) (discussing circumstances under which a commission may impose conditions on subdivision approval).

       Included as part of the plaintiff’s subdivision proposal was the statement: “The applicant will convey to the town of Chester a strip of land 8V2 feet wide along the frontage of the subdivision property on Turkey Hill Road to the town of Chester for purposes of widening of the existing road.” The defendant has not claimed that that strip was inadequate to widen the road properly.

       The regulation does not purport to require the town to improve the public road. As the trial court recognized, the planning commission has no authority over the maintenance of a public road. See General Statutes § 13a-99 (town to maintain public roads); General Statutes § 8-25 (authority of planning commission). While the regulation does not attempt to compel the town to widen and improve a public road, it appears to contemplate that a town will do so pursuant to its duty to build and repair all necessary highways and bridges. General Statutes § 13a-99; see also General Statutes §§ 13a-63, 13a-103 (remedies for failure to maintain highway; parties who benefit from improvement may be assessed a portion of the costs).

       We note, nevertheless, that we would have difficulty in construing the general regulations relied on by the defendant; see footnotes 1-3, supra; as containing any requirements concerning the condition of public access roads. These regulations refer to the character of the building lots themselves, and not to the condition of public access roads to those lots. “Zoning regulations, being in derogation of common-law property rights, should not be extended by construction beyond the fair import of their language and cannot be construed to include by implication that which is not clearly within their express terms.” J & M Realty Co. v. Board of Zoning Appeals, 161 Conn. 229, 233, 286 A.2d 317 (1971). Furthermore, a subdivision regulation, like a statute must be both “ ‘as reasonably precise as the subject matter requires’ ” and “ ‘reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.’ ” Sonn v. Planning Commission, 172 Conn. 156, 159, 374 A.2d 159 (1976).

       See footnote 2 of the majority opinion for the full text of this section of the Chester subdivision regulations.

       The majority found it unnecessary to decide this issue which had its genesis in Pope v. Planning & Zoning Commission, 5 Conn. Law Trib. No. 49, p. 16 (Judicial District of Middlesex, No. 8239) (1979).


author: Coyello, J.

text:
    State of Connecticut v. Jonathan Bradley
    (4439)
    Hull, Spallone and Covello, Js.
    Argued April 7
    decision released August 25, 1987

      KentDrager, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were James G. Clark and Roland Fasano, assistant state’s attorneys, for the appellee (state).
   Coyello, J.

The jury found the defendant guilty of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2). In his appeal from the judgment of conviction, he raises three issues: (1) Whether he was deprived of a fair trial and due process by the state’s remarks to the jury concerning the defendant’s alleged invocation of his fifth amendment right to remain silent; (2) whether the prosecutor’s expressing a personal opinion as to the credibility of a witness violated those rights; and (3) whether error has occurred by reason of the court’s charging the jury on both types of criminal attempt, i.e., § 53a-49 (a) (1) and § 53a-49 (a) (2), when the accused was formally charged with only a § 53a-49 (a) (2) criminal attempt. We find no error.

The jury could reasonably have found that on November 21, 1984, at approximately 8:30 p.m., the victim was sitting in the front seat of a stopped automobile in the parking lot of the Wilbur Cross High School. The passenger door was suddenly pulled open and a lone assailant, later identified as Lance Sykes, put a gun to the victim’s temple and told him to give up his money. A struggle ensued outside of the car, at which point a second assailant, later identified as the defendant, appeared and joined the attack. The victim produced his own revolver and twice shot his original assailant. At this juncture, both would-be robbers fled. Neither the victim nor his companion could identify their attackers who had worn “ski-type” masks over their faces. An immediate canvass of the area hospitals eventually produced Sykes who was suffering from two gunshot wounds. A bullet removed from his thigh was later proved to have been fired from the victim’s pistol.

I

The defendant contends that the prosecutor committed reversible error by introducing evidence and commenting in argument about the defendant’s postarrest statement. He claims that the remark was the “functional equivalent” of silence and, therefore, evidence and comment about it violated his federal and state constitutional rights.

Police arrested the defendant on December 19,1984, on the basis of information supplied by his former girlfriend. They took him to the police station and advised him of his Miranda rights. The defendant stated that he understood these rights, and was nevertheless willing to talk to the officers, but he declined to sign a formal waiver statement.

A detective then asked the defendant if he knew about the incident. He stated, “Yes.” When asked if he was involved, he responded that he was not going to tell the detective whether he was involved.

