author: LANDAU, J. LAVER Y, J.,

text:
    KAREN A. GRIMES v. CONSERVATION COMMISSION OF THE TOWN OF LITCHFIELD
    (14698)
    O’Connell, Lavery and Landau, Js.
    Argued May 2
    officially released September 24, 1996

      William C. Franklin, for the appellant (plaintiff).

      Gail E. McTaggart, for the appellee (named defendant).

      Kenneth R. Slater, Jr., for the appellee (defendant James B. Irwin).
   LANDAU, J.

The plaintiff, Karen A. Grimes, appeals from the judgment of the trial court dismissing her appeal from the decision of the defendant, the conservation commission of the town of Litchfield (commission). The commission voted to approve five permit applications submitted by the intervening defendant, James B. Irwin (applicant), in connection with his plan to develop a residential subdivision. On appeal, the plaintiff claims that the trial court improperly dismissed her appeal because (1) there was substantial evidence in the record to establish that the decision of the commission was unlawful because a commission member, who voted to approve the applications, had failed to attend a site visit and was, therefore, ineligible to vote, (2) the commission lacked jurisdiction in this matter because it failed to provide adequate public notice of a site visit, (3) the commission received and considered evidence ex parte, thereby depriving the plaintiff of her right to due process, and (4) the commission failed to consider, pursuant to General Statutes § 22a-41, whether the development of a separate parcel of land owned by the applicant was a “feasible and prudent alternative” to the proposed action.

The following facts are pertinent to this appeal. The applicant is the owner of a 14.9 acre unimproved parcel of real property located on Hutchinson Parkway in the town of Litchfield. The plaintiff is an abutting property owner. On July 16,1993, the applicant submitted several applications to the commission to obtain permits to conduct regulated activities on the subject property associated with the development of a proposed four-lot single family residential subdivision. Public hearings concerning the applications began September 1, 1993. On September 14,1993, after a public notice was posted in the town clerk’s office, five members of the commission, together with Dennis McMorrow, the applicant’s engineer, conducted a site visit to the subject property. Following the site visit, additional public hearings were held on September 29, 1993, October 27, 1993, and November 17,1993. On December 22,1993, the commission voted to approve the applicant’s proposal with certain modifications. Thereafter, the plaintiff appealed the commission’s decision to the Superior Court claiming, inter aha, that the commission “acted arbitrarily, illegally and in abuse of its discretion.” Upon finding that the commission’s decision was supported by substantial evidence in the record, the trial court dismissed the plaintiffs appeal.

We turn first to the plaintiffs due process claim because our determination of that issue is dispositive of the appeal. The query in this claim is whether the commission deprived the plaintiff and the public of due process of law by failing to give them notice of the September 14, 1993 site proceedings. The plaintiff argues that the site visit in this case was an integral part of the hearing process and the manner in which notice was provided was fundamentally unfair. She asserts that the improper notice rendered the commission’s decision invalid. We agree.

The plaintiff concedes that initially the commission provided proper notice pursuant to General Statutes § 22a-42a (c). She further concedes in her brief that “[o]ur case law does not require that notice of a public hearing originally and properly noticed pursuant to [§ 22a-42a (c)] be renoticed each and every time the public hearing is continued to a separate date.” Nevertheless, she contends that, in this case, the notice for the site visit was defective because the commission, on September 1, 1993, explicitly continued the public hearing until September 29, 1993, without mention of the intervening site visit. She argues that “the public would have had to be clairvoyant to anticipate that the commission would provide notice of the site [visit] in a manner not authorized by [§ 22a-42a (c)].”

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The problem with sufficiency of notice, under the due process clause, is sometimes a difficult one to solve. One must consider and balance the reasons behind the constitutional rule against the practical considerations. This tension makes it impossible to draw a standard set of specifications as to what is constitutionally adequate notice to be applied mechanically in every situation.

In actions involving inland wetlands and watercourses, § 22a-42a provides constructive notice that, it is conceded by all parties, passes constitutional muster. The requirement that persons be notified of proceedings affecting their legally protected interests is obviously a vital corollary to one of the most fundamental requisites of due process—the right to be heard. “This right . . . has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane v. Central Hanover Trust Co., supra, 339 U.S. 314; see also Winslow v. Zoning Board, 143 Conn. 381, 389, 122 A.2d 789 (1956).

The parties agree that as to the meeting held on September 1, 1993, proper notice was provided. At the meeting, which was called to order at 7:04 p.m., the commission stated that it “is awaiting responses from the various agencies/staff that were asked to review and comment on [the subject] application,” and “continued [the hearing] to September 29, 1993,” recessing at 7:06 p.m. Thus, the parties and the interested public who were present were given actual notice of a continued hearing date. The plaintiff asserts, and we agree, that this actual notice given by the commission cannot be trumped by subsequent constructive notice posted in the town clerk’s office, pursuant to General Statutes § 1-21, prior to the site visit held on September 14,1993.

At a meeting held on July 21, 1993, the commission discussed entering into a stipulated agreement as to a previous action commenced by the plaintiff involving an application concerning the same property. The commission agreed to enter into the stipulation permitting the trial court to render judgment for the plaintiff on the basis of inadequate notice. Therefore, it is beyond contradiction that, in this action, the commission had actual knowledge that the plaintiff had previously opposed a similar application and would have an interest in any further application. Indeed, the parties in the earlier appeal were proceeding to judgment during the same time that the application that forms the basis of this appeal was filed and heard.

“The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question.” Schroeder v. New York, 371 U.S. 208, 212-13, 83 S. Ct. 279, 9 L. Ed. 2d 255 (1962). We certainly recognize the procedural impossibility of giving personal notice in some cases, such as those involving missing or unknown persons. But, the inadequacies of notice by publication also must be acknowledged. “Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper . . . .” Mullane v. Central Hanover Trust Co., supra, 339 U.S. 315.

This does not mean, however, that every member of the general public who attended the September 1, 1993 meeting should have been notified automatically either by letter, telephone or in person of the site visit. There is a distinction between those persons who are entitled to notice pursuant to § 22a-42a (c) and the plaintiff, whose strong interest and concerns were well known to the board. It is important to set out in our discussion just what is the issue. We do not address the commission’s conduct at the site or the September 29, 1993 meeting, nor is it necessary to reach this question. Here, the issue is the validity of the notification to the plaintiff and whether it satisfied the fundamental fairness requirements of due process.

