author: HEALEY, J.

text:
    ROBERT C. JOHNSON v. DEPARTMENT OF PUBLIC HEALTH ET AL.
    (AC 16394)
    Foti, Schaller and Healey, Js.

      Argued November 4, 1997
    officially released March 17, 1998

      Jeffrey F. Gostyla, with whom, on the brief, was Edward T. Lynch, for the appellant (plaintiff).

      Christy Scott, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Opinion

HEALEY, J.

The plaintiff, Robert C. Johnson, appeals from the trial court’s decision dismissing his administrative appeal from the decision of the department of public health (department) and dismissing his “independent civil action” for declaratory judgment, injunctive and other relief. On appeal, he claims that the trial court improperly (1) granted the defendants’ motion to dismiss the administrative appeal, (2) granted the defendants’ motion to dismiss his “independent civil action” for declaratory judgment, (3) failed to address the plaintiffs claims of aggrievement, and (4) applied an improper standard of review in determining the defendants’ motion to dismiss. We affirm the judgment of the trial court.

This appeal arises out of an administrative action instituted on charges by the department to revoke the plaintiffs state nursing home administrator’s license. The statement of charges, issued February 9,1995, and amended June 22, 1995, accused the plaintiff of failing to investigate and report allegations of resident abuse, neglect, mistreatment and injuries of unknown origin, concealing abusive staff conduct, and failing to take reasonable steps to protect residents from neglect and abuse, which allegedly took place during 1991 and 1992. Thereafter, the plaintiff filed with the department hearing officer a motion to dismiss the department’s administrative action. On September 7,1995, the department hearing officer denied that motion. Shortly thereafter and prior to the start of the administrative hearing, the plaintiff filed the present action in the Superior Court seeking, inter alia, judicial review of the hearing officer’s denial of his motion.

Thereupon, the department filed a motion to dismiss for lack of subject matter jurisdiction. The trial court granted the department’s motion to dismiss. It did not write a memorandum in doing so but rather, in granting it, wrote on the motion itself: “See Polymer Resources Ltd. v. Keeney, 227 Conn. 545 [630 A.2d 1304] (1983) and Pet v. Dept. of Health Services, 207 Conn. 346 [542 A.2d 672] (1988).” This appeal by the plaintiff followed.

I

Initially, it is appropriate that we consider the plaintiffs claim that the trial court applied an improper standard of review in determining the department’s motion to dismiss. He argues that although “captioned in terms of a challenge to the court’s subject matter jurisdiction over [his] claims,” the motion “was actually a challenge to the legal sufficiency of [his] complaint [which is] properly raised through a motion to strike.” Casting it as a motion to strike, the plaintiff argues that the court has an obligation to take as true the facts alleged in the challenged pleading and then determine whether those facts, if proven, would support a cause of action. If so, the motion to strike must fail. The plaintiff offers very little analysis in support of this argument. “[T]he construction of a pleading is a question ultimately for the court.” Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985); Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). We reject the plaintiffs characterization of the motion as a motion to strike.

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260 (1954).” Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim.” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, supra, 207 Conn. 351, quoting Concerned Citizens of Sterlings, Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987); Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 557; Housing Authority v. Papandrea, 222 Conn. 414, 420, 610 A.2d 637 (1992).

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986). Furthermore, [b]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim. Concerned Citizens of Sterlings. Sterling, [supra, 204 Conn. 556]. [Wjhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings. . . . Id., 557.” (Internal quotation marks omitted.) Housing Authority v. Papandrea, supra, 222 Conn. 420; Polymer Resources Ltd. v. Keeney, supra, 227 Conn. 557; Pet v. Dept. of Health Services, supra, 207 Conn. 350-51.

The failure to exhaust administrative remedies implicates the subject matter jurisdiction of the court. That was what the department claimed, that was how the matter was presented to the court and that was how the court decided it. Therefore, the plaintiffs claim that the trial court applied an improper standard of review in determining the department’s motion to dismiss is without merit.

II

We turn next to the plaintiffs claim that the exhaustion doctrine is not applicable here because his claims center on the issue of whether the department has jurisdiction to adjudicate his licensure matters, which, he contends, is properly before the Superior Court to decide. Alternatively, he maintains that exhaustion is not required in this case because the department, in instituting formal charges against him, exceeded its authority by violating its own statutory and regulatory provisions. We do not agree.

