author:
Foti, J.
      Bieluch, J.,

text:
    U.S. Vision, Inc., et al. v. Board of Examiners for Opticians
    (5563)
    Bieluch, Stoughton and Foti, Js.

      Argued January 19—
    decision released July 19, 1988

      Stewart I. Edelstein, for the appellants (plaintiffs).

      Maite Barainca, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment of the trial court dismissing its appeal from a decision rendered by the board of examiners for opticians (board). The plaintiff claims that the trial court erred (1) in finding that General Statutes § 19a-17 (a) (6) permits the imposition of a cumulative civil penalty in excess of $1000, (2) in finding that a vacancy on the three member board did not invalidate a decision by the remaining two members, and (3) in sustaining the board’s decision which found U.S. Vision, Inc., in violation of General Statutes § 20-153. We find no error.

The following facts are relevant to this appeal. The board of examiners for opticians was presented with an eleven count statement of charges by the department of health services. The statement of charges alleged that the plaintiff was operating seven “optical shops” without licensed opticians on the premises. In particular, the statement of charges alleged that on eight separate occasions the plaintiff operated an optical shop without the personal and direct supervision of a licensed optician. Seven different establishments were cited, each of these shops operated under separate permits. The charges also alleged that on two occasions an unlicensed employee performed regulated activities, including the measuring of the pupillary distance of eyes, without a licensed optician on the premises.

The department of health moved for a summary suspension of the plaintiffs permits to operate optical shops. The board denied the motion for summary suspension, finding insufficient evidence of a clear and immediate danger to warrant the suspension of the permits prior to a full hearing.

A hearing on the statement of charges was held on April 29, 1985. On August 12, 1985, the board issued its decision finding that U.S. Vision, Inc., had violated General Statutes §§ 20-153 and 20-154 on ten separate counts, including two counts for allowing an apprentice optician to provide optical services without the supervision of a licensed optician. The board imposed a $500 fine for each violation and ordered U.S. Vision, Inc., to discontinue the practice of operating optical shops without a licensed optician on the premises. The board, however, found insufficient evidence to conclude that individual licensed opticians were guilty of any violation. Further, it dismissed one count alleging a course of conduct with the intent to violate §§ 20-153 and 20-154.

The plaintiff conceded at the administrative hearing that the apprentice’s conduct was in violation of § 20-153 and that, although she had been told she should not fit, measure, adjust or put glasses on a client’s face, or dispense glasses when a licensed optician was not on the premises, she did in fact perform optical services without the supervision of a licensed optician. The board found that the apprentice made visual measurements, indicated what style and size frame would be appropriate for a customer’s face and measured the pupillary distance of eyes. The board also found that on a separate occasion the apprentice fitted a customer with eyeglasses and made adjustments to the frames. The plaintiff also concedes the board’s finding that on eight separate occasions a store was open for business without a licensed optician present.

The plaintiff first claims that the board erred in assessing multiple fines against it. In particular, the plaintiff contends that General Statutes § 19a-17 (a) (6) limits the board’s authority to assess a cumulative civil penalty to $1000. We disagree. Section 19a-17 (a) (6) provides that the board has the authority to “assess a civil penalty of up to one thousand dollars” for any violation of chapter 381. We note at the outset that the legislature has chosen to call this sanction a “civil penalty.” In applying the statutory language of § 19a-17 (a) (6) to the facts presented by this case, we must give the plain language of the statute its logical meaning. Sherman v. Planning & Zoning Board of Appeals, 13 Conn. App. 699, 706-707, 539 A.2d 588 (1988); Stop & Shop Cos. v. East Haven, 13 Conn. App. 393, 399, 536 A.2d 991 (1988). It is undisputed that the health department could have brought ten separate actions for the ten separate violations of General Statutes §§ 20-153 and 20-154 and that the board has the authority to impose ten separate civil penalties of up to $1000 each, constituting a cumulative civil penalty far in excess of the penalty imposed in this case. The defendant contends, however, that because the health department brought the ten separate counts in a single statement of charges, the $1000 limitation applies, not to each separate violation, but to the entire statement of charges. The interpretation of § 19a-17 (a) (6) proffered by the plaintiff is inconsistent with the plain language of the statute.

If we adopted the plaintiffs construction of the statute, the health department would remain free to bring separate actions to achieve a result the plaintiff contends it has no authority to achieve in a single action. Here, the health department could have brought ten separate actions resulting in an unnecessary burden on the plaintiff and the judicial system. The principles of judicial economy; Sauter v. Sauter, 4 Conn. App. 581, 584-85, 495 A.2d 1116 (1985); and statutory construction; Stop & Shop Cos. v. East Haven, supra; lead to the conclusion that the legislature intended a single result whether the health department brings one action or ten separate actions for precisely the same conduct. We conclude, therefore, that § 19a-17 (a) (6) is a limitation on the civil penalty which the board may impose for each violation of the chapter, but does not affect the cumulative civil penalty the board may impose for separate violations under the chapter.

Since the penalty for each separate violation was less than the statutory maximum penalty, the court was not in error in finding that the board had authority to assess a penalty of $500 for each violation of the statute, totaling $5000.

The plaintiff next claims that because there was one vacancy on the three member board, the remaining two members were not a legally constituted body and, since no board could legally have existed at the time of the hearing or at the time of the decision, the order is void. The plaintiff argues that the use of “shall” in General Statutes § 20-139a mandates that a three member board be convened in order that the board be vested with the powers set forth in General Statutes §§ 20-138 et seq. We do not agree.

General Statutes § 20-139a provides that the board be comprised of three members, two opticians and one member of the general public, all of whom are appointed by the Governor. A vacancy caused by the resignation of one of the optician members had not been filled at the time of the proceedings. It is undisputed that the remaining two members participated in and concurred in the result which is the subject of this appeal.

The plaintiffs position that a vacancy on an administrative board created by a resignation deprives the board of its statutory authority would lead to an unreasonable result not intended by the legislature. “The rule is that all bodies charged with the performances of public duties continue to function though a vacancy exists.” Brein v. Eclectic Examining Board, 103 Conn. 65, 87, 130 A. 289 (1925). A board may act as long as there exists a quorum comprising a majority of all the members who have been appointed and have not been disqualified. Liquified Petroleum Gas Commission v. E. R. Kiper Gas Corporation, 229 La. 640, 647, 86 So. 2d 518 (1956). There is no language in General Statutes § 20-139a that requires the board to act unanimously or that requires any specific number of members to act. Two members of the board constitute a majority and have all of the authority that is granted to a three member board. General Statutes § 20-139a (d) grants the board the power to “hear and decide matters concerning suspension or revocation of license” and to “impose sanctions where appropriate.” The general intent of the legislature that only a majority is needed to render a decision is supported by General Statutes §§ 1-1 (h) and 4-179 which similarly state that a majority of a board is sufficient for its legal functioning. We, therefore, conclude that the two member board was vested with full authority to impose sanctions under § 20-153.

The plaintiffs final claim is that the court erred in concluding that the board correctly interpreted General Statutes § 20-153. The relevant portion of the statute provides: “The department may grant annually ... an optical permit to any optical establishment . . . conducted under the personal and direct supervision of a licensed optician, for permission to sell, dispense or supply to the ultimate wearer optical aids to vision, instruments, appliances, eyeglasses, spectacles and other kindred products.” The board .concluded that the language of the statute requires that an optician be on the premises “at all times.” The board also concluded that a practical reason for the requirement is that there is a high probability that when an “optical shop is open, a customer will have services performed which should be done under the direct supervision of the licensed optician even when no licensed optician is in fact on the premises.”

Statutes must be interpreted to give meaning to their plain language and to provide a unified body of law. Stop & Shop Cos. v. East Haven, supra, 398. An administrative agency’s interpretation of a statute is ordinarily an aid to its construction and should be accorded great weight. Local 1186 v. Board of Education, 182 Conn. 93, 105, 438 A.2d 12 (1980). This is ordinarily true where the statutory language is ambiguous and the “governmental agency’s time-tested interpretation is'reasonable . . . .’ ” Anderson v. Ludgin, 175 Conn. 545, 555-56, 400 A.2d 712 (1978). “Like courts, ‘administrative agencies must necessarily interpret statutes which are made for their guidance. To rule otherwise would be to ignore the subtle and intricate interaction of law and fact. It is inherent in our judicial system of dispute resolution that the interpretation of statutes, like the development of the common law, grows out of the filtering of a set of facts through the law, as seen by the administrator or judge.’ Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356-57, 377 A.2d 1099 (1977).” Eagle Hill Corporation v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 76, 477 A.2d 660 (1984).