The dialogue continued. The defendant first claimed to have no knowledge of his whereabouts on the date and time in question. Some time later in the conversation, he stated that he was not involved in the incident and offered an explanation as to where he had been. The colloquy continued for about one hour.

The prosecutor not only introduced evidence of this conversation but also chose to comment on it four times during closing argument. The defendant at no time objected nor took exception. “We have already held, however, that [incursions into the constitutionally protected right to remain silent] . . . are properly reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), despite the failure to raise them in the trial court. State v. Zeko, 177 Conn. 545, 553, 418 A.2d 917 (1979); State v. Moye, 177 Conn. 487, 495-96, 418 A.2d 870, vacated on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979).” State v. Morrill, 197 Conn. 507, 536, 498 A.2d 76 (1985).

“It is well established that it is constitutionally impermissible for the ‘court or prosecutor to comment on the defendant’s silence in the face of in-custody accusations or interrogation.’ ” State v. Talton, 197 Conn. 280, 294, 497 A.2d 35 (1985).

The Miranda warnings, promulgated as a “means of safeguarding Fifth Amendment rights . . . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” Doyle v. Ohio, 426 U.S. 610, 617, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). “[S]ilence following Miranda warnings is ‘insolubly ambiguous’ because it may constitute a reliance upon those rights rather than a tacit admission that the accused has an insufficient defense or explanation for his conduct.” State v. Talton, supra, 295.

What makes the Doyle rationale inapplicable to the present case is the fact that the defendant did not remain silent thereafter nor did he “ask that the interrogation be ended or indicate reluctance to answer other inquiries.” State v. Talton, supra, 296. “After being given Miranda warnings, the defendant clearly chose to forego his right to remain silent. Once an arrestee has waived his right to remain silent, the Doyle rationale is not operative [for the precise reason that] the arrestee has not remained silent . . . .” State v. Talton, supra. It is the silence following Miranda warnings that creates the ambiguity. Once the silence is broken, the ambiguity disappears and along with it disappears the fifth amendment protection that might otherwise be applicable to the situation. The defendant’s single paradoxical response to the detective’s question does not constitute an assertion of his fifth amendment right when viewed in the context of a dialogue that continued thereafter without protest or apparent hesitation, for an additional hour.

II

The defendant further contends that the prosecutor committed reversible error in argument to the jury by bolstering the credibility of the prosecution’s key witness by repeated expressions of his personal opinion.

The witness was the defendant’s former girlfriend who came forward voluntarily and reported the very precise details of the defendant’s admission to her that he in fact had collaborated with Sykes in the abortive robbery of November 21, 1984.

Again, we are confronted with the fact that this claim was not presented at the trial. The defendant did not move for a mistrial. He raised no objection to the language used in the state’s closing argument and did not request a curative instruction.

In view of the defendant’s failure to raise or preserve this assignment of error, the claim is only reviewable now on direct appeal if it falls within the second of the “exceptional circumstances” articulated in State v. Evans, supra, 70: i.e., consideration of such a claim is only appropriate “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id. That is not the case here. We do not think that the prosecutor’s alleged expressions of personal opinion viewed in the context of the totality of the trial, influenced the jury’s verdict of guilt. “Where counsel does not choose to [request a curative instruction] or to seek a mistrial, he presumably does not view the remarks as so prejudicial that his client’s right to a fair trial is seriously jeopardized.” State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). We can see no reason to depart from our prior holding that the “ ‘ “fact that counsel for the accused took no exception to the remarks of the State’s Attorney, either at the time they were made or at the close of his argument, was a waiver of the right of the accused to now press this assignment of error.” ’ (Citations omitted.) State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974).” State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985).

Ill

The defendant finally claims that the trial court’s instructions to the jury on the definition of criminal attempt deprived him of either his constitutional right to fair notice of the charge against him or his constitutional right to be convicted only upon proof beyond a reasonable doubt. The defendant claims deprivation of both his federal and state constitutional rights under the fifth, sixth and fourteenth amendments to the United States constitution and under the constitution of Connecticut, article first, § 8.

The defendant concedes that he did not take exception to this charge or raise these claims at trial. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, supra, 69. Practice Book § 852 provides that this court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered. ...” (Emphasis added). “A claimed constitutional error, raised for the first time on appeal, will be examined, if at all, not to ascertain whether the ruling or instruction was undesirable, erroneous, or even universally condemned but rather when reviewed in the context of the entire trial it violated some right guaranteed to the defendant by the fourteenth amendment to the constitution of the United States; Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); or article first, § 8 of the constitution of Connecticut.” State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982). We find no such violation here.