The plaintiff claims that the department exceeded its statutory authority and violated its regulatory provisions by subjecting him to a long “delay” in instituting formal charges and failing to afford him a timely opportunity to demonstrate his “compliance with all lawful requirements for the retention of [his] license,” as provided in General Statutes § 4-182 (c). In addition, he argues that it is improper to subject him to the cost, inconvenience and impact of having to go through a multiday hearing with the department before he can appeal to the Superior Court. He points out that he clearly satisfies the first prong of General Statutes § 4-183 (b) in asserting his interlocutory appeal and that as to the second prong, a “postponement of [his] appeal [to the Superior Court] would result in an inadequate remedy.” Recourse to the administrative remedy, he argues, would be futile or inadequate. Therefore, he maintains that exhaustion is not required under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.

On the other hand, the department claims that the trial court properly granted the motion to dismiss, as it lacked subject matter jurisdiction to adjudicate the plaintiffs claims because he failed to exhaust his administrative remedies. In addition to claiming that the plaintiff cannot bypass the exhaustion requirement by challenging the agency’s jurisdiction, the department also maintains that he has not established that the postponement of his administrative appeal would result in an inadequate remedy.

“It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction.” New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 120, 627 A.2d 1257 (1993). Our Supreme Court has reiterated that “[w]here there is in place a mechanism for adequate judicial review, such as that contained in [General Statutes] § 4-183, it is the general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court.’ . . . Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989); Cannata v. Department of Environmental Protection, 215 Conn. 616, 623, 577 A.2d 1017 (1990).” (Internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 558; Wilkinson v. Inland Wetlands & Watercourses Commission, 24 Conn. App. 163, 167, 586 A.2d 631 (1991).

Stated in another way, “[i]t is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . Exhaustion is required even in cases where the agency’s jurisdiction . . . has been challenged. Cannata v. Dept. of Environmental Protection, [supra, 215 Conn. 621-22 n.7]; Greater Bridgeport Transit District v. Local Union 1366, [supra, 211 Conn. 438]; Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Wilkinson v. Inland Wetlands & Watercourses Commission, [supra, 24 Conn. App. 163].” (Citations omitted; internal quotation marks omitted.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995). In Pet v. Dept. of Health Services, supra, 207 Conn. 346, our Supreme Court said: “The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. Concerned Citizens of Sterling v. Sterling, supra [204 Conn. 557]; Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, [173 Conn. 352, 358-59, 377 A.2d 1099 (1977)]. The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review. Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57, 385 N.E.2d 560, 412 N.Y.S.2d 821 (1978). Cahill v. Board of Education, [198 Conn. 229, 242, 502 A.2d 410 (1985)].” (Internal quotation marks omitted.) Pet v. Dept. of Public Health Services, supra, 207 Conn. 351.

More importantly, a favorable outcome will render review by the court unnecessary. As the United States Supreme Court has noted: “A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene.” McKart v. United States, 395 U.S. 185, 195, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); Pet v. Dept. of Health Services, supra, 207 Conn. 351—52; Housing Authority v. Papandrea, supra, 222 Conn. 420-21; see Kashani v. Nelson, 793 F.2d 818, 825-26 (7th Cir.), cert. denied, 479 U.S. 1006, 107 S. Ct. 644, 93 L. Ed. 2d 701 (1986); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156, 520 A.2d 186 (1987). Our Supreme Court has acknowledged that “[e]ven a claim that an administrative agency has exceeded its statutory authority or jurisdiction may be the subject of an administrative appeal. Payne v. Fairfield Hills Hospital, 215 Conn. 675, 679, 578 A.2d 1025 (1990).” Housing Authority v. Papandrea, supra, 222 Conn. 424.

The provisions of § 4-183 (b) recognize that exhaustion is required as a prerequisite to the Superior Court’s jurisdiction absent exceptional circumstances. Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 558; Pet v. Dept. of Health Services, supra, 207 Conn. 350-52; see O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 425. “The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.” McKart v. United States, supra, 395 U.S. 193; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541, 469 A.2d 382 (1983). While our courts have also acknowledged that there are exceptions to the exhaustion doctrine, “we have recognized such exceptions only infrequently and only for narrowly defined purposes.” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, supra, 353; Hunt v. Prior, 236 Conn. 421, 432, 673 A.2d 514 (1996); Polymer Resources, Ltd. v. Keeney, supra, 561.