The plaintiff contends, in this appeal from the trial court’s judgment sustaining the board’s interpretation of $ 20-153, that the requirement that optical establishments be conducted under the direct supervision of a licensed optician is limited by the type of business that is actually conducted in the store. The plaintiff argues that the language in § 20-153, “sell, dispense or supply [eyeglasses] to the ultimate wearer optical aids,” determines the conduct that must be supervised by a licensed optician and “such supervision is not required in the absence of such activity.” We cannot agree with this interpretation.

The plaintiff’s analysis fails to include critical language immediately preceding the language it relies upon for its proffered construction of the statute. The relevant portion of the statute provides “for permission to sell, dispense or supply to the ultimate wearer optical aids to vision, instruments, appliances, eyeglasses, spectacles and other kindred products.” Contrary to the construction proposed by the plaintiff, the described conduct defines “optical establishment, office, department or store.”

Thus, giving all the words in the statute their logical and plain meaning; Sherman v. Planning & Zoning Board of Appeals, supra, 707; and reading § 20-153 as a unified whole, we conclude that an optical establishment is any enterprise which has permission to carry on any of the services described in the statute and that the direct supervision of a licensed optician is required for the operation of such enterprises, whether the establishment is actually carrying on those services or not.

This conclusion is consistent with the public purpose expressed by the legislature when it enacted these statutes. “The provisions of this chapter [381] are enacted in the exercise of police powers of the state, and the purposes thereof generally are to protect public health, welfare and safety. . . .” General Statutes § 20-139. In enacting regulations that require a qualified person to be present on the business premises, the legislature seeks to assure the public that the qualified person shall be in a position where he can exercise direct and immediate control over the conduct of the regulated business. Loglisci v. Liquor Control Commission, 123 Conn. 31, 38, 192 A. 260 (1937). We note that an optical establishment is required to display its permit in a conspicuous place at all times. General Statutes § 20-157. The message that this permit communicates to the public is that a qualified person is on the premises. Allowing these establishments to choose, arbitrarily, when they will have a licensed optician on the premises would unjustifiably place the burden on the customer to determine whether a licensed optician is, in fact, on the premises. The plaintiffs construction of § 20-153 would also place an unwarranted burden on unlicensed employees when customers, seeking regulated services, enter such establishments at times when no licensed optician is on the premises.

Finally, we note that in interpreting § 20-153, great deference must be accorded the construction given to the statute by the board, which is charged with enforcement of that statute and the regulations. Pergament Norwalk Corporation v. Kaimowitz, 4 Conn. App. 633, 637, 496 A.2d 217 (1985). The board concluded that the express language of § 20-153 requires that “once a store is open for business and given a permit [the store] has to be under the direct and personal supervision of a licensed optician at all times.”

Although it may be technically feasible to operate an optical establishment without actually conducting regulated services, the facts of this case illustrate the practical impossibility of walking such a fine line. Here, on two occasions, an unlicensed employee dispensed regulated services to health department investigators while there was no licensed optician on the premises. In fact, the plaintiff concedes that it was its practice to operate its optical stores one day of each week without a licensed optician on the premises.

The operator of a regulated business is not entitled to decide for himself when he will engage in such activity. See Griswold v. Kelly, 140 Conn. 582, 584-85, 102 A.2d 349 (1954). If we were to construe § 20-153 as the plaintiff proposes, there would be no obstacle to operating optical establishments five days each week without a licensed optician on the premises. We cannot conclude that the legislature intended such a bizarre and irrational result when it enacted § 20-153. Tucker v. Board of Education, 4 Conn. App. 87, 92, 492 A.2d 839 (1985). Nor can we conclude that the legislature intended that the health department would be required to police such an unwieldy regime.

Finally, we conclude, after a review of the record and briefs, that the court did not abuse its discretion in dismissing this appeal.

There is no error.

In this opinion Stoughton, J. concurred.

Bieluch, J.,

concurring and dissenting. I agree with the rulings of the majority, except as to their conclusion that “[sjince the penalty for each separate violation was less than the statutory maximum penalty, the court was not in error in finding that the board had authority to assess a penalty of $500 for each violation of the statute, totaling $5000.” (Emphasis added.) The majority opinion cites no authority in support of this ruling.

Pursuant to its authority under General Statutes (Rev. to 1985) § 19a-17, the board made the following order: “(1) That U.S. Vision be fined five hundred dollars for each of ten separate counts of violations of Connecticut General Statutes § 20-153 and § 20-154. A check for $5000 should be made payable to the State of Connecticut and be submitted within 30 days.” (Emphasis added.) The administrative order of the board, despite limitations under § 19a-17, by its very terms imposed separate criminal “fines” upon U.S. Vision without the attendant due process safeguards and constitutional protections. The board did not impose a civil “penalty for each separate violation,” as the majority states. This action of the board was ultra vires and imposed criminal sanctions, rather than an authorized civil penalty, upon the named plaintiff.

In its memorandum of decision, the board relied specifically upon the following statutory provisions for the imposition of its penalty upon U.S. Vision: “17. Connecticut General Statutes § 20-154 provides in pertinent part that: The certificate of registration, permit or license of any optician or of any optical permittee may be revoked, suspended or annulled or any action taken under section 19a-17 upon decision after notice and hearing by the board for any of the following reasons: . . . violation of any provision of this chapter or any regulation adopted hereunder .... 18. Connecticut General Statutes § 20-153 provides in pertinent part that: The department may grant annually, upon the filing of an application as required by it, an optical permit to any optical establishment, office, department or store conducted under the personal and direct supervision of a licensed optician, for permission to sell, dispense or supply to the ultimate wearer optical aids to vision, instruments, appliances, eyeglasses, spectacles and other kindred products.” (Emphasis in original.)

General Statutes § 19a-17 provides that the board “may take any of the following [disciplinary] actions, singly or in combination . . . upon finding the existence of good cause: (1) Revoke a practitioner’s license or permit; (2) Suspend a practitioner’s license or permit; (3) Censure a practitioner or permittee; (4) Issue a letter of reprimand to a practitioner or permittee; (5) Place a practitioner or permittee on probationary status . . . [or] (6) Assess a civil penalty of up to one thousand dollars . . . .” Relevant to this discussion is the criminal penalty for a violation of §§ 20-153 and 20-154 provided in § 20-161 as follows: “Any person who violates any provison of this chapter, for the violation of which no other penalty has been provided, shall be fined not more than five hundred dollars or imprisoned not more than five years or both. For purposes of this section each instance of patient contact or consultation which is in violation of any provision of this section shall constitute a separate offense. . . .” (Emphasis added.)

The issue under consideration is controlled by the specific and contrasting definitions adopted by the legislature as to sanctions for the optical permit violations under consideration on this appeal. The legislature’s penalty distinction would be meaningless if the civil penalty provided § 19a-17 (a) (6) were to be a criminal fine as allowed by § 20-161 for separate offenses and as imposed by the board in this case. The legislative intent in its distinction between the civil penalty of § 19a-17 (a) (6), and the criminal penalty of a fine or imprisonment, or both, and for multiple offenses, under § 20-161, is evident in the clear language of these statutory provisions. A civil penalty is remedial in nature, while a criminal penalty is penal. For this reason, the imposition of a criminal penalty mandates the safeguards of due process and other constitutional protections. An administrative agency, such as the board here, may impose civil penalties only. Criminal penalties are the exclusive province of a court of law.