“ ‘The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any further prosecution for the same offense . . . .” State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979) . . . .’” State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987). “Therefore, for the defendant to establish an infringement of [his sixth amendment (United States constitution) or his article first, § 8 (Connecticut constitution)] rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense.” State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986).

Examination of the record does not support the defendant’s claim that he was surprised by the disputed instruction or that his defense was prejudiced in any way. General Statutes § 53a-49 provides two definitions of criminal attempt to commit a crime. The first type, § 53a-49 (a) (1), deals with the situation where one engages in conduct which would constitute the offense if matters were as he perceived them; i.e., some mistake in fact prevents these from being a crime even though the actor intends to commit one. The second type, § 53a-49 (a) (2), involves carrying out in part some substantive portions of the proscribed conduct.

The present case involves elements of both types of attempt. The first assailant, Sykes, accosted the victim without help from others. The jury could reasonably infer that at that point the then absent defendant was acting as lookout in furtherance of the act of his colleague whom the defendant mistakenly assumed was in the process of committing and completing the act of robbery. This was not the case, however, because of the victim’s successful resistance. It was at this point that the defendant allegedly joined the fray, thereby adding the second type of criminal attempt to his earlier criminal act as lookout.

We conclude that the record does not support the defendant’s claim that he was surprised by the disputed instruction or that this instruction prejudiced his defense. The key to the state’s case involved the accused’s admission to his girlfriend that he was involved in this incident. The heart of his defense and the central issue before the jury was the matter of the truthfulness of her statement and not any factual subtlety that may have occurred at the time of the offense.

For similar reasons, we find no violation of the defendant’s constitutional rights to due process. “Due process requires that a criminal defendant be given notice of the specific charge against him and an opportunity to defend against that charge.” State v. Franko, supra, 491-92. Although the information alleged that the defendant had committed only the second type of criminal attempt, as discussed earlier, there was also evidence to support a conviction under the alternate definition of criminal attempt.

The presentation of this evidence gave the defendant adequate notice that he was being accused under both theories of liability. The state could properly have moved during trial for permission to amend the information to conform with this additional proof. Practice Book § 624. In the absence of prejudice to the defendant, the trial court would have been justified in permitting such an amendment without violating the defendant’s right to due process. State v. Belton, 190 Conn. 496, 501 n.5, 461 A.2d 973 (1983); State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); State v. Ruiz, 171 Conn. 264, 269-70, 368 A.2d 222 (1976). “We have already determined that the defendant’s ability to present a defense was not prejudiced by the implicit expansion of the information. Accordingly, the record does not support the defendant’s claim that his due process rights were violated.” State v. Franko, supra, 492.

There is no error.

In this opinion the other judges concurred.

       U.S. Const., amends. V and XIV.

       Conn. Const., art. I, § 8.

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

       Although the defendant points to ten alleged incidents of improper bolstering of the witness, examination of the record produces only one sentence that might be so interpreted: “[I]t is the quality of the evidence, the quality of the testimony that you heard that counts, not the quantity. It is not a matter of counting up the number of witnesses in the State’s favor or counting up the number of pieces of evidence. It is the quality of the testimony, the quality of the evidence. I would take one Carmella Rieeiardelli to ten other witnesses who were less frank and less open. ” (Emphasis added.)

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose.”

       General Statutes § 53a-133 provides in relevant part: “A person commits robbery when, in the course of committing a larceny, he uses or threatens immediate use of physical force upon another person . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property ... he wrongfully takes . . . such property from an owner.”

       Practice Book § 624 provides in relevant part: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”


author: Schaller, J.

text:
    State of Connecticut v. Frank X. LoSacco
    (4907)
    Borden, Bieluch and Schaller, Js.
    Argued May 5
    decision released August 25, 1987

      Frank X. LoSacco, pro se, the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom, on the brief, were Michael Dannehy, assistant state’s attorney, and Linda L. Yoder, special attorney, for the appellee (state).
   Schaller, J.

After a jury trial, the defendant was convicted of criminal trespass in the first degree in violation of General Statutes § 53a-107. The defendant, who represented himself at trial, has appealed pro se claiming that the trial court erred (1) in submitting the matter to the jury when the evidence was insufficient to establish his guilt beyond a reasonable doubt, (2) in charging the jury improperly, as well as in refusing to charge as requested, and (3) in submitting the matter to the jury when public policy and the habits of the country imply a license or privilege to enter a building lobby. Because we find merit to the defendant’s first claim of error, we need not consider the remaining claims.