The principles of fairness and courtesy must govern the conduct of commissions and boards as well as that of courts, litigants and counsel. See Sassone v. Lepore, 226 Conn. 773, 777, 629 A.2d 357 (1993). Here, the commission’s conduct did not comport with those principles. We should not condone a violation of the fundamental rules of natural justice. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984). We conclude, therefore, that the action of the commission, after continuing the September 1, 1993 meeting to September 29, 1993, and, without notifying the plaintiff by letter or telephone or in person, scheduling a site visit at which it heard from the applicant’s engineer falls short when measured against the rubric of due process and fundamental fairness.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion O’CONNELL, J., concurred.

LAVER Y, J.,

dissenting. I respectfully disagree with the majority opinion, which holds that due process was violated because a site visit by five members of the defendant conservation commission of the town of Litchfield (commission) was held without adequate notice having been given to the plaintiff. It is necessary to set forth additional facts found by the trial court as background for a full discussion of this issue. As stated in the majority opinion, the commission adjourned the public hearing on the permit applications on September 1, and continued it to September 29. On September 14, five members of the commission, along with the applicant’s engineer and designated agent, Dennis McMorrow, visited the site. Since a majority of the commission members were walking the site together, the meeting was properly noticed and posted in the Litchfield town hall pursuant to the Freedom of Information Act in accordance with General Statutes § 1-21.

The minutes of the September 14 meeting reflect that “[t]]he site was walked from lots 1 to 5. The drainage watercourse on lot 1 was examined and alternatives were discussed. The other drainage through the property [was] also noted and discussed. The wetland crossing for driveways to lots 4 and 5 was noted and alternatives discussed.” The transcript from the September 29 continued public hearing, held subsequent to the site visit, is replete with testimony regarding observations and communications relative to the site walk.

McMorrow’s entire presentation at that hearing was limited to the discussion of existing drainage conditions, proposed drainage plans, alternatives to the proposed plans and the wetlands crossing for the common driveway. Specifically, McMorrow outlined the existing on-site drainage conditions and the applicant’s proposed drainage plan. McMorrow also testified as to the proposed alternatives. With respect to the driveway crossing, McMorrow testified that the applicant’s original plan resulted in the least impact on wetlands. At the commission’s request, McMorrow went on to explain alternatives to the single crossing. The trial court found that “the commission did not receive communications without the opposition’s knowledge and opportunity for explanation or rebuttal. The record makes clear that the material content of all observations and communications relative to the site walk summarized in the minutes were disclosed and discussed at the subsequent continued public hearing. Additionally, the plaintiff was provided with ample opportunity to rebut McMor-row’s testimony.”

In addition to the September 29 public hearing, the commission held hearings on October 27 and November 17. The plaintiff presented expert testimony from an engineer and a soil scientist as well as documents and reports to rebut the evidence of the applicant. In addition, the commission adopted the drainage plan proposed by the town engineer, Dave Thompson, in his September 29,1993 report to Hiram Peck, the Litchfield land use administrator. The commission had no knowledge of this plan at the time of its site visit. The plaintiff, therefore, cannot claim that the commission’s failure to notify her of the site visit denied her the opportunity to respond to the plan eventually approved by the commission.

As our Supreme Court has noted, inland wetlands commissions are “composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate.” Gagnon v. Inland Wetlands & Watercourses Commission, 203 Conn. 604, 611, 569 A.2d 1094 (1990). As stated in footnote 3 of the majority opinion, it is customary for these volunteer, lay inland wetlands commission members to make site visits. These visits are optional and usually take place after an application has been filed. The puipose of a site visit is to acquaint the members of a commission with the property at issue. In keeping with this general informality, site visits vary both as to the number of members making a visit, as well as the point of the process when the site visit takes place. For instance, in Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984), “some members” visited the site after the public hearing. (Emphasis added.) In Samperi v. Inland Wetlands Agency, 226 Conn. 579, 582, 628 A.2d 1286 (1993), the site visit occurred before the public hearing. In Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 508, 671 A.2d 844 (1996), a single commissioner visited the site before the public hearing and, on her own, conducted readings of noise levels. In Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 218-19, 605 A.2d 869 (1992), three members visited the site before the public hearings. In Palmisano v. Conservation Commission, 27 Conn. App. 543, 545, 608 A.2d 100 (1992), some members visited the site between two public hearings. In this case, a majority of the members visited the site, which required compliance with the Freedom of Information Act. General Statutes § 1-21.

The majority, however, by requiring notice to parties of the site visit, is making site visits a continuation and part of the public hearing and thus infusing them with an unintended formality. I disagree. Query? If each of the five members visited the site on September 14 at different times, would the plaintiff, under the majority’s reasoning, be entitled to notice of each site visit? Our paramount concern should be what it always has been: whether opponents to an application and the public have an opportunity to examine the evidence upon which the commission decides and to offer evidence in explanation or rebuttal. Our Supreme Court stated that “[i]f an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal . . . .” Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980). For instance, in Cole v. Planning & Zoning Commission, supra, 40 Conn. App. 508-509, the chairwoman of the commission visited the site on her own and conducted readings of the noise levels, and she so stated at the public hearing. Instead of focusing on the particulars of the site visit, this court ruled that the disclosure of the information gave the appellants the right to cross-examine and to offer rebuttal evidence. Id. The present case is no different, except that five members of the commission visited the site. They disclosed at the public hearing and through the minutes of the September 14 site visit what they saw and discussed. The plaintiff had the fullest opportunity during three public hearings to question the commissioners, cross-examine them and offer rebuttal evidence.

The plaintiff relies on Palmisano v. Conservation Commission, supra, 27 Conn. App. 548, for the proposition that an opponent to an application has the right to witness the site visit in order to dispute evidence that is gathered there. In that case, the commission received ex parte evidence regarding the location of a well in relation to the proposed septic system. That evidence was in opposition to the plaintiff s application and was received after the public hearing. In addition, at the site inspection, a commission member felt a pipe that she believed to be a well. Palmisano is easily distinguished from a present case. First, the plaintiffs in that case never had the opportunity to rebut the evidence received ex parte. Second, the commission in that case relied on a commissioner’s knowledge not within her competence. Third, the site visit occurred after the public hearing had been concluded.

In the present case, there was full disclosure and full opportunity to question, cross-examine and rebut. The plaintiff presented voluminous testimony and evidence on the drainage and other issues.

I would not reverse on this issue, and I would review the other claims of the plaintiff.

       The commission is the duly designated municipal agency for the town of Litchfield entrusted with the enforcement of the Wetlands and Watercourses Act, General Statutes §§ 22a-28 through 22a-45a.