“The term ‘penalty’ in its broadest sense includes all punishment of whatever kind. 13 Amer. & Eng. Ency. of Law, p. 53. A fine is always a penalty, but a penalty may not always be a fine. United States v. Nash, 111 Fed. Rep. 525. A fine is a ‘pecuniary punishment imposed by a lawful tribunal upon a person convicted of crime or misdemeanor.’ 2 Bouvier Law Dictionary (3d Rev.) 1225; Southern Express Co. v. Commonwealth ex rel. Walker, 92 Va. 59, 63, 22 S.E. 809; Lancaster v. Richardson, 4 Lans. (N.Y.) 136, 140.” Bankers Trust Co. v. Blodgett, 96 Conn. 361, 368, 114 A. 104 (1921); Second National Bank of New Haven v. Loftus, 121 Conn. 454, 459, 185 A. 423 (1936).

The plaintiff’s conduct considered by the board under the provision of § 19a-17 (a) (6) is not a crime punishable in a criminal proceeding in a court of law. The constitutional protections applicable to criminal prosecutions do not attach to the imposition of a civil penalty under § 19a-17 (a) (6). The statute’s provisions for disciplinary action by the board allow for civil administrative sanctions of a remedial character in support of the enforcement of § 20-154, which provides that “[t]he certificate of registration, permit or license of any optician or of any optical permittee may be revoked, suspended or annulled or any action taken under section 19a-17 upon decision after notice and hearing by the board for any of the following reasons: . . . violation of any provision of this chapter or any regulation adopted hereunder. . . .” Supplemental to such civil sanctions, criminal prosecution is available under the provisions of § 20-161 for a violation of any “provision of this chapter, for the violation of which no other penalty has been provided.” Our concern in this appeal relates solely to the legality of the board’s administrative civil penalty under § 19a-17 (a) (6).

The board acted illegally when it ordered “[tjhat U.S. Vision be fined five hundred dollars ($500) for each of ten separate counts of violations of Connecticut General Statutes § 20-153 and § 20-154” for a total of $5000. (Emphasis added.) Unlike the criminal penalty prescribed in § 20-161 which permits multiple penalties in its provision that “[f]or purposes of this section each instance of patient contact or consultation which is in violation of any provision of this section shall constitute a separate offense,” § 19a-17 (a) (6) expressly and limitedly authorizes the assessment of a “civil penalty of up to one thousand dollars.” (Emphasis added.) The multiple “assessment” of a civil penalty or “fine,” as was imposed by the board here, is illegal for want of legislative authorization. By the terms of § 19a-17, the legislature intended to punish only the course of action which the alleged individual acts under administrative review constitute. See State v. Lytell, 206 Conn. 657, 665-66, 539 A.2d 133 (1988).

This interpretation of § 19a-17 is supported by the 1986 amendment to that statute. Public Acts 1986, No. 86-365, § 2, provides in pertinent part: “(a) Each board or commission . . . may take any of the following actions, singly or in combination, based on conduct WHICH OCCURRED PRIOR OR SUBSEQUENT TO THE ISSUANCE OF A permit OR A license upon finding the existence of good cause . . . .” While the amended version of § 19a-17 is not controlling in this case, it is significant. This specific language demonstrates the legislative intent that § 19a-17 proscribe and punish a course of ongoing conduct, rather than separate actions' or events in the course of that behavior. “It is an accepted canon of statutory construction that ‘[a] subsequent legislative act may throw light on the legislative intent of a former related act. General Realty Improvement Co. v. New Haven, 133 Conn. 238, 242, 50 A.2d 59 [1946].’ Hartford v. Suffield, 137 Conn. 341, 346, 77 A.2d 760 (1950).” Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 630 n.5, 495 A.2d 1127 (1985); see also Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 541, 494 A.2d 555 (1985).

Multiple fines may be imposed for multiple acts only in a criminal prosecution as expressly allowed under § 20-161. The board was limited in its civil disciplinary sanctions to the express terms of § 19a-17, which does not permit multiple “fines” for each act established on administrative review.

To this extent I disagree with the majority.

       U.S. Vision, Inc., doing business as Leased Optical and doing business as Wall and Oachs, was the named defendant in the statement of charges. Also cited as defendants were five licensed opticians who managed the separate stores. The board found that the department failed to present any evidence which would support a judgment against the individual licensed opticians for the alleged violations of General Statutes § 20-153. The charges against the individual opticians were not appealed to the Superior Court and are, therefore, not on appeal to this court. The use of the term plaintiff in this opinion refers to the named plaintiff, U.S. Vision, Inc.

       General Statutes § 19a-17 (a) (6) (Formerly Sec. 19-4s) provides in relevant part: “Each board or commission established under chapters 369 to 375, inclusive, 378 to 381, inclusive, and 383 to 388, inclusive, and the department of health services with respect to professions under its jurisdiction which have no board or commission may take any of the following actions, singly or in combination, based on conduct which occurred prior or subsequent to the issuance of a permit or a license upon finding the existence of good cause: . . . Assess a civil penalty of up to one thousand dollars }>

       General Statutes (Rev. to 1983) § 20-153 provides: “The department may grant annually, upon the filing of an application as required by it, an optical permit to any optical establishment, office, department or store conducted under the personal and direct supervision of a licensed optician, for permission to sell, dispense or supply to the ultimate wearer optical aids to vision, instruments, appliances, eyeglasses, spectacles and other kindred products. Holders of such an optical permit shall be permitted to use the term ‘optician’ or any of its synonyms. No optical permit shall be issued to any person, firm or corporation owning, managing or conducting any optical establishment, department, store, office or place of business and employing any person lawfully licensed to prescribe optical glasses from given prescription formulas, unless such person is also licensed as a licensed optician, except as provided in section 20-162. The quality of optical lenses, spectacles, eyeglasses, optical appliances or instruments and other aids to vision and kindred products of optical glasses shall meet whichever of the following standards prescribed by the American National Standards Institute may be applicable: American National Standards Institute Z.80.1-1972 ‘requirements for first quality prescription ophthalmic lenses’ which standard shall apply to first-quality prescription ophthalmic lenses in edged or assembled form, white, colorless or tinted, single-vision or multifocal, plastic, laminated, impact-resistance-treated or untreated glass lenses, but shall not apply to blended multifocals, and American National Standards Institute Z.87.1-1968 ‘practice for occupational and educational eye and face protection’ which standard shall apply to all occupational and educational operations and processes, excluding those relating to x-rays, gamma rays, high-energy particulate radiations, lasers, or masers; the commissioner of health services, with advice and assistance from the board shall make reasonable regulations so that the public may not be misled in the puchase or acquisition of the same."

       General Statutes (Rev. to 1983) § 20-154 provides: “The commissioner of health services, with advice and assistance from said board, may make regulations concerning the licensing of any optician, the granting of any permit to any optical department or the certification of any licensed optician, and the suspension or revocation of any such license or permit, or with reference to the conduct of any such licensee or permittee and the manner in which any such licensed optical department is conducted. Any license to practice as a licensed optician or to conduct any optical department may be suspended or revoked or reissued by said board. The certificate of registration, permit or license of any optician or of any optical permittee may be revoked, suspended or annulled or any action taken under section 19a-17 upon decision after notice and hearing by the board for any of the following reasons: Fraudulent, dishonest, illegal or incompetent or negligent conduct of his business as such licensee or permittee; aiding or abetting any unlicensed person whose license has been suspended or revoked, or any optical permittee whose permit has been suspended or revoked in the conduct of an optician’s establishment, office or store; violation of any provision of this chapter or any regulation adopted hereunder; presentation to the department of any diploma, license or certificate, irregularly or fraudulently obtained or from any unrecognized or irregular college or state commission, or obtained by the practice of any fraud or deception; physical or mental illness, emotional disorder or loss of motor skill, including but not limited to, deterioration through the aging process; abuse or excessive use of drugs, including alcohol, narcotics or chemicals. The commissioner of health services may order a license holder to submit to a reasonable physical or mental examination if his physical or mental capacity to practice safely is the subject of an investigation. Said commissioner may petition the superior court for the judicial district of Hartford-New Britain to enforce such order or any action taken pursuant to section 19a-17. The violation of any of the provisions of this chapter by any unlicensed employee in the employ of any of the licensees or permittees, with the knowledge of his employer, shall be deemed to be a violation thereof by his employer; and continued violation thereof by such an unlicensed employee shall be deemed to be, prima facie, with the knowledge of such employer.”