At the close of the state’s case, the defendant moved for a judgment of acquittal and a new trial. These motions were subsequently denied by the trial court after the jury rendered its verdict. In the interval, the defendant proceeded to introduce his own evidence. In doing so, the defendant waived review of the sufficiency of the state’s case. We must, therefore, consider his challenge to the sufficiency of evidence based upon the evidence in toto. See State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1983).

When we review the sufficiency of the evidence, we are limited to inquiring “ ‘ “whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ ” State v. Rutan, supra, 444, quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). On review, we do not reweigh the evidence or judge the credibility of witnesses. State v. Banks, 194 Conn. 617, 619, 484 A.2d 444 (1984). The evidence presented at trial must be construed in the light most favorable to sustaining the verdict. State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984); State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). The jury has the right to draw reasonable and logical inferences from the facts proved, as long as they are rational and founded upon the evidence and not arrived at by speculation or conjecture. State v. Little, supra; State v. Scielzo, supra, 196-97.

The defendant’s right to be acquitted unless proved guilty beyond a reasonable doubt of every element of the offense charged is a fundamental constitutional right. State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). In order to convict the defendant of criminal trespass in the first degree, the state had to prove beyond a reasonable doubt the following essential elements of that offense: (1) that the defendant, knowing he was not privileged or licensed to do so, entered or remained in a building; and (2) that the defendant committed that act after an order to leave or not to enter had been personally communicated to him by the owner or other authorized person. General Statutes § 53a-107. The defendant claims, inter alia, that the evidence was insufficient to prove beyond a reasonable doubt that he had been personally ordered by the owner or other authorized person not to enter the building in question. We agree.

Construing the evidence most favorably to sustaining the verdict, the jury could reasonably have found the following facts.

During the spring and summer of 1985, the defendant was engaged in a custody dispute with Debra Young, the mother of their six year old son, Kevin. During that time, Young was dating Daniel Parmelee, whom she later married. On April 5,1985, the defendant went to Parmelee’s residence at the Park Washington apartment complex in Middletown and engaged in a brief discussion with Parmelee concerning Young and Kevin. After this discussion, Parmelee told the defendant that Parmelee did not want him on the premises. It also prompted Parmelee to communicate this desire to the building superintendent, James Calan, and to call the police. Later that evening, Officer Paul Mangini of the Middletown police department was dispatched from police headquarters to the defendant’s residence where he told the defendant not to harass Young or Parmelee and to stay away from the premises at 256 Washington Street, Parmelee’s apartment complex. Mangini never spoke with Young, Parmelee or Calan.

On April 19, 1985, Calan observed a man sitting in a car parked across the street from the apartment complex. He summoned Parmelee, who identified the defendant. The police were then called.

When Officer James Klick of the Middletown police department responded, Calan and Parmelee explained the situation and asked him to warn the defendant that he was not wanted on the property. Klick went over and spoke briefly with the defendant, who then left the area. Klick did not testify at the trial.

On May 18, 1985, Parmelee, while passing in front of his apartment complex in a car, in which Young and Kevin were passengers, observed the defendant in the front exterior doorway of the lobby of the building. The lobby of the building is a room which contains mailboxes, some chairs and two doors. The exterior doorway, in which the defendant was observed, provides access to and from the sidewalk and was kept unlocked and open to the public. The interior door provides access to the various apartments, was kept locked and could only be opened electrically or with a key. At Par-melee’s request, Young and Kevin identified the defendant who was, by the time they observed him, walking on the sidewalk in front of the apartment building. Parmelee called the police shortly thereafter, complaining that the defendant was trespassing. Officer David Gervais responded but, by the time he arrived, the defendant had left the scene. It was this May 18, 1985 incident for which the defendant was subsequently arrested and convicted.

We find the evidence insufficient to sustain the conviction for criminal trespass in the first degree because the state failed to prove that the defendant was ordered personally by the owner of the premises, or other authorized person, not to enter the building.

The jury could reasonably have found that Parmelee personally communicated to the defendant an order not to enter the building. The criminal trespass statute requires, however, that a person enter or remain in a building or other premises after an order to leave or not to enter has been personally communicated to such person “by the owner of the premises or other authorized person.” General Statutes § 53-107 (a) (1). The question to be resolved, then, is whether Parmelee, as a tenant, can be considered an “owner” with respect to his order not to enter the public lobby of the apartment building for purposes of § 53-107. In answering this question, we are mindful that the court must construe the statutory language strictly to avoid imposing criminal liability where none is expressly intended by the legislature. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983).