       Irwin intervened as a defendant pursuant to Practice Book § 85 and General Statutes § 52-102.

       Although it is customary for inland wetlands commissions to make site visits; see, e.g., Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1993); Palmisano v. Conservation Commission, 27 Conn. App. 543, 608 A.2d 100 (1992); such visits are optional and usually take place after an application has been filed. The purpose of a site visit is to acquaint the members of a commission with the property at issue. See, e.g., Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 701, 433 A.2d 999 (1980); Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984).

       The applicant requested permits to conduct the following regulated activities: (1) construction of a common driveway for lots 3 and 4 resulting in a wetlands disturbance limited to 0.04 acres; (2) correction of the existing pollution and erosion caused by the intermittent stream created from two drainage culverts off Hutchinson Parkway owned by the town of Litchfield; (3) construction of a home and septic system on lot 2 within 150 feet of a watercourse with no impact on wetlands or watercourses; and (4) construction of a septic system on lot 3 within 150 feet of a watercourse with no impact on wetlands or watercourses.

       The minutes of the site visit state in relevant part: “The site was walked from lots 1 1o 5. The drainage watercourse on lot 1 was examined and alternatives were discussed. The other drainage through the property [was] also noted and discussed. The wetland crossing for driveways to lots 4 and 5 was noted and alternatives discussed.”

       General Statutes § 22a-42a (c) provides in pertinent part: “On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland and watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located. . . . No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days,

        and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part, thereof, is located. . . (Emphasis added.)

       In planning and zoning matters, there is no doubt that official newspaper notice is sufficient notice. Double I Ltd. Partnership v. Planning & Zoning Commission, 218 Conn. 65, 588 A.2d 624 (1991).

       General Statutes § 1-21 (a) provides in pertinent part: “Notice of each special meeting of every public agency . . . shall be given not less than twenty-four hours prior to tire time of such meeting by filing a notice of the time and place thereof in the office of . . . the cleric of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency. The secretary or clerk shall cause any notice received under this section to be posted in his office. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting . . . .”

        Grimes v. Conservation Commission, Superior Court, judicial district of Litchfield, Docket No. CV92-0061101S (November 15, 1993).

       Two motions for judgment on the stipulation were filed: one in August, 1993, and the other in September, 1993. Judgment was rendered on November 15, 1993.

       We address the dissent persuaded that it perceives the issue incorrectly and, in doing so, travels down a path on which the majority will not tread, primarily because that issue is not placed before us. The dissent states that we hold “that due process was violated because a site visit by five members of the . . . commission . . . was held without adequate notice having been given to the plaintiff.” This misstates our ruling and is incorrect. We rule only as to the fundamental fairness of the process utilized by the commission. We are not involved, as the dissent suggests, with the aspect of due process that pertains to the commission’s consideration of evidence outside a public hearing. This is clearly demonstrated in the dissent’s discussion of Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 508-509, 671 A.2d 844 (1996), and Palmisano v. Conservation Commission, 27 Conn. App. 543, 545, 608 A.2d 100 (1992), to substantiate its position. In Cole, the issue we decided was whether “the commission denied [the plaintiffs] due process of law by considering evidence obtained outside the public hearings.” Cole v. Planning & Zoning Commission, supra, 508. The same applies to the dissent’s discussion of Palmisano.

      Although the dissent correctly ends at a harmless error analysis, that analysis is inappropriate under the circumstances of this case because the violation affects rights essential to the fundamental fairness of the hearing; the very integrity of the process. Considerations of fairness, the integrity of the fact-finding process and the potency of our system of justice forbid a site visit where only one party and its witness are present and allowed to be heard. See United States v. New York, 434 F.2d 386, 389 (2d Cir. 1970). The violation is amatter of law, not an issue resting on factual considerations. See State v. Varszegi, 236 Conn. 266, 276 n.11, 673 A.2d 90 (1996), citing Luce v. United States, 469 U.S. 38, 44, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (Brennan, J., concurring). Due process, which involves fundamental fairness, is not left outside in the cold just because we are dealing with an administrative process rather than a liberty interest. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).


source: Caselaw Access Project

author: SPALLONE, J.

license: Public Domain

text:
    LOUIS R. FORSELL ET AL. v. CONSERVATION COMMISSION OF THE TOWN OF REDDING
    (14704)
    Lavery, Landau and Spallone, Js.

      Argued June 3
    officially released September 24, 1996

      Edwin C. Pearson, for the appellant-appellee (defendant).

      Kevin J. Gumpper, for the appellees-appellants (plaintiffs).
   SPALLONE, J.

The defendant, the conservation commission of the town of Redding (commission), appeals from the trial court’s decision directing it either to approve the plaintiffs’ inland wetlands applications or to hold additional hearings on the applications. The commission claims that the trial court improperly determined that its denial of the plaintiffs’ applications was not supported by substantial evidence. The plaintiffs filed a cross appeal claiming that the trial court improperly remanded the case to the commission with the option of holding further hearings. We agree with the plaintiffs.

The following facts are pertinent to these appeals. The plaintiffs are the trustees of a trust that owns two parcels of land on Sunnyview Drive in Redding. The parcels of land, which are roughly across the street from one another, are located at 15 and 16 Sunnyview Drive and are referred to as lots 7 and 45, respectively. In 1993, the plaintiffs entered into a contract to sell the parcels to a developer. In October, 1993, the developer applied to the commission for inland wetlands licenses to build a house and septic system on each parcel. These applications were governed by the inland wetlands and watercourses regulations of the town of Redding (wetlands regulations) pursuant to which one must acquire a license before engaging in any regulated activities.

On November 2,1993, the commission held a meeting at which the plaintiffs presented a letter from a certified soil scientist, Marc Beroz, stating that there were no wetlands on lots 7 and 45. The plaintiffs also presented topographical maps of the parcels, prepared by an engineer, Steven Trinkaus, demonstrating the locations of the proposed houses and septic systems and their distances from the nearest wetlands and watercourses. The maps indicated that the houses and septic systems were more than the minimum distance from wetlands or watercourses required by § 2.21 (a) and (b) of the wetlands regulations. The commission also received a report from its expert, James MacBroom, describing shallow groundwater levels in the neighborhood, but also stating that there were no obvious wetlands areas on the parcels. Finally, the commission received a report from its environmental consultant, Barbara Obeda, stating that she found silky dogwoods, a plant common to wetlands areas, along one side of lot 45 and throughout lot 7.