       Eight of the vioiations charged the operation of shops without a licensed optician present. Six of these violations involved six different establishments operated under separate permits. Four violations involved a single separate establishment; these violations included the operation of that establishment without a licensed optician on the premises on two occasions and two violations for the dispensing of regulated services by an unlicensed employee while no licensed optician was present to supervise the establishment.

       General Statutes § 20-139a provides: “(a) There shall be within the department of health services a Connecticut board of examiners for opticians. Said board shall consist of three members appointed by the governor, subject to the provisions of section 4-9a, as follows: Two practicing licensed opticians in good professional standing who reside in this state and one public member. The governor shall appoint a chairman from among such members.
      “(b) Said board shall meet at least once during each calendar quarter and at such other times as the chairman deems necessary. Special meetings shall be held on the request of a majority of the board after notice in accordance with the provisions of section 1-21. Members shall not be compensated for their services but shall be reimbursed for necessary expenses incurred in the performance of their duties. Any member who fails to attend three consecutive meetings or who fails to attend fifty per cent of all meetings held during any calendar year shall be deemed to have resigned from office. Minutes of all meetings shall be recorded by the board. No members shall participate in the affairs of the board during the pendency of the disciplinary proceedings by the board against such member. No professional member shall be an elected or appointed officer of a professional society of opticians or have been such an officer during the year immediately preceding his appointment.
      “(c) The commissioner of health services, with advice and assistance from the board, may make and enforce such regulations as the commissioner deems necessary to maintain proper professional and ethical standards for opticians. The board may revoke or suspend licenses for cause.
      “(d) The board of examiners for opticians shall (1) hear and decide matters concerning suspension or revocation of licensure, (2) adjudicate complaints filed against practitioners licensed under this chapter and (3) impose sanctions where appropriate.”

       General Statutes § 1-1 provides in relevant part: “(a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. . . .
      “(h) Words purporting to give a joint authority to several persons shall be construed as giving authority to a majority of them.”

       General Statutes § 4-179 provides: “When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section.”

       The defendant has briefed this claim as three separate issues; we will consider it as one claim of error.

       Section 20-141-7 of the regulations of Connecticut state agencies, defines “kindred products” as “complete eyeglasses principally worn as an aid to vision and sold as optical stock-in-trade article of merchandise


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Mario Saraceno
    (5289)
    Spallone, Bieluch and Norcott, Js.

      Argued February 11—
    decision released July 19, 1988

      Joseph A. Hourihan, with whom, on the brief, was Leslie Sheppard, for the appellant (defendant).

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, was Timothy J. Liston, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of sexual assault in the second degree, General Statutes § 53a-71 (a) (1) and two counts of risk of injury to a minor, General Statutes § 53-21. We find error in part.

The defendant claims that the trial court erred (1) by failing to grant his motion to separate into individual counts each allegation of a criminal offense, (2) by failing to grant his motion to sever, (3) by failing to grant his repeated requests for a bill of particulars sufficiently specific to enable him to prepare his defense, (4) by failing to grant his motion to dismiss those counts which were beyond the statute of limitations, (5) in limiting his use of the victim’s professionally prepared mental health records, (6) by admitting “constancy of accusation” testimony, (7) by allowing the victim to testify concerning the defendant’s alleged touching of a third party, (8) by admitting into evidence statements of a rebuttal witness that she would not leave her children alone with the defendant, and (9) by failing to consider the defendant’s motion for a new trial based on newly discovered evidence.

The following facts are relevant to this appeal. In February, 1985, the complainant, then a ten year old girl, reported having been sexually assaulted by the defendant numerous times over the previous five years. Later that month, a warrant issued for the arrest of the defendant and, in March, 1986, he was brought to trial, before a jury, on an eleven count information. At trial, the victim testified that between August, 1980, and August, 1988, she was compelled by the defendant to engage in numerous acts of fellatio at the defendant’s home in East Hampton, in a motor vehicle in various locations in East Hampton and in a motor vehicle near the banks of the Connecticut River in Cromwell. The jury returned with a verdict of guilty on the second, third, fifth, sixth and ninth counts. The defendant was acquitted of counts one, four, seven, eight, ten and eleven. These verdicts were accepted by the court on April 25,1986. On June 9,1986, the defendant filed a motion for a new trial, alleging the existence of newly discovered evidence. The motion was denied on June 12, 1986, and this appeal followed.

I

In his initial claim of error, the defendant faults the trial court for failing to grant his motion to separate the information into individual counts reciting distinct and separate single crimes, rather than commission of a single criminal offense on multiple occasions. Counts one, two, three, four, six, seven, eight and ten of the information accused the defendant of having committed sexual assaults of the minor victim. The second and third counts, of which the defendant was convicted, as well as the first, fourth and seventh counts, of which the defendant was acquitted, each alleged commission of a single crime on multiple occasions. The defendant contends that this manner of charging prejudiced him because the second and third counts of the state’s information were duplicitous.

“Duplicity occurs when two or more offenses are charged in a single count of the accusatory instrument.” A. Spinella, Connecticut Criminal Procedure p. 406. There is no question but that the second and third counts each include allegations of the commission of more than one offense by the defendant, albeit multiple commissions of the same offense. The issue put to us in this appeal is what effect should be given to the convictions rendered on the allegedly duplicitous counts and the determination of whether remedial action is required by this court. Although we cannot truly claim that this issue is one of first impression in this state; see, e.g., State v. Cook, 75 Conn. 267, 268-69, 53 A. 589 (1902); State v. Bosworth, 54 Conn. 1, 2, 4 A. 243 (1866); we feel that the length of time which has passed since last this claim was considered requires us to. take a fresh look at the doctrine. In reaching our conclusion that the defendant was not prejudiced by the manner in which the information was prepared, we turn to recent treatments of this issue under federal law, as well as to the policy considerations which provided the bases for the earlier decisions of our own Supreme Court.

It is now generally recognized that “[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses. See Cohen v. United States, 378 F.2d 751 (9th Cir.), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967). Rather, such a count is only duplicitous where the policy considerations underlying the doctrine are implicated. See United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981), cert. denied, 461 U.S. 913, 103 S. Ct. 1891, 77 L. Ed. 2d 282 (1983).” United States v. Sugar, 606 F. Sup. 1134, 1146 (S.D.N.Y. 1985); see also United States v. O’Neill, 463 F. Sup. 1200, 1202-1204 (E.D. Pa. 1979), and cases cited therein. “These [considerations] include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution. [United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)].” United States v. Margiotta, supra.

Taking these considerations seriatim, and viewing the information, the court’s instructions to the jury and the verdicts rendered indicate to us that the defendant’s right to a fair trial was not abridged. First, because the offenses charged here are exactly the same, there is no danger that the jury might by its return of a general verdict to an entire count, conceal a finding of not guilty as to one crime. Each count, although alleging repeated commissions of a crime, charged only a single set of essential elements comprising the offense. Because each offense contained the same elements, it would be impossible in this case for the jury to have selected elements from different criminal episodes to arrive at an unlawful verdict. Furthermore, the jury was specifically instructed that although “more than one occasion or diverse dates” were alleged, it had to find one completed violation of the statute alleged in that count. We conclude that the danger of a concealed not guilty verdict is largely nonexistent in a case, such as this, where only a single statutory offense is charged in one count. See United States v. Shorter, 608 F. Sup. 871, 879-80 (D.D.C. 1985).

The second consideration of fairness concerns the possible lack of unanimity of the jury under the information and the evidence. While we are ever mindful that “the defendant is entitled to be protected against the danger that ... he will be convicted not on the basis of one unanimous verdict on a single set of facts but under juror votes of conviction which, depending on the particular member of the jury, relate to entirely different [occasions]”; id., 881; we find that with regard to the evidence adduced in this case, it was not possible for the jury to return a verdict which was not unanimous. Given the complainant’s age and her relative inability to recall with specificity the details of separate assaults, the jury was not presented with the type of detail laden evidence which would engender differences of opinion on fragments of her testimony. In other words, the bulk of the state’s case rested on the credibility of the young complainant. When she testified, for example, that on many occasions the defendant forced her to engage in fellatio while in a motor vehicle parked on the banks of the Connecticut River, the jury was left, primarily, only with the decision of whether she should be believed. With such general testimony, the spectre of lack of unanimity cannot arise. Furthermore, an examination of the court’s charge reveals that the jury was adequately warned that it was required to render a unanimous verdict on at least a single violation of the statute alleged in each count in order to convict the defendant. Under the specific circumstances of this case, therefore, we conclude that the defendant was not prejudiced by the potential lack of jury unanimity.