Two recognized exceptions to the exhaustion doctrine are in circumstances in which recourse to the administrative remedy would be inadequate or demonstrably futile. Hunt v. Prior, supra, 236 Conn. 432; O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429; Labbe v. Pension Commission, 229 Conn. 801, 814-15, 643 A.2d 1268 (1994); Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 561; Pet v. Dept. of Health Services, supra, 207 Conn. 353; Greenwich v. Liquor Control Commission, supra, 191 Conn. 541-42; Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 519, 442 A.2d 920 (1982); Lopiano v. Stamford, 22 Conn. App. 591, 595, 577 A.2d 1135 (1990). Exhaustion is not required simply because the plaintiff has brought an interlocutory appeal under § 4-183 (b) challenging the jurisdiction of the department to hear and decide his licensure. In this case, however, nothing has happened to the plaintiffs license issued to him by the department. He is still licensed to operate a nursing home facility and is operating the facility involved. The department has decided nothing except to bring charges against him, against which he will have the right to defend fully prior to any decision by that agency on his licensure. While it is true that exhaustion may be excused where recourse to the administrative remedy would be futile or inadequate, the plaintiff has not demonstrated that resort to agency action will be futile. The mere allegation that it will prove so is not cognizable.

Quite recently, our Supreme Court in Hunt v. Prior, supra, 236 Conn. 433, quoting Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995), stated, “[i]t is futile to seek [an administrative] remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.” (Internal quotation marks omitted.) See O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429. That is not the case here. The plaintiff may prevail before the agency. He has available an adequate remedy, recognized under § 4-183 (c), namely, to resort to the agency proceedings that have been instituted, which he now wants to bypass. It is no answer for the plaintiff, in refusing to avail himself of that administrative remedy, to claim that to do so may prove more costly and less convenient than going directly to Superior Court. The United States Supreme Court has said: “Without a clear showing of irreparable injury . . . failure to exhaust administrative remedies serves as a bar to judicial intervention in the agency process.” (Citation omitted.) Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974); see Emery Air Freight Corp. v. Local Union 295, 786 F.2d 93, 100 (2d Cir. 1986). Again, in the exhaustion context, the same court opined that “the expense and annoyance of litigation is part of the social burden of living under government.” (Internal quotation marks omitted.) Federal Trade Commission v. Standard Oil Co. of California, 449 U.S. 232, 244, 101 S. Ct. 488, 66 L. Ed. 2d 416 (1980), quoting Petroleum Exploration, Inc. v. Public Service Commission, 304 U.S. 209, 222, 58 S. Ct. 834, 82 L. Ed. 1294 (1987).

In further claiming that the administrative remedy is inadequate and that exhaustion is not required, the plaintiff contends that the department was required to provide him with an opportunity to demonstrate compliance with its statutory and regulatory requirements before the start of administrative proceedings, and that the hearing officer improperly denied his motion to dismiss. In making this claim, he refers to § 4-182 (c), which provides in relevant part: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. . . . These proceedings shall be 'promptly instituted and determined.” (Emphasis added.) This claim is without merit.

In addition to General Statutes § 4-182 (c), § 19-2a-14 (a) of the Regulations of Connecticut State Agencies provides: “Upon the completion of any investigation, the commissioner may issue a complaint against a respondent. Prior to the issuance of any complaint, the commissioner shall afford any licensee an opportunity to show cause why formal charges should not be instituted.” The plaintiff argues that his rights under the statute and the regulations were violated because he was not given the “advance opportunity,” i.e., prior to the bringing of formal charges against him, “to show compliance.” In making this claim, he argues that the department instituted formal agency proceedings against him on February 9, 1995, by the issuance of a statement of charges. Under date of May 2, 1995, the department wrote to the plaintiff, scheduling a “compliance conference” on May 11, 1995. The plaintiff chose not to attend the proposed May 11, 1995 conference, stating that it would be “meaningless” given that the department “has already determined to pursue formal charges.” In his attorney’s letter of May 11, 1995, he stated that the department “has not complied with its own regulations,” and “has already prejudged and determined to bring formal charges in violation of [the plaintiffs] procedural due process rights under regulation and statute.” We are not persuaded by the plaintiffs claims.