The commission conducted an on-site inspection on November 7, 1993, and held public hearings on the plaintiffs’ applications on January 18, February 15, and March 1, 1994. The commission discussed the applications during its meetings on March 15 and April 5,1994. At the April 5 meeting, the commission voted unanimously to deny the plaintiffs’ applications for failure to comply with §§ 7.2 (a), 7.3 (a) and 7.7 of the wetlands regulations. The plaintiffs appealed to the trial court pursuant to General Statutes § 22a-43. The trial court concluded that the commission did not present substantial evidence that the applications proposed a regulated activity under § 2.21 of the wetlands regulations.

I

The commission claims that the trial court improperly determined that the commission’s decision that the applications proposed a regulated activity was not supported by substantial evidence. Specifically, the commission claims that the trial court misinterpreted the terms wetlands and watercourses as found in its wetlands regulations. The commission asserts that a watercourse, as that term is defined in its wetlands regulations, exists on each of the parcels of land and therefore both applications proposed regulated activities pursuant to § 2.21 (a) and (b). The commission also claims that, because the proposed construction would likely have a significant impact on the wetlands and watercourses in the area, the applications propose regulated activities pursuant to § 2.21 (d).

On an appeal from a decision of an inland wetlands commission to the Superior Court, “the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision.” Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993). “The trial court must search the record of the agency hearings to determine whether there was an adequate basis for the inland wetlands commission’s decision.” Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 217-18, 605 A.2d 869 (1992). “The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . [EJvidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact at issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence .... [A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-42, 525 A.2d 940 (1987).

The commission first asserts that the applications propose a regulated activity pursuant to § 2.21 (a) and (b) of the wetlands regulations. Subsection (a) specifies that any portion of any subsurface waste disposal system, such as a septic system, within 150 feet of a watercourse or within fifty feet of a wetlands is a regulated activity. The plaintiffs presented the evidence of a soil scientist, Beroz, that there were no wetlands soils on the two parcels of land. A map prepared by the plaintiffs’ expert, Trinkaus, showed that the proposed septic system on lot 7 is more than 160 feet from the nearest wetlands or watercourse, and the proposed septic system on lot 45 is 180 feet from the nearest watercourse and substantially further than fifty feet from the nearest wetlands. The commission presented no evidence regarding the presence or location of any wetlands.

The commission asserts, however, that each of the two parcels of land contains watercourses and, therefore, the applications do propose regulated activities. Pursuant to § 2.28 of the wetlands regulations, watercourses include marshes, swamps and bogs. The determination of whether a parcel of land is a marsh, swamp, or bog relies in part on the type of vegetation naturally occurring there. The commission contends that because a wetlands species of plant grows on each parcel of land, each parcel contains a watercourse. The commission relies on the evidence presented by its environmental consultant, Obeda, that the parcels contain a wetlands species of plant. Obeda submitted a report to the commission regarding her inspection of the two parcels of land. Obeda reported that lot 45 contained “small silky dogwood plants along the west side of this lot, in an area marked on an earlier sketched map as a ‘ditch to carry off groundwater.’ ” The report also states that “there is a drainage ditch along the west side of this lot... . The septic system [however] appears to be within the regulated distance from this drainage ditch.” In discussing lot 7, the Obeda report stated that “[a] considerable number of small silky dogwood bushes remained throughout this lot.” The report indicated that silky dogwood plants are a wetlands species of plant.

We disagree with the commission that its decision that the applications proposed a regulated activity pursuant to § 2.21 (a) and (b) was supported by substantial evidence. Neither the Obeda report nor any other evidence specifically states that the parcels of land contain a marsh, bog, swamp or any other watercourse. In addition, under the wetlands regulations, the presence of a wetlands species on aparcel of land is not enough, on its own, to indicate that the parcel contains a watercourse. First, the proper identification of a bog requires a determination that the land contains an accumulation of organic material and an association of plants recognized as bog species. Redding wetlands regulations § 2.4. There is no evidence in the record that either parcel contained an accumulation of organic material or an association of bog species of plant; Obeda identified the silky dogwood as a wetlands species of plant. Second, the proper identification of a marsh requires a finding that the area has a water table at or above the surface most of the year and an association of marsh vegetation. Redding wetlands regulations § 2.16. A report by MacBroom indicated only that the parcels had a “high” water table, and there was no finding that there was marsh vegetation on the parcels. Third, the proper identification of a swamp requires a conclusion that the land is “dominated by an association of plants recognized as swamp species.” (Emphasis added.) Redding wetlands regulations § 2.26. The Obeda report stated that silky dogwoods were found along one side of lot 45 and “throughout” lot 7. The report did not indicate that they dominated the lot and the silky dogwood was not identified as a swamp species. Thus, there was no evidence that either lot contained a watercourse as that term is defined by the wetlands regulations. Because the commission relied solely on the alleged presence of watercourses on the parcels to support its assertion that the applications proposed regulated activities under § 2.21 (a) and (b), we conclude that the trial court properly determined that the commission’s decision, pursuant to those subsections, was not supported by substantial evidence.

The commission next asserts that the applications propose a regulated activity pursuant to § 2.21 (d) of the wetlands regulations. Section 2.21 (d) provides that “any activity, the likely effect of which will have a significant impact on the existing state of any of the wetlands and watercourses of the Town of Redding” is a regulated activity. As a preliminary matter, we agree with the commission that it may “exercise jurisdiction outside [of its] jurisdictional boundaries if activities on ‘unregulated’ land would affect wetlands.” Ahearn v. Inland Wetlands Agency-Conservation Commission, 34 Conn. App. 385, 391, 641 A.2d 812, cert. denied, 230 Conn. 911, 645 A.2d 1015 (1994), citing Aaron v. Conservation Commission, 183 Conn. 532, 542-43, 441 A.2d 30 (1981); see also Manatuck Associates v. Conser vation Commission, 28 Conn. App. 780, 791, 614 A.2d 449 (1992). We must still determine, however, whether there is substantial evidence that the applications propose activities that are likely to have a significant impact on nearby wetlands or watercourses in order to ascertain if the commission has the authority to require the plaintiffs to obtain inland wetlands licenses.

Although a careful review of the record discloses that the commission anticipated asserting that the applications proposed regulated activities pursuant to § 2.21 (d) of the wetlands regulations, the commission never specifically determined that the proposed activities were likely to have a significant impact on the nearby wetlands or watercourses. Nevertheless, the commission’s denial of the applications is an implicit decision that the applications proposed regulated activities, and a reviewing court “ ‘must search the record of the hearings before th[e] commission to determine if there is an adequate basis for its decision.’ ” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588-89, quoting Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990).