We also conclude that the defendant was furnished with adequate notice of the charges against him, which satisfies the third fairness consideration. Here, the defendant was accused in each pertinent count with committing a specific act on a victim of a specific class on multiple occasions. “Unlike someone who is charged in a single [information] with violation of what may appear to be several overlapping laws, only a single statute is here involved.” United States v. Shorter, supra, 880. We do not see how, if each violation contained in a count was listed separately, the defendant would have had “more precise or ample notice of the charges against him than he has under the present [information].” Id.

Once again, the fact that the counts charge multiple commissions of the same offense mitigates any problems with regard to the sentencing of the defendant, which is the focus of the fourth consideration. Whereas it might be difficult for a trial court to decide on a fair sentence when the defendant has been convicted on a single count containing disparate charges arising under different statutes, no such difficulty exists when each count concerns only one statute which carries with it a specific punishment. In fact, if anything, the defendant is benefitted by the obvious reduction in the maximum penalties he would otherwise face if each offense had been alleged separately. United States v. Sugar, supra. The three counts of which the defendant was convicted are all class C felonies, each punishable by a term of imprisonment of ten years. Had the defendant’s motion for separation of offenses been granted, he would have been exposed to an additional ten year penalty for each new count that resulted.

Finally, with regard to the fifth consideration, there is no possibility that the court’s denial of the motion to separate the information threatens the defendant with double jeopardy. Each of the information’s eleven counts sufficiently delineated the crimes charged and the time frame within which the defendant was accused of committing those crimes. See Serfass v. United States, 420 U.S. 377, 388-89, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975). The state cannot raise the same charges again within those designated parameters of time. We conclude, therefore, that the trial court did not err in its denial of the defendant’s motion to separate.

II

In his second claim, the defendant challenges the trial court’s denial of his motion to sever and its refusal to order separate trials for each of the counts charged.

“It is indisputable that the decision to join or sever offenses is submitted to the discretion of the trial court and may not be disturbed absent a manifest abuse of that discretion. State v. Pollitt, [205 Conn. 61, 68, 530 A.2d 155 (1987)]; State v. Boscarino, [204 Conn. 714, 721, 529 A.2d 1260 (1987)]. On appeal, the defendant must demonstrate that the ‘denial of severance resulted in substantial injustice,’ and also that any resulting prejudice was ‘beyond the curative power of the court’s instructions.’ State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); see also State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976); State v. Smith, 10 Conn. App. 624, 629, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987).” State v. Perry, 14 Conn. App. 526, 531, 541 A.2d 1245 (1988).

The defendant first argues that a pretrial incident concerning a juror provides the basis for his claim that he was substantially prejudiced by the joinder of eleven counts. The day after she had been accepted as a member of the defendant’s jury, one venirewoman recanted some of the answers she had given in the voir dire the day before. This woman returned to the courtroom to explain that, after having given it more thought overnight, she now believed that the fact that the defendant was charged with eleven different offenses prejudiced her against him. After a thorough questioning by both attorneys and by the court, this venirewoman was excused. The court, satisfied that the venirewoman had not yet discussed her concerns with other potential jurors, released her with the admonition that she not talk to anyone when she returned to the jury room to collect her things.

The short answer to the defendant’s claim that this incident proved that he would be prejudiced by a single trial on eleven counts is that this incident instead indicates that the voir dire system served its purpose in excluding at least one individual who could not be impartial. To expand this occurrence into a claim that no juror would be impartial under these circumstances is speculative and indeed would lead to the absurd conclusion that it would have been impossible for an impartial jury to be impaneled.

The defendant also claims, almost offhandedly, that jury confusion resulted from the complainant’s failure to testify about the alleged assaults in a sequential order. We are not persuaded by this claim. The testimony elicited from the complainant conformed to the information with regard to the different locations where the assaults occurred and the timeframes in which they were alleged to have been committed. We do not agree that the possibility for jury confusion existed in this case. See State v. Boscarino, supra; State v. Perry, supra. Furthermore, the fact that the jury acquitted the defendant of six of the counts substantiates our belief that the jury was capable of deciding each count independently. See State v. Banta, 15 Conn. App. 161, 166-68, 544 A.2d 1226 (1988); State v. Iovieno, 14 Conn. App. 710, 722, 543 A.2d 766 (1988).

In addition, there are other factors which substantiate the court’s refusal to sever these counts. First is the financial and psychological impact and the lack of repose or sense of finality that the defendant would experience if, after a trial on each count, whether convicted or acquitted, he faced additional trials. Second, considerations of judicial economy and the husbanding of the state’s limited resources weight the scale in favor of one trial on an eleven count information rather than eleven trials on single count informations. “Economy and expedition of judicial resources are not achieved when the same facts must be proved to [many] different juries.” State v. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986), quoted in State v. Smith, supra, 630.

HI

The defendant also avers error in the trial court’s denial of his motion for a further bill of particulars. On April 15, 1985, the defendant filed a motion for a bill of particulars in order to determine the “date, time and place” of the alleged offenses. The court ordered the state to attempt to identify the time of the day and the year that each crime was committed. In addition, the court ordered the state to distinguish between weekdays and weekends. The state responded by filing a substitute information which comported, to the best of the state’s ability, with the instructions of the court. Thereupon, the defendant filed a motion for a further bill of particulars asking for greater specificity as to the time, date and place of the crimes. The trial court denied this motion.

The defendant maintains that the court’s denial of his second motion for a bill of particulars requesting more specific information hindered his ability to maintain an adequate defense, particularly an alibi defense.

We recognize that Practice Book § 832 provides that “a bill of particulars disclose information sufficient to enable the defendant to prepare his defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission.” Clearly, “ ‘the function of the bill of particulars under Connecticut practice is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense.’ ” State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984), quoting State v. Troynack, 174 Conn. 89, 96, 384 A.2d 326 (1977).

“ ‘ “A motion for a bill of particulars is addressed to the sound discretion of the trial court. United States v. Gray, 464 F.2d 632, 635 (8th Cir. [1972]); Wong Tai v. United States, 273 U.S. 77, 80-81, 47 S. Ct. 300, 71 L. Ed. 545 [1927]; State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263 [1973]; State v. DiBella, 157 Conn. 330, 339, 254 A.2d 477 [1968] .... [A]n abuse of discretion in the denial of a motion for a bill of particulars can be premised only upon a clear and specific showing of prejudice to the defense; State v. Curtis, [146 Conn. 365, 368, 151 A.2d 336 (1959)]; see United States v. Addonizio, 451 F.2d 49, 64 (3d Cir.) [cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812, reh. denied, 405 U.S. 1048, 92 S. Ct. 1309, 31 L. Ed. 2d 591 (1972)].” State v. Hauck, 172 Conn. 140, 151, 374 A.2d 150 [1976]. The defendant has the burden of showing why the additional particulars were necessary to the preparation of his defense. State v. DiBella, [supra]; State v. Curtis, 146 Conn. 365, 367, 151 A.2d 336 [1959].’ State v. Brown, 173 Conn. 254, 257, 377 A.2d 268 (1977).” State v. Stepney, supra, 241; see State v. Laracuente, 205 Conn. 515, 518-21, 534 A.2d 882 (1987).

The general rule in Connecticut is that “[t]ime is not an essential ingredient of the crime of [sexual assault].” State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945). In derogation of this rule, the defendant argues that the dates of the alleged crimes are material to his defense. “Since the state has not pinpointed the date[s] that the offenses allegedly occurred the defendant claims that his alibi defense is prejudiced. There is no claim, nor is there any evidence that the state knows the precise date of the alleged offenses and is deliberately withholding it from the defendant. We recognize that ‘[t]he state has a duty to inform a defendant, within reasonable limits of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment of the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise. If [there was evidence that] the state had known to a reasonable certainty that the [sexual offenses were] committed within a narrower time frame than that provided in the bill of particulars, then the defendant’s claim . . . would be more convincing.’ State v. Stepney, [supra, 242].” State v. Evans, 205 Conn. 528, 535-36, 534 A.2d 1159 (1987).