“ ‘The word “owner” is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. ... It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.’ ” Gill v. Petrazzuoli Brothers, Inc., 10 Conn. App. 22, 27, 521 A.2d 212 (1987), quoting if Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972). Our landlord-tenant law generally presumes that a landlord retains possession, control, and responsibility for all common areas in leased premises, such as the public lobby in this case. Compare General Statutes § 47a-7 (a) (3) (landlord’s duty to “keep all common areas of the premises in a clean and safe condition”) with General Statutes § 47a-ll (b) (tenant’s responsibility to “keep such part of the premises that he occupies and uses as clean and safe as the condition of the premises permit”); see also 49 Am. Jur. 2d, Landlord and Tenant § 806.

Similarly, tort law principles recognize that a landlord, having retained control of common areas, is responsible for their maintenance and repair because he has a right of entry and control of those areas, while no tenant can claim exclusive control of them. Perkel v. Grayson, 119 Conn. 465, 469-70, 177 A. 534 (1935); Fonseca v. Lavado, 28 Conn. Sup. 509, 511, 268 A.2d 415 (1970), cited with approval in State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987); 49 Am. Jur. 2d, supra, § 805. Further, there is nothing in the record before us to suggest that Parmelee’s landlord transferred exclusive control of the lobby area to Parmelee. See Martel v. Malone, 138 Conn. 385, 85 A.2d 246 (1951). There was no evidence that Calan or any other agent of the owner ever conferred such authority upon Parmelee. Therefore, Par-melee, as a tenant in a multi-unit apartment building had no authority to order the defendant not to enter the public lobby of Parmelee’s apartment complex.

The jury could reasonably have found that Calan did authorize Klick to order the defendant not to enter the building. Klick, however, did not testify. Beyond the defendant’s testimony that Klick never issued such an order to him, there is no evidence of the words spoken between Klick and the defendant.

The jury also could reasonably have found that Mangini ordered the defendant not to enter the building. The mere fact that he is a police officer does not, however, under these circumstances, authorize him to do so. See, e.g., State v. Gordon, 437 A.2d 855 (Me. 1981). Mangini testified that he never spoke with Calan and, therefore, was not authorized by him. Mangini was sent to the defendant’s residence by his shift commander. While Calan could have authorized the police department to' issue the order, thus transferring his authority to the officer dispatched, there was no evidence that Calan ever did so. Calan’s testimony indicated only that he called the police, without revealing the content of that communication.

Under General Statutes § 53a-107, the state has the burden of proving that an order was personally communicated by an owner or other authorized person. While establishing that Calan was an authorized person, the state failed to prove that he personally communicated the order. Further, while proving that an order was personally communicated, the state failed to prove that the person issuing the order was authorized.

There is error, the judgment of conviction is set aside and the case is remanded to the trial court with direction to render a judgment of acquittal.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-107. criminal trespass in the first degree: class a misdemeanor, (a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or (2) such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court.”


author: Borden, J.

text:
    State of Connecticut v. Nelson E. McIntosh
    (4898)
    Borden, Bieluch and S. Freedman, Js.
    Argued May 5
    decision released August 25, 1987

      John R. Williams, for the appellant (defendant).

      Robert P. Hanahan, special assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Walter Scanlon, deputy chief assistant state’s attorney, and Patricia King, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. The defendant’s principal claims are that the trial court erred (1) in allowing the state to cross-examine the defendant with evidence of prior acts of misconduct that did not relate to veracity and, additionally, to introduce extrinsic evidence on rebuttal with respect to those acts, (2) in denying the defendant’s motion for judgment of acquittal, and (3) in permitting the state to elicit prior consistent statements from two of its witnesses on direct examination. We find error on the defendant’s first claim.

The jury could reasonably have found the following facts: On September 2, 1982, the victim was working as a prostitute in Waterbury. A man driving a brown Monte Carlo, later identified as the defendant, pulled up alongside the victim and began talking with her. He left the car to approach her, displayed a revolver, and told her to get into the car. The victim complied because she was frightened. They drove one mile to Fulton Park where the defendant stopped the car. He grabbed the victim by the hair and said, “Bitch, you’re going to do what I want [you] to do.” She struggled with the defendant and he hit her a number of times. He forced her to perform oral and vaginal intercourse. The entire incident lasted about thirty minutes and, at the conclusion, the defendant drove off in his car leaving the victim in the park. A motorist stopped to aid her and took her to the police station. On the way, the victim saw her friend, Velma King, another prostitute, speaking with the defendant who was sitting in the Monte Carlo. She yelled to King not to leave with the defendant. The defendant sped off and King accompanied the victim to the police station. The victim identified the defendant during a photographic array and in court.