The record reveals the following information. First, it is undisputed that both wetlands and watercourses are in close proximity to the two parcels of land; the plaintiffs’ expert prepared a map that demonstrated that the houses and septic systems are to be located between 140 and 180 feet from the nearest wetlands or watercourse. Second, as the trial court noted, current residents of Sunnyview Drive testified at length about water problems on the street, including water on their property, flooding in their basements, and their concerns about existing septic systems and wells. Residents also submitted photographs of flooding on Sunnyview Drive properties. Third, the plaintiffs’ expert, Trinkaus, and the commission’s experts, Obeda and MacBroom, submitted reports regarding the septic systems’ nitrogen renovation rates. According to Trin-kaus’ and MacBroom’s estimated rainfall infiltration rates, the quality of the effluent plume on the two parcels would be within the requirements of the department of environmental protection. In addition, MacBroom and Bridgeport Hydraulic Company submitted memos to the commission stating that the design of the sewage disposal systems on the two parcels complied with the state public health code.

We conclude that the commission’s decision that the plaintiffs’ applications proposed activities the impact of which on the existing state of Redding watercourses or wetlands was both likely and significant is not supported by substantial evidence. Although the commission now asserts that the flood conditions described by the Sunnyview residents constitute a watercourse under the wetlands regulations, the commission did not dispute, during either the public hearing or its own meetings, the plaintiffs’ expert’s determination of the location of the closest watercourse.

Even if we were to assume that the flooding described by the Sunnyview residents does constitute a watercourse, there is simply no evidence that the impact on Redding watercourses or wetlands will be significant. The commission urges that activities likely to have a significant impact include those activities enumerated as “significant activities” in § 2.24 of the wetlands regulations. Section 2.24, however, defines “significant activity” as “any activity . . . which may have a major effect or significant impact on the area for which an application has been filed or on another part of the inland wetlands, watercourse or aquifer system . . . .” We reject the commission’s circular reasoning and adopt our reasoning in Keiser v. Conservation Commission, 41 Conn. App. 39, 674 A.2d 439 (1996). There, we stated that “[a]n activity that merely impacts or affects wetlands is not a significant activity . . . .” Id., 44. As the trial court noted, the commission was concerned that the proposed construction would exacerbate the flooding on the street and the residents were concerned about the impact of any new construction on their septic systems. Even if this may be construed as evidence that the proposed construction could impact nearby wetlands or watercourses, there was no discussion or evidence that such an impact, including a potential septic system failure, would be significant.

Finally, even if we were to assume that the applications proposed activities that could significantly impact watercourses or wetlands, there was no evidence or discussion that such impact was likely. On the contrary, the record reveals that it was the commission’s concern about the drainage problem on the properties, not its concern about watercourses or wetlands, that persuaded it to deny the applications. Indeed, during the commission’s meetings, the potential impact on the wetlands and watercourses was mentioned only once and never resolved.

We agree with the trial court that the commission’s decision that the plaintiffs’ applications propose activities likely to have a significant impact on the Redding wetlands or watercourses was not supported by substantial evidence. The applications, therefore, do not propose regulated activities as defined by the wetlands regulations.

II

The plaintiffs cross appeal, claiming that the trial court improperly remanded the case to the commission with the option of holding additional hearings. They assert that because there is only one conclusion that the commission could reach on their applications, the trial court should have directed the commission to approve them.

In Milardo v. Inland Wetlands Commission, supra, 27 Conn. App. 223, we stated that “ ‘[w]hen agency action is overturned . . . because of invalid or insufficient findings ... a court must ordinarily remand the matter under consideration to the agency for further consideration.’ Feinson v. Conservation Commission, [180 Conn. 421, 429-30, 429 A.2d 910 (1980)]. ‘When it appears, however, that the [agency] could reasonably reach only one conclusion, the court may direct the [agency] to do that which the conclusion requires.’ Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 153, 365 A.2d 387 (1976).” In Milardo, we affirmed the trial court’s remand to the commission to determine whether the applicant’s proposed method of crossing wetlands was the only feasible alternative. Id., 224; see also A.D.A.M. Land Development Corp. v. Conservation Commission, 21 Conn. App. 122, 126-27, 572 A.2d 364 (1990). Our Supreme Court has also ruled that a trial court’s order to an inland wetlands commission to approve an application was improper where the commission could accept the application with conditions or modifications. Feinson v. Conservation Commission, supra, 429.

The decisions in Milardo and Feinson may easily be distinguished. In those cases, each inland wetlands agency clearly had authority over the applications in question because the applications proposed regulated activities. Here, however, we have determined that the plaintiffs’ applications do not propose regulated activities and this conclusion requires that the commission approve the plaintiffs’ applications.

The judgment is reversed in part on the cross appeal and the case is remanded with direction to render judgment remanding the matter to the defendant with direction to grant the plaintiffs’ applications.

In this opinion the other judges concurred.

       Section 2.21 of the wetlands regulations provides: “ ‘Regulated Activity’ means any operation within, or use of, a Regulated Area involving removal or deposition of material, or any obstruction, construction, alteration or pollution of such Regulated Area. In all cases, the precise location of wetlands and watercourses shall be determined by the actual character of the land, the distribution of wetlands soil types and locations of watercourses. The Applicant shall provide this information to the Commission. Such determination shall be made by field inspections and testing conducted by a soil scientist, where soil classifications are required, or by any other qualified individual where locations of watercourses are required.
      “The following are also deemed regulated activities:
      “a. The location of any portion of any subsurface waste disposal system, including any earth-disturbing activities reasonably associated therewith . . . within 150 feet of the mean water line and/or perimeter of all other watercourses and within 50 feet of all wetlands.
      “b. The location of any portion of any structure, including any earth-disturbing activities reasonably associated therewith . . . within 50 feet of all other wetlands and watercourses. . . .
      “d. Any activity, the likely effect of which will have a significant impact on the existing state of any of the wetlands and watercourses of the Town of Redding.”