First, under the state of the record, including the fact that no formal hearings on the pending charges have yet been held and no determination made concerning his license, the plaintiffs claims are lacking in merit. In his appellate brief, the plaintiff claims that he was not given the compliance opportunity “mandated by Connecticut law,” and he rejects out of hand the claim that he had other “opportunities” to show compliance evidenced by letters provided to him earlier in the administrative proceedings. These, he claims, do not comply with § 4-183 (c) as they “do not pertain to [him] and-or are defective because they do not specify facts or conduct.” In addition, in a letter dated February 2, 1993, the department wrote to the plaintiff as administrator of the licensed facility that “[i]n accordance with General Statutes § 19a-14 (a) (10) and § 19a-14 (a) (11), this department is conducting an investigation with reference to your failure to take appropriate action, at various time in the past, when you were informed of allegations of patient abuse.” It also requested that he provide the department with a response to a specific petition referred to earlier in the letter.

One of these letters is specifically directed to the plaintiff as the “Administrator.” Under the department regulations, specifically § 19-13-D8t (f) (3), we point out that “[t]he administrator [of a licensed facility] shall be responsible for the overall management of the facility and shall have the following powers and responsibilities: (A) Enforcement of any applicable local and state regulations, any federal regulations that may apply to federal programs in which the facility participates, and facility by-laws . . . .” The plaintiff maintains that negotiations took place over a period of time with the department over the latter’s claims. Whether these were “opportunities” to show compliance is not for this court to say. The plaintiff, however, apparently feels the need to disavow them as such, and it is disingenuous of him to suggest that they “do not pertain to [him]” as he was the “administrator” of the facility at that time and still is.

Second, we cannot, in the circumstances of this case, agree that he is entitled to bypass the exhaustion requirement because of the “violation” by the department of his procedural due process rights by not affording him the opportunity to show compliance as provided for in General Statutes § 4-182 (c) and § 19-2a-14 of the Regulations of Connecticut State Agencies. “ ‘The concern of due process is the fair administration of justice.” In re Dodson, 214 Conn. 344, 368, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). Due process is “ ‘not a technical conception with a fixed content unrelated to time, place and circumstances.’ . . . Rather, it is a flexible doctrine, requiring ‘such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).” (Citation omitted.) Williams v. Bartlett, 189 Conn. 471, 476-77, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983); Computer Assistance, Inc. v. Morris, 564 F. Sup. 1054, 1059 (D. Conn. 1983); Tedesco v. Stamford, 222 Conn. 233, 242, 610 A.2d 574 (1992). Even if we assume that the plaintiff was not afforded literal compliance with the statute and regulation, the plaintiff did choose not to participate in the proposed compliance conference of May 11, 1995, made available to him prior to a formal hearing. We need not decide whether that opportunity fell within the flexible ambit of appropriate procedural due process. Moreover, he still has the opportunity in the formal hearing to show “compliance” and may even prevail. It cannot be overlooked that there has been no “revocation, suspension, annulment or withdrawal” of his license nor has there been any sanction of any sort imposed by the department to date. To date, it does not appear that he has been deprived of any recognized property right.

In rejecting the plaintiffs position here, we follow our Supreme Court precedent, which continues “to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy.” (Emphasis added.) Pet v. Dept. of Health Services, supra, 207 Conn. 356; Polymer Resources, Inc. v. Keeney, supra, 227 Conn. 563. There was and is an available administrative remedy that is not demonstrably futile. “Simply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process.” LaCroix v. Board of Education, supra, 199 Conn. 79. There was and is an available statutory appeal process. Furthermore, “[t]he plaintiffs preference for a particular remedy does not determine the adequacy of an administrative remedy . . . .” Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 642, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993).

Under the facts of this case, we hold that the trial court properly dismissed the plaintiffs claims for failure to exhaust his administrative remedies.

Ill

We turn next to the plaintiffs claim that even if we conclude that the trial court properly granted the department’s motion to dismiss under § 4-183 (b) of the UAPA, nonetheless, his “separate collateral civil action” must stand. This styled “independent civil action” contains not only constitutional claims but also prayers for declaratory judgment, including that the department is barred and estopped from proceeding with any disciplinary hearing, and that the department appoint a neutral, impartial hearing officer not employed by the department and not under the direct control of the department. In addition to asking the Superior Court “to assume jurisdiction over this civil action and appeal, ” he also seeks injunctive relief preventing further prosecution of the case against him, and permanent and temporary injunctive relief to protect his substantive and procedural rights. While alleging deprivation of and interference with his constitutional rights by the conduct of the department and arguing in his brief for the recognized property right in his administrative license, he nevertheless does not allege that there has been any deprivation or limitation imposed on it by the department or that he has, in fact, had any sanctions imposed on him.