I

The defendant first claims that the trial court erred in permitting the state to impeach him on collateral matters raised during cross-examination. This claim has two aspects: first, that the trial court erred in allowing the defendant to be questioned on cross-examination about prior acts of misconduct, namely, soliciting prostitutes; and second, that the trial court erred in allowing the state, after the defendant’s denial of the misconduct, to present two of the prostitutes as rebuttal witnesses. We agree.

In order to place this issue in its proper context, it is necessary to examine the relevant testimony, objections and rulings. The victim testified, as the state’s witness, that both prior to and after the sexual assault, she had seen the defendant. Specifically, she testified that she had seen Judy Nordby getting out of the defendant’s car on one occasion and Denise Dearie getting into the car on another. She testified, without objection by defense counsel, that both women were prostitutes.

The defendant testified on his own behalf, and denied committing the sexual assault. On cross-examination, the assistant state’s attorney asked: “And, you occasionally would pick up prostitutes in the car, isn’t that right?” Defense counsel objected, but after a short colloquy withdrew his objection. The defendant responded that he did not pick up prostitutes. The assistant state’s attorney then asked the defendant whether he had “picked up” Denise Dearie and Judy Nordby, respectively.. The defendant answered “No.” The state’s attorney then began to ask: “Didn’t you have sex” at which point defense counsel objected. The trial court sustained the objection on the ground that the defendant had denied ever “picking up” the two women. Thereafter, the assistant state’s attorney asked the defendant whether he “picked up” Debbie Cybulski. Defense counsel objected on the basis that there was no earlier testimony by the victim concerning this person. The objection was overruled and defense counsel duly excepted. The state’s attorney thereupon asked the defendant whether he ever “picked up” Sandra Webb. Once again, the defendant objected and out of the presence of the jury argued that the state was attempting to impeach the defendant by evidence of prior acts of misconduct. Defense counsel argued that patronizing a prostitute, a misdemeanor, is not a basis for impeachment. The court ruled that the questions were permissible. Defense counsel took an exception to the ruling only with respect to questions about Cybulski and Webb, conceding that since the victim had earlier testified that she had seen the defendant in the presence of Nordby and Dearie, the questions asked of the defendant with respect to these two women were relevant to the victim’s identification of him. Thereafter, the defendant was asked whether he “picked up” Cybulski and Webb, respectively, to which he answered “No.”

After both the state and the defendant had completed their cases, the state called as rebuttal witnesses both Nordby and Cybulski. The defendant objected on the ground that the purpose of the testimony was to place before the jury evidence of the defendant’s prior acts of misconduct, namely, patronizing prostitutes, which, even if a permissible subject of inquiry on cross-examination, as a collateral matter could not be proved by the introduction of extrinsic evidence. The defendant argued further that the state was required to accept the answers given by the defendant on cross-examination that he had not “picked up” Nordby or Cybulski. The state argued that the evidence was admissible on the issue of the truthfulness of the defendant’s answer on cross-examination. The trial court overruled the defendant’s objection and allowed the rebuttal witnesses to testify. Thereafter, both Nordby and Cybulski testified that they were prostitutes, and had been approached by the defendant and had gone off with him. Cybulski testified that she met the defendant in a bar and left with him for Fulton Park and remained with him for three and one-half hours. Nordby testified that after the defendant drove up to her in his car she got in and they drove away.

It is beyond dispute that a witness may be impeached by evidence of specific acts of misconduct which relate to veracity, but not by those that merely illustrate general bad behavior. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); C. Tait & J. LaPlante, Connecticut Evidence § 7.22a. The concern, of course, is that a jury will convict the defendant on the basis of his bad character as evidenced by his prior bad acts and not on the basis of the evidence adduced at trial on the specific crime with which he is charged. Where, however, the collateral bad acts relate to veracity, the defendant is subject to cross-examination concerning them. State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985); State v. Orsini, 187 Conn. 264, 268, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). “Whether particular acts of misconduct are relevant to lack of veracity depends on whether they have a logical tendency to indicate a lack of veracity. . . . This question of relevancy is, generally speaking, not within the discretion of the court. . . . Thus, unless particular acts of misconduct are indicative of a lack of veracity, it is error to permit cross-examination concerning them, however much they may be indicative of bad moral character.” (Citations omitted.) Vogel v. Sylvester, supra, 675-76.