       Section 7 of the wetlands regulations provides in pertinent part: “7.1 . . . [T]he Commission shall consider and evaluate the environmental impact of the activity, particularly its propensity to directly or indirectly cause or result in the alteration or pollution of wetlands or watercourses ....
      “The following General Criteria and Detailed Parameters will guide the Commission in making its final decision. It shall be the burden of the Applicant to establish that the proposed regulated activities are consistent with these General Criteria and Detailed Parameters, wherever applicable.
      “7.2 General Criteria
      “a. The alternatives to the proposed action, including a consideration of alternatives which might enhance environmental quality, or have a less detrimental effect, and which could feasibly attain the basic objectives of the proposed activity. . . .
      “7.3 Detailed Parameters
      “a. The ability of the area, in which the regulated activity occurs, to continue to absorb, store or purify water or to prevent flooding, and the projected effect on the water table and drainage patterns. . . .
      “7.7 In the case of any application which received a Public Hearing, a license shall not be issued unless the Commission finds that a feasible and prudent alternative does not exist. In making this finding, the Commission shall consider the criteria and parameters set forth in this Section. This finding and the reasons therefore shall be stated in the record of the decision by the Commission.”

       General Statutes § 22a-43 provides in pertinent part: “[A]ny person aggrieved by any . . . decision . . . made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner . . . may . . . appeal to the superior court for the judicial district where the land affected is located . . . .”

       The determination of whether an application proposes a regulated activity is a threshold question. If an application proposes a regulated activity, the commission must then decide whether to grant a license, grant a license with conditions, limitations or modifications, or deny the application. Redding wetlands regulations § 6.1. This decision must be consistent with § 7 of the wetlands regulations. See footnote 2. If, however, it is determined that an application did not propose a regulated activity, then the commission no longer has authority to require an applicant to acquire a license.

       Pursuant to § 2.29 of the wetlands regulations, the characteristics of any of the types of soil in an area determine whether the land in question is a wetland. See also General Statutes § 22a-38 (15).

       Section 2.28 of the wetlands regulations provides: “ ‘Watercourses’means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs, and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon the Town of Redding, regardless of their soil types.”

       Section 2 4 of the wetlands regulations provides: “ ‘Bog’ means a poorly drained area containing an accumulation of organic material and characterized by an association of plants recognized as bog species. Typical examples of bog species are listed in Niering, W. and Goodwin, R., ‘Inland WetlandsPlants of Connecticut’ (1973).”
      Section 2.16 of the wetlands regulations provides: “ ‘Marsh’ means an area that has a water table at or above the surface throughout most of the year, subject to seasonal fluctuations, and that contains an association of plants recognized as marsh vegetation. Typical examples of marsh vegetation are listed in Niering, W. and Goodwin, R., ‘Inland WetlandsPlants of Connecticut’ (1973).”
      Section 2.26 of the wetlands regulations provides: “ ‘Swamp’ means an area dominated by an association of plants recognized as swamp species. Typical examples of swamp species are listed in Niering, W. and Goodwin, R., 'Inland WetlandsPlants of Connecticut’ (1973).”

       Obeda cited W. M. Lefor, A Guide to Common WetlandsPlants of Connecticut and Their Identification (1989), published by the water resources unit of the Connecticut department of environmental protection.

       See footnotes 6 and 7.

       The following exchange occurred at the public hearing on March 1,1994:
      “[Unidentified]: I do not understand whether you have decided this is a regulated activity or not. There are no regulated activities on the . . .
      “Chairman of the commission: We’re trying to determine whether or not the impact of this activity or what the impact of this activity will be on the wetlands.
      “[Unidentified]: That’s a decision yet to be made?
      “[Chairman]: Right. At least I haven’t come to any great monumental conclusion as yet. We’re trying to gather in all the information.”

       The following comments by the members of the commission at its meetings are illustrative:
      “V. DeMasi: [Although it’s not maybe wetlands per se there are characteristics here that are problematical and lead to a lot of runoff and water flow and stuff. . . . I’m very sympathetic towards the neighbors’ problems ....
      “J. Jaslow: [TJhey’ve gone to great lengths to make sure that everything conforms and it’s not that that I have a problem with. I just have a hard time consenting to something that you know has agreatpotentialto exacerbate an already pretty lousy situation there. * ** *
      “L. Berger: My headset is really I don’t think that these two lots should be built because of the problems in the area, and I’m looking for something in the regulations that support that ....

        “J. Jaslow: I feel satisfied that the developer-builder plans for the new homes have gone to some lengths to make sure it’s a good plan .... I just can’t see approving [the applications] until something is done to alleviate that situation.
      “D. Pattee: And you’re talking about the drainage problems.
      “J. Jaslow: The drainage problem, yeah. . . .
      “L. Berger: Do we feel we can . . . deny this because of drainage problems to other properties? ... Is that alright to do?
      “J. Jaslow: In other words, do we have enough grounds? Well, you know, it was also brought up possible impact on wetlands given the situation—if it were exacerbated with additional homes, and I think that’s a bona fide reason as well.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JACOB CRUMP
    (14555)
    Foti, SchaUer and Freedman, Js.

      Argued April 16
    officially released September 24, 1996

      Gwen E. Murray, certified legal intern, with whom, were Kyong C. Yi, certified legal intern, and, on the brief, Richard Emanuel, assistant public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, for the appel-lee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), carrying a pistol on his person without a permit in violation of General Statutes §§ 29-35 and 29-37 (b), and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). The defendant claims that the evidence was insufficient to establish his guilt of the crimes charged, and that his conviction of the crime of conspiracy to commit murder was a legal impossibility. He further claims that the trial court improperly admitted the probable cause hearing testimony of a witness in violation of the defendant’s confrontation and due process rights. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 14, 1991, at approximately 2 a.m., one of two victims, Demond Braswell, who was sixteen years old, left his apartment in building sixteen at Father Panik Village in Bridgeport. He and four others planned to go to a local store to buy beer and food. As the five left building sixteen, they agreed to split into two groups. Demond Braswell, Tremayne O’Brien and Mau-nick Braswell proceeded between buildings sixteen and twenty, while the others proceeded in the opposite direction along Crescent Avenue.

As the three walked, they observed the defendant, Jacob Crump, standing in a doorway to their left at the south comer of building sixteen and Stefan Bagley, standing to their right at the end of building twenty. Bagley, who was carrying a long gun, stepped forward and said, “Freeze, don’t move.” Maunick Braswell immediately ran ahead, and the two victims, Demond Braswell and O’Brien retreated toward building sixteen. Bagley and Crump pursued the two retreating men, firing their weapons at them. The victims reentered building sixteen and more shots were fired therein. They returned to Demond Braswell’s apartment to seek assistance. O’Brien had been shot twice, once in the left leg and once in the right thigh. Braswell had been shot once in the upper abdomen. The two victims were taken by ambulance to Bridgeport Hospital. O’Brien was treated and released. Demond Braswell later died as a result of his gunshot wound.