The department, on the other hand, argues that the plaintiff may not bypass the UAPA exhaustion requirement by filing this self-styled independent civil action. This action, the department argues, does not present a colorable constitutional claim that would suffice to excuse his failure to exhaust his administrative remedies. We agree with the department.

In attempting to circumvent his available administrative remedy by this independent civil action, the plaintiff maintains that he can do this because he is seeking other relief, whether it sounds contract or tort, declaratory judgment or injunctive relief and the like. This approach fails because, on analysis, the factual predicate for his claims relates back to the alleged statutory violations, which provide for a statutory remedy. When the legislature enacts a comprehensive remedial scheme such as the UAPA, with procedural safeguards by which claims are to be determined by an administrative agency before judicial review is made available, it has laid that down as the public policy most likely to produce results. To effectuate this public policy, the legislative intent is that the trial court should not, generally speaking, act or be called upon to act, until there has been compliance with the statutory scheme. Recently our Supreme Court said: “ ‘We have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specific remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure. Norwich v. Lebanon, 200 Conn. 697, 708, 513 A.2d 77 (1986).’ ” Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 623. The plaintiffs independent civil action contravenes this holding. He is attempting, under circumstances that are impermissible, to prevent the making of a proper record of agency action, including a decision on the issues, for proper judicial review. This independent civil action invokes the statement of the United States Supreme Court from McKart, which opinion it is said “contains the Court’s most comprehensive discussion of the exhaustion doctrine.” 2 Davis, Administrative Law Treatise (3d Ed. 1994) § 15.2, p. 308. “In McKart v. United States, [supra, 395 U.S. 194-95], the United States Supreme Court stated that ‘judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise [its] discretion or apply its expertise. . . . [N]otions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. . . . [I]t is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.’ ” See Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 625.

In Housing Authority v. Papandrea, supra, 222 Conn. 423-24, our Supreme Court, quoting Pet v. Dept. of Health Services, supra, 207 Conn. 352, said: “[W]hen a party has a statutory right of appeal from a decision of the administrative agency, he may not, instead of appealing, bring an independent action to test the very issues which the [administrative] appeal was designed to test.” (Internal quotation marks omitted.) See Payne v. Fairfield Hills Hospital, supra, 215 Conn. 679; Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984); Greenwich v. Liquor Control Commission, supra, 191 Conn. 543-44; Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Haddam v. LaPointe, 42 Conn. App. 631, 636, 680 A.2d 1010 (1996); Beninato v. Zoning Board of Appeals, 8 Conn. App. 556, 561, 513 A.2d 201 (1986). A fair parsing of the allegations of this “independent action” indicates that it falls well within the ambit of this settled principle. As we noted earlier, “[s]imply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process”; LaCroix v. Board of Education, supra, 199 Conn. 79; and, in any event, our Supreme Court continues “to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy.” Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 563. Under the circumstances, especially the continuous holding of his license without sanction or diminution of his privileges by the department, the plaintiffs alleged constitutional claims are not even questionably colorable. Moreover, he has an adequate remedy at law under the UAPA that would presently bar any entitlement to injunctive relief. Id., 564; see Pet v. Dept. of Health Services, supra, 371. The trial court properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the department, its commissioner and the hearing officers to whom the plaintiffs case was assigned.

       The plaintiff is the licensed administrator of Pilgrim Manor, a nursing home located in Cromwell and licensed pursuant to chapter 368v of the General Statutes.

       The plaintiffs “motion” challenging the department’s jurisdiction to proceed was made in a letter, dated May 11, 1995, from his attorney to the department. The letter stated, in relevant part: “This letter serves as our formal objection and challenge to the jurisdiction of the State of Connecticut Department of Public Health and Addiction Services (‘DPHAS’) to proceed to a formal hearing which, at this time, may affect Mr. Johnson’s nursing home license. To begin, the formal charges all relate to claimed violations of regulations occurring no later than May, 1992, three years ago. The pertinent statutes and regulations anticipate prompt investigation and proceedings. Conn. Gen. Stat. § 4-182 (c) specifically requires, in part, ‘No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.