As did our Supreme Court in State v. Evans, supra, 536, we “recognize that because the state has been unable to be more precise the defendant’s presentation of his alibi defense may be more burdensome and difficult.” We also recognize, however, that in a case involving the sexual abuse of a very young child, that child’s capacity to recall specifics, and the state’s concomitant ability to provide exactitude in an information, are very limited. The state can only provide what it has. This court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible. To do so would have us establish, by judicial fiat, a class of crimes committable with impunity.

We conclude, as have other jurisdictions considering the issue, that as long as the information provides a time frame which has a distinct beginning and an equally clear end, within which the crimes are alleged to have been committed, it is sufficiently definite to satisfy the requirements of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. See, e.g., United States v. Roman, 728 F.2d 846, 851 (7th Cir.), cert. denied, 466 U.S. 977, 104 S. Ct. 2360, 80 L. Ed. 2d 832 (1984) (crimes committed over eleven year period); United States v. McCown, 711 F.2d 1441, 1450 (9th Cir. 1983) (crimes committed over five month period); People v. Baugh, 145 Ill. App. 3d 133, 495 N.E.2d 688 (1986) (crimes committed over nine month period).

Taking into account the facts and circumstance of this case, particularly the continuing nature of the offenses charged and the tender age of the victim, we cannot say that the trial court abused its discretion in denying the defendant’s motion for a further bill of particulars.

IV

The defendant’s fourth claim is that the second and third counts should have been dismissed as being brought beyond the statute of limitations.

The original warrant for the ndant’s arrest, issued on February 25, 1985, charged him with committing the offenses of sexual assault in the first degree, risk of injury to a minor, unlawful restraint in the first degree and reckless endangerment in the second degree, which crimes allegedly occurred during a period beginning in 1981 and ending in the summer of 1984. On April 4, 1985, the state filed a substitute information which charged the defendant in the first, fourth and fifth counts, with the crime of sexual assault in the first degree committed at various locations, between the years of 1981 and 1984, with “another person . . . under fifteen years of age.” On August 26, 1985, the state filed a second substitute information, adding the charge of sexual assault in the second degree against “another person . . . under fifteen years of age,” comprising counts two and three and covering a time period from August, 1980, to September, 1983. These two counts were retained as the second and third counts of the state’s final substitute information, filed during the trial. The time frame, however, was altered to encompass the period of time between “August of 1980 and August of 1983.”

The defendant argues that because the final substitute information recited crimes which allegedly commenced in August, 1980, which charges were not brought against him until the August 26, 1985 information was filed, the second and third counts should have been dismissed as falling outside of the statute of limitations. We disagree.

Although General Statutes § 54-193 (b) provides that “[n]o person may be prosecuted for any offense . . . for which punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed,” our Supreme Court has held that the issuance of an arrest warrant tolls the running of the statute of limitations for a crime charged. State v. Crawford, 202 Conn. 443, 447, 521 A.2d 1034 (1987). Clearly, then, under Crawford, the original arrest warrant and the first substitute information served to toll the statute of limitations for the crime alleged therein, which was sexual assault in the first degree, occurring between August, 1980, and August, 1983. Crawford cannot provide us with the complete answer, however. The issue now presented to us is one step removed from Crawford, namely whether the arrest warrant and the first substitute information tolled the statute of limitations for a prosecution of sexual assault in the second degree, which offense was not charged until the filing of the substitute information on August 26, 1985.

Although we can find no Connecticut case to guide us, we are again persuaded by the treatment of this issue by other courts, which have concluded that an original information can, under certain circumstances, toll the statute of limitations for a separate and distinct offense alleged for the first time in a superseding information.

Because “[sjtatutes of limitations are intended to ensure, inter alia, that a defendant receives notice, within a prescribed time, of the acts with which he is charged, so that he and his lawyers can assemble the relevant evidence before documents are lost, memory fades, etc.”; United States v. O’Neill, 463 F. Sup. 1205, 1208 (E.D. Pa. 1979); the focal point of a court’s scrutiny on such a claim as this is a determination of whether the superseding information “broaden[s] or substantially amend[s] the charges made in the first [information].” United States v. Grady, 544 F.2d 598, 602 (2d Cir. 1976). In other words, “ ‘if the defendant was [charged] within time, then approximately the same facts may be used for the basis of [a superseding information] . . . .’ ”' United States v. Charnay, 537 F.2d 341, 354 (9th Cir.), cert. denied, 429 U.S. 1000, 97 S. Ct. 528, 50 L. Ed. 2d 610 (1976), quoting Mende v. United States, 282 F.2d 881, 883-84 (9th Cir. 1960), cert. denied, 364 U.S. 933, 81 S. Ct. 379, 5 L. Ed. 2d 365 (1961).

In this case, the definitive elements, sexual intercourse—here, fellatio—with a minor— here, “a female under fifteen years of age”—were included in the first, fourth and fifth counts of the state’s April 4,1985 information, which alleged the commission of sexual assault in the first degree. These same key elements of the second and third counts of the state’s final information, sexual intercourse with a minor, were also set forth in the charges contained in the short form information accompanying the February 22, 1985 arrest warrant.

Therefore, applying the principles enunciated in State v. Crawford, supra, and the rationale of O’Neill and Charnay, we conclude that the trial court did not err in refusing to dismiss the second and third counts of the state’s final information as being time-barred.

V

The defendant contends, in his fifth claim, that the trial court erred when it limited his use of the complainant’s mental health records to cross-examination of the complainant. He argues that, in order effectively to challenge the credibility of the complainant, he should have been permitted to examine the health care professionals who prepared the reports.

The defendant moved for an in camera inspection by the trial court of certain school, medical and psychological records of the complainant. The trial court, after a duly held hearing, found that the defendant had made a threshold showing that the victim “had a mental problem which affected her testimonial capacity . . . .” State v. Esposito, 192 Conn. 166, 180, 471 A.2d 949 (1984). Following the procedures set forth in Esposito, the court conducted an in camera review of the records held by the Cromwell school system, the department of children and youth services (DCYS), the Middlesex Memorial Hospital, the Middlesex Mental Health Clinic and the Associated Psychotherapists of Cromwell. The court, finding these records to be relevant, ordered released to the defendant those of the Cromwell school system, DCYS and the Middlesex Memorial Hospital. The court, deeming the mental health clinic and the psychotherapy records to be privileged pursuant to General Statutes § 52-146e, appointed a guardian ad litem for the complainant. The guardian ad litem consented to the release of the mental health records of her ward to the defendant, with the understanding that their use would be limited to the cross-examination of the complainant.

The defendant, however, sought to use the mental health records to examine and cross-examine witnesses other than the complainant. The trial court rejected the defendant’s request, citing Esposito as limiting the use of the complainant’s records to cross-examination of the complainant only.

As defense counsel conceded at oral argument, the trial court meticulously adhered to the procedures established by our Supreme Court in Esposito and in the subsequent case of State v. Bruno, 197 Conn. 326, 329-32, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), when it released the mental health records of the complainant to the defendant. The court’s limitation on the use of such records solely to the cross-examination of the complainant, however, runs counter to our Supreme Court’s more recent holding in State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986), where the rules established in Esposito and Bruno were expressly modified.

“Where there is any reasonable basis in the evidence for believing that psychiatric personnel may have information relating to the mental condition of a witness that might affect his testimony, the court must conduct a voir dire of the person who may possess such information in order to discover whether it would be admissible. This preliminary inquiry may be conducted only with the consent of the witness sought to be impeached, but, unless such consent is forthcoming, the testimony of the witness must be stricken. The voir dire for the purpose of determining the existence of such impeaching evidence must be conducted in the courtroom in the presence of the defendant and his counsel, who shall be allowed to participate fully in the proceeding. ... If, after conducting such voir dire, the court decides that some of the evidence elicited is admissible at trial, the defendant shall be permitted to use it, but the remaining confidential communications shall be sealed.” State v. Pierson, supra, 228.