It has been recognized that a witness may be asked whether he “was ever involved in stealing”; State v. Martin, supra, 87; whether he has cheated on his income taxes; State v. Sharpe, 195 Conn. 651, 657-58, 491 A.2d 345 (1985); and whether he used aliases or faked his death. State v. Dolphin, 195 Conn. 444, 458-459, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). These acts of misconduct logically tend to indicate a lack of veracity. The act of soliciting a prostitute does not. Our Supreme Court has specifically recognized that a witness’ sexual conduct does not reflect upon his or her credibility. State v. Mastropetre, 175 Conn. 512, 518-19, 400 A.2d 276 (1978).

In light of our conclusion that soliciting a prostitute is not misconduct which relates to veracity, absent its relevancy to a substantive issue in the case; State v. Perry, supra, 521; it was error for the trial court to permit the cross-examination in question. The state does not argue that the evidence was offered on a substantive issue, nor could it since the trial court had already ruled such evidence inadmissible for that purpose. We conclude, therefore, that it was improper to permit the state to ask the defendant whether he “picked up” Cybulski or Webb.

Having concluded that there was error in the state’s cross-examination of the defendant, ordinarily we would next inquire whether it was rendered harmless, especially in light of the defendant’s concession that two functionally equivalent questions were proper. We need not consider the issue of harmlessness, however, since we conclude that there was reversible error on the second part of the defendant’s claim, namely, that the introduction of extrinsic evidence on this collateral matter was improper.

As we have already noted, a witness may be impeached with prior acts of misconduct which relate to veracity. Martyn v. Donlin, supra, 408; C. Tait & J. LaPlante, supra, § 7.22a. If the witness denies the misconduct, the examiner must take the answer and is precluded from offering extrinsic evidence of such conduct, unless it bears on a substantive issue. State v. Horton, supra, 381. “ ‘[I]f the witness stands his ground and denies the alleged misconduct, the examiner must “take his answer” not that he may not cross-examine to extract an admission, but,in the sense that he may not call other witnesses to prove the discrediting acts.’ McCormick, [Evidence (3d Ed.)] § 42.” Id., 380.

The state, once again, does not claim that the extrinsic evidence related to a substantive issue in the case. It argues, instead, that the evidence was introduced on the narrow issue of whether the defendant testified falsely when he denied picking up prostitutes. Based on the principles outlined above, it was error for the trial court to allow the state to go beyond the defendant’s answer and to introduce extrinsic evidence on the collateral matter.

This does not end our inquiry, however. We must now determine whether the error was harmful to the defendant. State v. Horton, supra, 381. Where, as here, the error is not of constitutional dimension, the defendant bears the burden of demonstrating that the “erroneous actions of the court likely affected the result.” Id., 382.

We have reviewed the transcript in this case, and conclude that the introduction of the extrinsic evidence of the defendant’s prior act of patronizing a prostitute probably affected the result. We reach this conclusion because the evidence in the case was such that the credibility of the witnesses was of utmost importance. The jury was presented with two versions of the events, namely, the victim’s, as corroborated by her constancy of accusation witnesses, and the defendant’s. There were no eyewitnesses to the assault. Nor was there any corroborating evidence. Thé defendant presented an alibi defense, claiming to have been in Washington, D.C., with his wife at the time of the sexual assault. Both the defendant, his wife and various relatives testified in this regard. The evidence presented by Cybulski and Webb that the defendant had solicited them was, therefore, very damaging because of its tendency to convince the jury that the defendant had a bad character since he patronized prostitutes, and therefore probably committed the sexual assault. Since the state’s case depended on the jury believing the victim’s testimony and, thus, disbelieving, the defendant’s testimony, it was likely that the erroneous admission of the extrinsic rebuttal evidence affected the result.

II

The defendant also claims that the trial court erred when it failed to grant the defendant’s motion for judgment of acquittal. We disagree.

The defendant was convicted of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. That statute provides in relevant part: “A person is guilty of sexual assault in the first degree with a deadly weapon when such person commits sexual assault in the first degree . . . and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a deadly weapon.” (Emphasis added.) The crux of the defendant’s argument is that the state failed to prove that the defendant used a deadly weapon at Fulton Park in furtherance of the sexual assault.

The defendant does not contest that he threatened the use of, displayed or represented that he possessed a deadly weapon. The defendant argues, however, that because the revolver was not brandished in the park, the state failed to meet its burden of proof. We disagree.