Braswell’s fatal wound was produced by a ten millimeter copper jacketed bullet. Three ten millimeter bullet casings were recovered from the area south of building sixteen, between buildings sixteen and twenty, where the defendant had been standing. Three more .45 caliber bullet casings were found adjacent to the south end of building twenty, and two additional casings were found in the stairway leading to the Braswell apartment.

The defendant was a fugitive until March 4, 1992, when he was arrested in Hartford on an unrelated matter. At that time, the defendant was identified through fingerprinting, after he initially gave the police a false name.

I

The defendant alleges that the evidence was insufficient to sustain his convictions. “ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” (Emphasis in original.) State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

The jury has the opportunity to observe the conduct, demeanor and attitude of the witnesses and to gauge their credibility. 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). Jurors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995).

A

The defendant first argues that the evidence was insufficient to convict him of attempted murder because the jury could not reasonably have concluded that the defendant shot at O’Brien and that he did so with the specific intent to cause O’Brien’s death. We disagree.

O’Brien testified that the defendant had a gun that he was shooting at O’Brien and Demond Braswell as they fled. O’Brien’s testimony also confirmed that the first bullet to hit him came from the hallway where he had obseived the defendant. Intent to cause the death of a person is an element of the crime and must be proved beyond a reasonable doubt. State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). Intent may, however, be inferred from conduct; State v. Greenfield, 228 Conn. 62, 77, 634 A.2d 879 (1993); and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. State v. Raguseo, 225 Conn. 114, 119, 622 A.2d 519 (1993).

From the evidence presented, the juiy could reasonably have inferred, under the particular circumstances, that the defendant and Bagley had set up an ambush and fired their guns both at the scene and while they pursued the fleeing victims, and that the defendant intended to kill O’Brien. The jury was free to infer that intent from the cumulative effect of all the circumstantial evidence. In considering the evidence introduced in this case, the jury was not “ ‘required to leave common sense at the courtroom door.’ ” State v. Patterson, 35 Conn. App. 405, 414, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). The jury was free to infer that the defendant and Bagley purposefully armed and positioned themselves, firing simultaneously at the same victims, with the intent to kill O’Brien. See State v. Diaz, 237 Conn. 518, 542, 679 A.2d 902 (1996).

B

The defendant claims that the evidence was insufficient to convict him of conspiracy to commit murder. “To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended the conduct constituting a crime be performed. State v. Rouleau, supra [258]; State v. Channer, 28 Conn. App. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).” State v. Hooks, 30 Conn. App. 232, 241-42, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993).

It is the defendant’s claim that the state did not prove the existence of an agreement, thereby failing to prove a necessary element of the crime of conspiracy to commit murder. The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991). Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. State v. Goodrum, 39 Conn. App. 526, 537, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995). The state need not prove that the defendant and a coconspirator shook hands, whispered in each other’s ear, signed papers, or used any magic words such as “ ‘we have an agreement.’ ” State v. Fellato, 10 Conn. App. 447, 453, 523 A.2d 1345 (1987). A conspiracy can be inferred from the conduct of the accused. State v. Lynch, 21 Conn. App. 386, 400, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). If a jury can infer from a defendant’s actions that activities were planned in advance in order to facilitate the crime, that knowing participation in the act itself, may be sufficient to allow the jury to infer the conspiracy from that conduct. See State v. Hanks, 39 Conn. 333, 343, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995); see also State v. Elijah, 42 Conn. App. 687, 696-97, 684 A.2d 709 (1996).

“To prove the offense of conspiracy to commit murder, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to cause the death of another person.” State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

Our review of the record discloses that there was sufficient evidence to allow the jury to conclude that the state proved beyond a reasonable doubt that the defendant and Bagley conspired to kill the victims. Their actions in setting up and executing their ambush, their continuing to follow and shoot at the victims with one of them shouting, “Get em, get em,” their actions in conjunction with one another in using the weapons, and in general, the interaction between the defendant and Bagley were sufficient to allow the jury to conclude that the actions were planned and agreed upon at some prior time. It was not unreasonable for the jury to conclude that those actions were not spontaneous and unplanned. Moreover, it was not unreasonable for the jury to conclude that it was not a coincidence that the defendant and Bagley waited in the dark, at different locations, to shoot at their victims, with the intent to kill the victims.

C

The defendant maintains that his conviction for the crime of carrying a pistol without a permit may not be sustained because the state failed to prove that he was carrying, without a permit, a “firearm having a barrel less than twelve inches in length.” General Statutes § 29-37. The defendant argues that the jurors had neither direct evidence, nor any other evidence, from which they could infer anything about the length of the barrel without resorting to speculation and conjecture.

We conclude from our review of the record that the state presented sufficient facts from which the jury could reasonably have inferred that the defendant had a pistol with a barrel length of less than twelve inches, which he carried without a permit. The evidence showed that Bagley had a long rifle and that three .45 caliber shell casings were found where he had been standing. From an expert, the jury learned that a rifle can discharge a .45 caliber shell. The state also produced evidence that the defendant had a weapon, that he was observed in the hallway from which the first bullet to strike O’Brien was fired, that prior to the shooting he had been observed leaning against a wall with his hands behind his back, hiding what he was holding, that immediately after the shootings three. 10 millimeter casings were discovered in or near the doorway where the defendant had been standing, that a single . 10 millimeter bullet had caused the death of Demond Braswell and that .10 millimeter bullets are fired only from pistols with barrels less than twelve inches in length.

The jury is free to accept or reject, in whole or in part, the evidence presented by any witness. State v. Medina, 228 Conn. 281, 310, 636 A.2d 351 (1994). The credibility of the state’s expert witness and lay witnesses, and the weight given their testimony is a matter left to the sound judgment and common sense of the jury. See State v. Breton, 235 Conn. 206, 234, 663 A.2d 1026 (1995). The jury obviously believed the state’s witnesses, including the expert, and gave weight to that evidence, even if circumstantial, concluding that the state had proven beyond a reasonable doubt that the defendant was guilty of the charge of carrying a pistol without a permit.