Obviously, the Supreme Court in Pierson expanded the procedures outlined in Esposito and Bruno to allow the use of the mental health records of a witness not only for the purposes of cross-examining the witness, but also for the purpose of impeaching the witness through the examination and cross-examination of such mental health professionals who “may have information relating to the mental condition of a witness that might affect his testimony . . . . ” (Emphasis added.) State v. Pierson, supra.

In this case, the trial court, pursuant to Esposito, found that the mental health records did contain information relevant to the testimonial capacity of the witness and ordered the records released, in total, to the defendant. By its finding, the trial court must have determined that the records contained relevant material bearing on the credibility of the witness, otherwise it would have been precluded from releasing the records.

Having made the determination that the records contained information which implicated the witness’ credibility, the next step, under Pierson, requires that the court conduct a voir dire of such health care professionals who may have knowledge bearing on the testimonial capacity of the witness.

The state argues that the defendant should have proffered the testimony of a specific or particular health care professional whose testimony, if precluded, would have served to provide a record sufficient for our review. State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986). We are not persuaded by this argument. The trial court determined that the complainant’s entire mental health record was available to the defendant. Those records are part of the court file and are available to us for our review. We agree with the trial court that the pertinent records call into question the testimonial capacity of the witness. We also agree that, in limiting the use of said records to the cross-examination of the complainant, the trial court correctly conformed to the dictates of Esposito.

The modification of Esposito by State v. Pierson, supra, however, now provides for a procedure calculated to test the admissibility of the testimony of the health care professionals who participated in formulating the witness’ health records. Where, as in this case, the mental health records have been determined by the trial court to be relevant to the witness’ testimonial capacity, it logically and reasonably follows that the preparers of those records may have information other than that which appears in the mental health records relating to the mental condition of the witness that may affect the witness’ testimony; on the other hand, they may not. Thus, the proviso in Pierson for a voir dire of any such witness is a proper way to determine the existence or nonexistence of such evidence. We hold that, because the mental health records of the complainant were deemed to call into question her testimonial capacity, the defense should have been allowed the opportunity, by the voir dire process, to determine if the authors of the mental health reports have any other knowledge which would implicate such testimonial capacity of the complainant. If, as a result of the voir dire, the witness can add nothing to the report, the testimony elicited goes no further; but, if relevant testimony is elicited upon voir dire, the defendant should be allowed to put such testimony to the jury for impeachment purposes.

In reaching this holding, we conclude that Pierson should be given retroactive application. State v. Esposito, supra, was decided in February, 1984. The defendant in this case was tried early in 1986 and sentenced on June 12, 1986. State v. Pierson, supra, was released on August 26,1986. It is uncontested that the trial court correctly applied Esposito, the prevailing law, at the time of the defendant’s trial. It is also,apparent that the trial court’s rulings do not conform to Pierson. We have determined that the interests of justice and a fair trial for the defendant demand our retroactive application of Pierson to this case.

“ ‘The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured to defendants in both state and federal prosecutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The primary interest secured by confrontation is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). ... To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).’ State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); see also State v. Ortiz, 198 Conn. 220, 223-25, 502 A.2d 400 (1985); State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985).” In re Marcel L., 14 Conn. App. 548, 550-51, 542 A.2d 340 (1988).

Because the right of cross-examination is a fundamental constitutional right that goes to the fairness of the defendant’s trial, we hold that Pierson must be applied retroactively to this case. The right to examine and cross-examine witnesses is not a right that accrued to the defendant subsequent to his trial. At all times before, during and since the trial, the defendant was entitled to confront the witnesses against him in any criminal proceedings. Whereas Esposito recognized that right in the area of a witness’ mental health history, Pierson recognized the same right concerning the mental health professionals who were familiar with that history. Neither case created the constitutional right of confrontation, but each recognized and provided procedures for its implementation. The law is plain that only where there is a “clear break with the past” involving a new constitutional decision should a court consider a new rule as nonretroactive. See, e.g., Solem v. Stumes, 465 U.S. 638, 643-45, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984); Reed v. Reincke, 155 Conn. 591, 600-601, 236 A.2d 909 (1967); State v. Payton, 8 Conn. App. 345, 350, 512 A.2d 976 (1986). Although these cases refer to rights cognizable under the fourth amendment to the United States constitution, the principles of retroactive application apply equally to the sixth amendment, which is implicated here. Consequently, we must return this case to the trial court for the purpose of conducting a voir dire of those mental health professionals who prepared the mental health records of the complainant. The court should determine, by such voir dire, whether these witnesses possess any information about the mental condition of the complainant that would have been admissible to impeach her testimony. In the event the complainant refuses to consent to waive her statutory privilege for the purpose of such an inquiry, her testimony at the trial must be wholly stricken and, because she was the only witness to the crimes, the trial court is directed to render a judgment of acquittal. If the complainant does waive the privilege for this purpose and the court finds significant evidence that would be admissible for impeachment, the judgment of conviction is set aside and a new trial is ordered. On the other hand, if no such evidence is discovered, the judgment of conviction must remain undisturbed. State v. Pierson, supra, 228-29; see also In re Robert H., 199 Conn. 693, 710-11, 509 A.2d 475 (1986).

VI

In his sixth claim of error, the defendant challenges the trial court’s admission into evidence of the testimony of various “constancy of accusation” witnesses. The defendant does not claim that this evidence was not relevant or permissible under Connecticut law, but rather asserts that he was unfairly prejudiced by the testimony under the facts of this case because of the span of time which passed between the defendant’s alleged assaults and the day the complainant first confided in another that she had been molested. The defendant urges us to modify the constancy of accusation exception to include a requirement that the victim’s statement must be made “close in time” to the alleged incident. We decline to do so.

“It has long been the established law of this state that delay of this nature does not affect the admissibility of the evidence, but merely presents a question for the trial court as to the weight to be given it. State v. DeWolf, 8 Conn. 93, 100 [1830]; State v. Byrne, 47 Conn. 465, 466 [1880]; State v. Sebastian, 81 Conn. 1, 6, 69 A. 1054 [1908].” State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946). This axiom has been recently reaffirmed by our Supreme Court in State v. Brigandi, 186 Conn. 521, 529, 442 A.2d 927 (1982), and a challenge to the usefulness and continued viability of the constancy of accusation doctrine as a whole was also recently rejected by that court. State v. Dabkowski, 199 Conn. 193, 203, 506 A.2d 118 (1986). Even if we were to find that we were empowered to effect the modification the defendant requests, he has provided us with no valid reason to do so.

VII

The seventh and eighth claims of error presented by the defendant involve evidentiary rulings of the trial court. The defendant avers that the court should have excluded (1) testimony concerning the alleged touching of another minor by the defendant, and (2) testimony of a rebuttal witness, to the effect that she would not feel comfortable leaving her children alone with the defendant, on the grounds that in each of these instances the probative value of this testimony was outweighed by its prejudicial effect.

The following situations suggest the exclusion of otherwise relevant evidence due to the potential for its prejudicial effect: “(1) where the facts offered may unduly arousé the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. McCormick, Evidence (2d Ed.) § 185, pp. 439-40.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). Because of the inherent difficulties in weighing these considerations against the need for relevant evidence, the resolution of this determination has been traditionally entrusted to the trial court. See State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). “Every reasonable presumption must be given in favor of the correctness of the court’s ruling, and reversal will ensue only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979).” State v. Devanney, 12 Conn. App. 288, 292, 530 A.2d 650 (1987).

The defendant offers us nothing in his brief addressing these considerations, relying instead on the bare assertion that the challenged testimony was prejudicial to his cause. Contrary to the defendant’s belief, he is not entitled to have evidence excluded at trial simply because it casts him in an unfavorable light. As it was sagaciously phrased in State v. DeMatteo, supra, 703: “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.”

VIII

The defendant’s final claim is that the trial court erred in denying his motion for a new trial. We will not review this claim due to the defendant’s failure to conform to the rules of practice.