The defendant’s argument would require us to accept the proposition that, under § 53a-70a, the state must prove that the defendant threatened the use or displayed or represented by his words or conduct that he possessed a deadly weapon while the sexual assault actually took place or immediately prior thereto. We reject this proposition, and conclude that where the defendant, within a span of thirty minutes, forces a person at gunpoint into a vehicle, and transports her one mile to a location where he sexually assaults her, a jury could conclude, on the basis of the evidence and all the reasonable inferences flowing therefrom; State v. Liscio, 9 Conn. App. 121, 125, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1208 (1987); that the defendant threatened the use or displayed by his words or conduct that he possessed a deadly weapon “in the commission of” a sexual assault.

Ill

The defendant also claims that the trial court erroneously allowed the state to elicit prior consistent statements from two witnesses, Velma King and Officer Beth A. Martell, respectively, during their direct examination. We disagree.

A

King testified on direct examination that she was about to get into a car with a person who had offered her twenty-five dollars for her sexual services when the victim ran toward her yelling, “Don’t go out with him. He just raped me.” She testified that as the car sped off she observed that the license plate number was 621136 and the plates were white with blue or black letters. She described the driver as a black man with an afro hairstyle and a heavy build, who was wearing black framed glasses. King testified that she accompanied the victim to the police station. All this testimony was elicited without objection.

The state’s attorney thereupon asked King whether she talked with anyone at the station and, if so, what she said. Defense counsel objected on the basis that the testimony was being elicited in an attempt to show a prior consistent statement where the witness had not yet been impeached by an inconsistent statement. The trial court nonetheless allowed the question. King responded that she spoke with some police officers and “told them the color of the car, what the guy looked like and the license plate.” The defendant claims on appeal that it was error for the trial court to admit the prior consistent out-of-court statement.

We note first that the general rule is that the prior consistent statements of a witness are inadmissible at trial. State v. Anonymous (83-FG), 190 Conn. 715, 728, 463 A.2d 533 (1983); State v. Dolphin, 178 Conn. 564, 568, 424 A.2d 266 (1979). “Where the prior consistent statement becomes admissible, it may not be used as substantive evidence of the facts contained therein, but only to rehabilitate the credibility of the witness which has been attacked. ” (Emphasis added.) State v. Anonymous (83-FG), supra. The rationale upon which this rule is based is that the witness’ story “ ‘is not made more probable or more trustworthy by any number of repetitions of it.’ ” State v. Dolphin, supra, 569.

Under the circumstances of this case, we view King’s statement of her conversation with the police officers as no more than a statement in which she provided routine and general information pertinent to a criminal investigation. King’s answer to the question was so totally lacking in detail that it did not constitute a consistent statement which was likely to implicate her credibility in any way. King simply stated that she described the color of the car, the license plate number and the driver. Had she gone into greater detail, as in her earlier testimony, the issue of an erroneous admission of a prior consistent statement would be squarely before this court.

B

The second aspect of the defendant’s claim is that the trial court exceeded the permissible scope of the constancy of accusation doctrine when it permitted Martell, over the defendant’s objection, to relate the description of the assailant’s car given to her by the victim, including a statement of the license plate number. The defendant failed to take an exception to the trial court’s ruling in this regard and we therefore decline to review the claim. See Practice Book §§ 288, 4063 (d) (3); State v. Siemon, 172 Conn. 19, 20, 372 A.2d 140 (1976); State v. Hawkins, 162 Conn. 514, 516-17, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249 (1972).

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       We note that in the context of the evidence adduced at this trial and in light of the nature of the charges, when the state asked whether the defendant “picked up” certain people who the jury already knew were prostitutes, it was a rational inference that the state was asking the defendant about prior acts of soliciting prostitutes.

       The defendant also argued that the cross-examination constituted a violation of a prior court ruling. The state had filed a motion to consolidate other files pending against the defendant for sexual assault. The state also filed a motion in limine to offer evidence of other crimes involving these sexual assaults, on the issue of identity. Some of the pending sexual assault charges were against women about whom the state had questioned the defendant on cross-examination. Both these motions were denied. The defendant claimed that the state’s attempt to impeach the defendant by his prior association with prostitutes was in violation of this order of the court. In view of our conclusion, we need not review this claim.

       Despite our decision on the defendant’s first claim which requires a new trial on the sexual assault charge, we must review the defendant’s claim of insufficient evidence since, if he prevailed, he would be entitled to a judgment of acquittal.

       We consider this claim of the defendant because it is likely to recur on retrial. The defendant raises two other claims of error. Because they are not likely to recur on retrial, we do not review them.

       Despite the defendant’s suggestion otherwise in his brief, King did not repeat the license plate number a second time when relating what she told the police officers.