II

The defendant next claims that his conviction for the crime of conspiracy to commit murder cannot stand, because the sole alleged coconspirator lacked the specific intent necessary for murder. He alleges that his conviction on this charge is therefore a legal impossibility. Ordinarily, we will not review a claim that was not distinctly raised before the trial court. Practice Book § 4185; State v. Reddick, 33 Conn. App. 311, 331, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). The defendant agrees that this issue was not raised before the trial court, but seeks review under the Evans/Golding doctrine or, in the alternative, seeks plain error review pursuant to Practice Book § 4185. The defendant’s request for review of this unpreserved claim is raised initially in his reply brief. We, therefore, will not review this claim under the Evans/Golding standard of review. State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994).

The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceeding. State v. Krzywicki, 39 Conn. App. 832, 840, 668 A.2d 387 (1995). Because we can discern no court action resulting in any manifest injustice, and because this claim does not warrant review, we decline review on this basis.

Ill

Last, the defendant claims that the trial court improperly admitted into evidence the probable cause hearing testimony of O’Brien. The defendant raises three grounds in support of this claim. First, he claims that his right to due process of law and a fair trial was violated by the state’s suppression of exculpatory material at the probable cause hearing. Next, the defendant alleges that his right of confrontation was violated by the use of unreliable probable cause hearing testimony at trial, and finally, he argues that the trial court unduly restricted cross-examination of O’Brien at the probable cause hearing.

Following a hearing conducted in the absence of the jury, the trial court found that O’Brien was unavailable as a witness, despite good faith efforts by the state to locate him and have him present to testify in person. Moreover, the trial court found that his earlier recorded testimony at the probable cause hearing contained sufficient indicia of reliability. The trial court, therefore, allowed O’Brien’s testimony to be read to the jury through a surrogate witness.

The defendant alleges that the state suppressed evidence in violation of Brady at the probable cause hearing. The specific evidence that the defendant argues was improperly suppressed consists of O’Brien’s testimony at the probable cause hearing and trial of Bagley, O’Brien’s statement to the police on the day of the shooting, and the statement that Durosola Crump, the defendant’s brother, gave to the police on the day of the shooting.

The defendant argues that because this evidence was suppressed by the state, he was deprived, in effect, of the opportunity to cross-examine O’Brien. He maintains that this may be distinguished from the opportunity to cross-examine effectively. We disagree.

In order for an appellate court to consider claims of nondisclosure of exculpatory material at a probable cause hearing required by our state constitution, the defendant must demonstrate that the prosecutor suppressed material evidence that was favorable to the defense. State v. White, 229 Conn. 125, 134-35, 640 A.2d 572 (1994); State v. McPhail, 213 Conn. 161, 166-67, 567 A.2d 812 (1989); State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989). Evidence is not considered suppressed if it is known to the defendant or his counsel. State v. Rasmussen, 225 Conn. 55, 91, 621 A.2d 728 (1993). The defendant has failed to demonstrate that he never received O’Brien’s statement to the police, that he did not know of O’Brien’s testimony or have the opportunity to purchase the transcripts of the Bagley probable cause hearing and trial, or that the Durosola Crump statement was both favorable and material. See State v. Simms, 201 Conn. 395, 518 A.2d 35 (1986); State v. Sherman, 38 Conn. App. 371, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). From the record before us we cannot conclude that a Brady violation took place at the probable cause hearing.

We have recently concluded that if a trial court has properly determined that a witness is unavailable, and if the defendant has been given the opportunity to cross-examine the witness, that witness’ prior testimony at a probable cause hearing, if found to bear adequate indicia of reliability, is admissible evidence under the prior testimony exception to the hearsay rule. See State v. Malone 40 Conn. App. 470, 671 A.2d 1321 (1996).

“Cases involving the admission of an unavailable declarant’s prior statements . . . [give] rise to Confrontation Clause issues because hearsay evidence was admitted as substantive evidence against the [defendant]. . . . State v. Outlaw, 216 Conn. 492, 503, 582 A.2d 751 (1990). The sixth amendment to the United States constitution guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him .... While the confrontation clause may bar the admissibility of evidence possibly admissible under an exception to the hearsay rule; State v. Outlaw, supra, 504; the right of confrontation is not violated by the substantive use of a prior statement if the declarant is unavailable, and if that statement bears adequate indicia of reliability. Id., 505. . . . [There is] no authority, under either [the federal or state] constitution, for the proposition that any particular type of cross-examination, as to duration or content, is a requirement that must be satisfied before that prior testimony may be admissible. Neither the state nor the federal guarantees of the right of confrontation require that a witness be present at trial for an actual cross-examination in order to admit prior testimony given under oath. . . . The test is the opportunity for a full and complete cross-examination rather than the use made of that opportunity. State v. Parker, [161 Conn. 500, 504, 289 A.2d 894 (1971)]. . . . Our Supreme Court recognized, although not as a matter of constitutional interpretation, that the testimony given at a probable cause hearing has the identical safeguards to insure reliability and trustworthiness as the testimony given at the trial. State v. Parker, supra, [503].” (Citations omitted; internal quotation marks omitted.) State v. Malone, supra, 40 Conn. App. 476-77.

The extent of cross-examination at a probable cause hearing, or at a trial, is a trial tactic. State v. Parker, supra, 161 Conn. 504. The defendant’s limited cross-examination of O’Brien at the preliminary hearing was entirely his choice. Our review of the record discloses that the defendant, through counsel, exercised his right of cross-examination and elicited many answers from the witness, perhaps as many as sixty, dealing with relevant matters. Our review of the record does not disclose that the trial court limited the defendant’s cross-examination so as to have violated his rights of confrontation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of the additional charges of murder in violation of General Statutes § 53a-54a (a), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2).

       The defendant’s claims are made under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 9, of the Connecticut constitution.

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . .

        General Statutes § 29-27 provides: “The term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-30, inclusive, mean any firearm having a barrel less than twelve inches in length.”

       The state’s expert also testified that there is no rifle capable of discharging a .10 millimeter bullet.

       Bagley’s convictions, after a separate, earlier trial, for manslaughter in the first degree; General Statutes § 53a-55 (a) (3); as to Demond Braswell, and assault in the first and second degrees as to Tremayne O’Brien were affirmed. State v. Bagley, 35 Conn. App. 138, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994).

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

        Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

       The record appears to indicate that it was given, as required, following O’Brien’s direct examination at the hearing in probable cause.

       The defendant does not contest this determination by the trial court.

       Although the trial court improperly refused to mark O’Brien’s written statement as an exhibit for identification at the preliminary hearing, it was marked as a full exhibit at the trial. The failure to mark that statement for identification did not, however, deprive the defendant of the opportunity for effective cross-examination of O’Brien at that hearing.