For a defendant to obtain a new trial on the ground of newly discovered evidence, as was sought here, he must bring a petition under Practice Book § 904. State v. Jones, 205 Conn. 723, 728-30, 535 A.2d 808 (1988). “A petition for a new trial is properly ‘instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which the new trial is sought, it is by its nature a distinct proceeding.’ State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980).’” State v. Servello, 14 Conn. App. 88, 101, 540 A.2d 378 (1988).

The defendant did not bring a separate action in this case, instead filing his motion within the confines of the docketed criminal matter. “Accordingly, the trial court should have dismissed the defendant’s [motion] for a new trial because it was improperly brought, and we do not review the trial court’s denial of that [motion].” Id., 102.

There is error in part and the case is remanded for further proceedings in conformity with this opinion.

In this opinion the other judges concurred.

       The final information, filed April 8, 1986, charged the defendant as follows:
      “[FIRST COUNT]
      [TJhat at the Town of East Hampton, at 153 Main Street, on two weekends between approximately August 1980 and November 1980 at an uncertain time, the said MARIO SARACENO did attempt to compel another person, a female who was under fifteen years of age, to engage in sexual intercourse (vaginal intercourse) by the use of force against such person and the threat of the use of force against such person which did reasonably cause her to fear physical injury to herself; in violation of Sections 53a-49 (a) (2) and 53a-70 (a) of the Connecticut General Statutes.
      “SECOND COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of East Hampton, at 153 Main Street, on divers uncertain dates, primarily on weekends, between August 1980 and August 1983, during the daytime or evening in the absence of Carol Saraceno, the said MARIO SARACENO did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “THIRD COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of East Hampton, at divers uncertain loctions while in a motor vehicle between August 1980 and August 1983 on divers uncertain days primarily on weekends during the daytime, the said MARIO SARACENO did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “FOURTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of East Hampton, at divers locations while in a motor vehicle between approximately September 16,1983 and September 26,1983 (during the female’s last stay at the Saraceno residence) during the daytime on approximately three occasions, the said MARIO SARACENO did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “FIFTH COUNT
      “And the Attorney aforesaid further acccuses MARIO SARACENO of RISK OF INJURY TO A MINOR and charges that at the Town of East Hampton, at the places and times set forth in the previous four counts, the said MARIO SARACENO did commit acts, including sexual contact and masturbation, likely to impair the health and morals of a female child under the age of sixteen years; in violation of Section 53-21 of the Connecticut General Statutes.
      “SIXTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of Cromwell, in the vicinity of the Connecticut River while parked in a motor vehicle during the summer of 1982, the said MARIO SARACENO did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “SEVENTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of Cromwell, at the Roman Villa Restaurant on uncertain dates between November 1980 and May 1983 and approximately five occasions in the early afternoon hours and one occasion at approximately 4:00 a.m., the said MARIO SARACENO did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “EIGHTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of Cromwell, at 7 West Street Heights on an uncertain date during the summer of 1982 during the daytime, the said MARIO SARACENO and another male did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “NINTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of RISK OF INJURY TO A MINOR and charges that at the Town of Cromwell, at the locations and times set forth in the previous three counts, the said MARIO SARACENO did commit acts, including sexual intercourse, sexual contact and masturbation, likely to impair the health and morals of a female child under sixteen years of age; in violation of Section 53-21 of the Connecticut General Statutes.
      “TENTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of SEXUAL ASSAULT IN THE SECOND DEGREE and charges that at the Town of Portland, off Route 66, in the vicinity of Winchester Cafe in a motor vehicle on an uncertain date during the summer of 1982 during the daytime, the said MARIO SARACENO and another male did engage in sexual intercourse (fellatio) with another person and such other person was a female under fifteen years of age; in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.
      “ELEVENTH COUNT
      “And the Attorney aforesaid further accuses MARIO SARACENO of RISK OF INJURY TO A MINOR and charges that at the Town of Portland, off Route 66, in the vicinity of the Winchester Cafe in a motor vehicle on an uncertain date during the summer of 1982 during the daytime, the said MARIO SARACENO did commit acts, including sexual intercourse, likely to impair the health and morals of a female child under sixteen years of age; in violation of Section 53-21 of the Connecticut General Statutes.”

       The essential elements of the offense charged, in addition, are limited in number. To be convicted of sexual assault in the second degree, pursuant to General Statutes (Rev. to 1979) § 53a-71 (a), an accused must have engaged in (1) sexual intercourse (2) with another person and (3) such other person is under fifteen years of age. Taking into consideration the fact that at all relevant times, the complainant was under the age of fifteen, the only disputed element was whether the defendant did in fact engage in sexual intercourse, here, fellatio, with her.

       In fact, we believe this increased capability for punishment explains why this claim is rarely litigated: the state will normally attempt to charge an accused separately with as many crimes as he can be said to have committed, resulting in enhanced sentences, and a defendant will not normally claim error in the state’s failure to do so, not wanting to run the risk of facing such an enhanced sentence.

       “[General Statutes] Sec. 52-146e. DISCLOSURE op COMMUNICATIONS, (a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”

       Although there were other witnesses who testified in this case under the doctrine of constancy of accusation, see part VII, infra, their testimony is admissible “only when the complainant has testified.” State v. Brice, 186 Conn. 449, 454, 442 A.2d 906 (1982); State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945).

       In essence, the constancy of accusation doctrine allows a complainant in a sexual offense case to testify that he or she informed others of the attack. These other individuals are then allowed to testify concerning the complaint made by the victim and are permitted to relate the details of the attack as the victim narrated. See generally 2 B. Holden & J. Daly, Connecticut Evidence §§ 93g (2), 98e; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.22. This doctrine has been alternatively defined as an exception to the hearsay rule, and the testimony is therefore admissible as substantive evidence of the defendant’s guilt, or as evidence simply corroborative of the victim’s testimony and therefore relevant only to the credibility of the victim. See State v. Daley, 11 Conn. App. 236, 237-38 and n.l, 526 A.2d 560 (1987); C. Tait & J. LaPlante, supra. The resolution of these inconsistent definitions has no impact on the outcome of this appeal, and therefore, we decline to entertain this question.

       The total span of time from the defendant’s first alleged assault of the victim until the victim first complained is four years: August, 1980, to August, 1984. On the other hand, the last alleged assault of the complainant was charged as occurring in September, 1983, making the period of time she remained silent less than one year.

       Although the defendant’s seventh and eighth claims are briefed in rather sweeping terms, the defendant does not appear to be challenging the trial court’s rulings on the relevancy of the testimony of these two witnesses. If in fact he is, we find the claims meritless. As for the testimony concerning the defendant's claimed touching of a third party, that third party appeared as a constancy of accusation witness on behalf of the complainant. The trial court ruled that a limited amount of information regarding the uncharged touching incident was necessary for introduction of the testimony as constancy evidence under State v. Ouellette, 190 Conn. 84, 98-99, 459 A.2d 1005 (1983), specifically, that the “accusation was made at a time when it was natural to make it.” The trial court took great care in properly cautioning the jury on the permissible uses of this testimony; see State v. Dabkowski, 199 Conn. 193, 197 n.4, 506 A.2d 118 (1986); and we do not find any error in its decision to allow it. Regarding the claim that the state should not have been allowed to ask a witness whether she would leave her children in the defendant’s care, the defendant himself paved the way for this testimony by producing two witnesses in his case-in-chief who testified that they would not hesitate in leaving their children alone with the defendant. After opening the door on this issue and placing his character in evidence, the defendant cannot be now heard to decry the state’s desire to produce rebuttal testimony. See State v. Zdanis, 173 Conn. 189, 194, 377 A.2d 275 (1977); State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976).

       The document filed by the defendant on June 9, 1986, was entitled “Motion for New Trial Based on Newly Discovered Evidence,” and requested “pursuant to Practice Book § 904 ... a New Trial on the basis of newly discovered evidence.” The caption of “Motion for New Trial” cannot be dispositive of the true nature of the documents.

       Practice Book § 904 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with Gen. Stat., § 52-270. The judicial authority may grant the petition even though an appeal is pending.”
      General Statutes § 52-270 provides in pertinent part: “(a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”