        These proceedings shall be promptly instituted and determined. ’
      Contrary to the requirements of Conn. Gen. Stat. § 4-182 (c), DPHAS never provided Robert Johnson with the opportunity to show compliance at any time over the past three years.
      “DPHAS has violated this mandate by instituting formal agency proceedings before the notice and conference under § 4-182 (c). Regulation § 19-2a-14 also requires that prior to the issuance of any complaint, the ‘ . . . commissioner shall afford any licensee an opportunity to show cause why formal charges should not be instituted.’ DPHAS has not complied with its own regulations. Now, DPHAS has already prejudged and determined to pursue formal charges, in violation of Mr. Johnson’s procedural due process rights under regulation and statute. Any conference will be meaningless, as DPHAS has already determined to pursue formal charges.
      “Moreover, in addition to the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.], an essential attribute of due process under both the U.S. Constitution and the State Constitution requires an opportunity to be heard at a meaningful time and in a meaningful manner. See Nielsen v. Kezer, 232 Conn. 65, 652 A.2d 1013, 1025 (1995) (Berdon, J., [concurring]). The opportunity to be heard three years later is neither timely nor meaningful. DPHAS treats the UAPA and its requirement of the notice and conference, as well as its requirement for prompt proceedings, as though the UAPA is only advisory. The UAPA is designed to safeguard due process rights, and strict compliance with its mandate is ‘ . . . necessary to ensure that significant property rights are not unlawfully destroyed.’ Pet v. Department of Health Services, 228 Conn. 651, 638 A.2d 6, 24 (1994).
      “Compliance with the UAPA is also a jurisdictional requirement. A tribunal of limited authority, such as an administrative agency, cannot proceed without compliance. Compliance conditions the power to act. See Stern v. Medical Examining Board, 208 Conn. 492, 502, 545 A.2d 1080 (1988); Castro v. Viera, 207 Conn. 420, 434, 541 A.2d 1216 (1988); Trinkley v. Ella Grusso Regional Center, 220 Conn. 739, 601 A.2d 515 (1992). The formal charges should be dismissed.”

         The September 7, 1995 order of the department hearing officer denying the plaintiffs motion stated, in relevant part, the following: “Having considered the respondent’s motion to dismiss and supporting memorandum, it is hereby ordered that the request is denied.
      “The respondent has not shown that he must be given an opportunity to show compliance prior to the issuance of the statement of charges. The department has provided the respondent with an opportunity to show compliance. The department has jurisdiction to proceed with this action. The department is not estopped from continuing with this action. The present proceedings are not barred by laches. The respondent has not shown a violation of his due process rights.”

       The “Plaintiffs Complaint and Petition on Appeal” contains eight counts which, in totality, contain over sixty numbered paragraphs of allegations.
      The first count alleges the violation of his rights under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., by the past and proposed action of the department, including its violation not only of relevant statutes but also of its own regulations. The second count alleges the breach and repudiation by the department of a prior settlement of the matters in dispute. The third count maintains that estoppel exists against the department because of a prior authorized settlement of matters in dispute. The fourth count attacks the impartiality of the department designated hearing officer as well as alleges that the “present structure and system” violates the plaintiffs right to an impartial hearing officer as well as his due process rights under the federal and state constitutions, and his right to be free “from retaliatory/selective prosecution.” The fifth count alleges his belief that police records that were automatically erased under General Statutes § 54-142a et seq. have been used to develop other information and are intended to be used as evidence at a hearing. The sixth count alleges the department’s failure to provide him a hearing at a meaningful time in violation of the federal and state constitutions, and in violation of his rights under General Statutes § 4-182. The seventh count alleges the failure of the department to comply with his written request for disclosure of all exculpatory information in its possession or control in violation of his federal and state constitutional rights and those under the UAPA. The eighth count is essentially a count that incorporates much of what was earlier alleged, but adds that the totality of the circumstances and the pattern of department actions indicates a retaliatory and bad faith “prosecution against the plaintiff for exercising and insisting on his rights under the law” and that the department should be barred from further prosecution or action and should be responsible for all the plaintiffs losses and damages, including damages to his reputation and standing in the community and in his profession.
      As to his prayers for relief, the plaintiff has set out sixteen. They include eight separate requests for declaratory judgments, that the Superior Court “assume jurisdiction over this civil action and appeal,” that the department hearing officer’s decision of September 7,1995, be set aside and the proceedings before the department be dismissed, that temporary and permanent injunctive relief be entered that is appropriate to protect the plaintiffs substantive and procedural rights and to effect and enforce such declaratory judgments as decreed by the court, that he be awarded money damages consistent with General Statutes § 19a-24, and that he be awarded reasonable attorney’s fees and expenses under General Statutes § 4-184a.

       We cannot say that in his forty-six page trial brief filed in opposition to the department’s motion to dismiss the plaintiff articulates this claim. Even if he had, it has no merit here. Interestingly, in his appellate brief, the plaintiff concedes that “subject matter jurisdiction was the only matter before the court” as well as acknowledging that a motion to dismiss under Practice Book § M3 is the proper vehicle “to assert (1) lack of jurisdiction over the subject matter . . . .”

       General Statutes § 4-182 (c) provides: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”

       General Statutes § 4-183 (b) provides: “A person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.”

       See footnote 4.

       The letter from the department to the plaintiff, dated May 2, 1995, provides in relevant part:
      “Pursuant to § 4-182 (c) of the General Statutes of Connecticut, this is to notify you 1ha1 I have scheduled a conference for 11:30 a.m. on the 11th day of May, 1995, at the Department of Public Health and Addiction Services, 150 Washington Street, Hartford, CT. This conference is to discuss the merits of the case against you alleging:
      1. failure to enforce state regulations with respect to investigating and reporting of allegations of patient mistreatment, neglect and/or abuse;
      2. failure to or cause to submit to the appropriate law enforcement agency, a detailed statement regarding an alleged criminal action by a facility employee toward a patient; and
      3. failure to provide [a] mechanism for monitoring staff activity and preventing patient abuse.
      This office is presently pursuing formal proceedings against you before a duly authorized hearing officer pursuant to § 19a-14 of the General Statutes of Connecticut to seek revocation of your license or other disciplinary action on the grounds that your alleged actions constituted a violation of Department of Public Health and Addiction Services Regulation §19-13-D8t-(f) (3) (A) and §19a-553 of the General Statutes of Connecticut.
      The purpose of this meeting is to discuss the aforesaid alleged violations and to provide you with an opportunity to show compliance and to discuss the possibility of settling this matter without the necessity of holding a formal hearing concerning your alleged misconduct.
      It is not mandatory for you to attend this meeting; however, if you do not attend this meeting, this office will have no recourse but to proceed with a formal hearing on June 1, 1995.
      If you so desire, you may be accompanied by your attorney at such conference.”

       One of these documents is addressed to the plaintiff as “Administrator” and has attached to it fourteen alleged violations of the public health code and General Statutes. At least some of these are asserted by the plaintiff to have been settled. Most of these allegations do refer to some circumstances of the alleged violations. Three refer specifically to what “the administrator failed” to do.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    BONNIE JEAN FORESHAW v. COMMISSIONER OF CORRECTION
    (AC 16276)
    Schaller, Hennessy and Dupont, Js.
    Argued November 10, 1997
    officially released March 17, 1998

      Diane Polan, with whom, on the brief, was John R. Williams, for the appellant (petitioner).

      Rita M. Shair, assistant state’s attorney, with whom were Kevin T. Kane, state’s attorney, and, on the brief, John Dropiek, former assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The petitioner appeals from the trial court’s denial of her petition for a writ of habeas corpus. She claims that the trial court abused its discretion in denying certification to appeal on three of the four issues raised in her petition and improperly denied her ineffective assistance of counsel and equal protection claims. We conclude that the dispositive issue is whether the trial court improperly rejected the petitioner’s claim of ineffective assistance of trial counsel. We affirm the judgment of the habeas court dismissing the petition.

The following facts relevant to this appeal are recited in our Supreme Court’s decision in State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006 (1990). “On the evening of March 26, 1986, Joyce Amos attended a dance at the Jamaican Progressive League, a club located on Albany Avenue in Hartford. At approximately midnight, Amos arranged to get a ride home from an acquaintance, Hector Freeman, and Freeman’s friend, Elmer Pickett. As they left the club, Freeman, who needed some cigarettes, asked Pickett to meet him across the street at a twenty-four hour gas station and convenience store.

“Freeman then walked toward the store and encountered the [petitioner] as he was crossing the street. When Freeman greeted her with the words ‘Hello, Dred,’* the [petitioner] began shouting obscenities at him, claiming that he had ‘disrespected her.’ The [petitioner] continued to swear at Freeman, prompting him to respond in similar language. Meanwhile, Pickett had driven his car into the parking lot in front of the store and Amos had gotten out of the car to join Freeman. Both Amos and Freeman then proceeded into the store.

“Upon walking out of the store, Amos approached the [petitioner] and began talking to her. Freeman soon joined Amos and listened as Amos admonished the [petitioner] for using such vile language. Undaunted, the [petitioner] continued her tirade and eventually disappeared behind a nearby building. She emerged again quickly, however, and pulled from under her coat a .38 caliber pistol. The [petitioner] then screamed at Amos to get out of the way because she intended to kill someone. Almost immediately thereafter, the [petitioner] fired the shot that killed Amos.

“The [petitioner] fled from the scene in her automobile, but was arrested within a short time after the shooting. . . .

“At trial, the [petitioner] took the witness stand in her defense and gave testimony concerning the events that had transpired before, during and after the shooting incident. She explained that on the night of March 26, 1986, she had stopped at the Jamaican Progressive League for a drink. While she was at the club, she had been insulted and embarrassed by Freeman after he unsuccessfully had offered to buy her a drink. She immediately decided to leave the club, but was followed to her car by Freeman and Amos. The [petitioner] testified that, although Freeman did not block her from getting into her car, his presence had threatened her. The [petitioner] claimed further that she had grabbed her gun and deliberately pulled its trigger in response to Freeman’s movements toward her. Upon seeing Amos fall, the [petitioner] immediately drove away and discarded the gun en route so that she would not be caught with it.

“Although the [petitioner] admitted at trial that she had fired the fatal shot, she claimed that she had done so while under the influence of extreme emotional disturbance. In support of this affirmative defense, the [petitioner] presented expert testimony from Anne E. Price, a psychiatrist. Price testified that the [petitioner] had experienced an abusive childhood and had endured two abusive marriages. Price explained that these experiences had affected the [petitioner’s] state of mind at the time of the shooting. She further explained that the [petitioner] suffered from posttraumatic stress disorder, a condition similar to that suffered by certain Vietnam veterans. The condition is caused by a traumatic event, such as persistent abuse, not within the range of usual human experiences. The trauma may cause a person to overreact to relatively benign events or to respond to a situation of danger in an irrational way. Price testified that when the [petitioner] was confronted by Freeman, she had become scared that he would beat her as her husbands had done in the past. Consequently, the [petitioner] became so overwhelmed by panic that she reacted irrationally and impulsively. According to Price, the [petitioner] fired the gun before she could really think about what she was doing.” Id., 542-44.

The following additional facts relevant to the ineffective assistance of counsel claim were found by the habeas court. The petitioner was represented at trial by attorney Dennis O’Toole from the office of the public defender. O’Toole graduated from law school in 1983 and was admitted to practice law in Connecticut that year. He joined the public defender’s office in 1985. Prior to trial, O’Toole met with the petitioner on several occasions, reviewed all available police reports concerning this incident and filed numerous pretrial motions concerning the admissibility of certain evidence and the establishment of fair procedures for the conduct of the trial. In addition, O’Toole interviewed several witnesses, reviewed witnesses’ voluntary statements, studied the report and evaluation of the petitioner performed by Donald R. Grayson, a psychiatrist, and met with Grayson to discuss the report and the specifics of the petitioner’s mental condition.

O’Toole also sought a second psychiatric opinion regarding the petitioner’s mental state from Price. Price concluded that the petitioner’s conduct was influenced by posttraumatic stress disorder. O’Toole acquainted himself with the specific causes and effects of posttrau-matic stress disorder by conducting research at the University of Connecticut Medical Center. O’Toole believed that the petitioner suffered from battered woman’s syndrome. O’Toole considered the use of the defense of self-defense after investigating the circumstances surrounding the crime and speaking with the petitioner, but decided to emphasize the strategy of a lesser included offense based on the petitioner’s extreme emotional disturbance at the time of the shooting.

After a jury trial, the petitioner was found guilty of the crimes of murder, carrying a pistol without a permit and tampering with evidence. The trial court sentenced her to a total effective sentence of forty-five years imprisonment. On direct appeal, our Supreme Court affirmed the conviction. Id., 540.

The petitioner filed a petition for a writ of habeas corpus in April, 1994. After a trial to the habeas court in April, 1996, the petition was denied. Following the decision by the habeas court, the petitioner filed a petition for certification to appeal that raised four issues: (1) whether her trial counsel failed to meet the “recognized standard of competency” in his performance in violation of the sixth and fourteenth amendments to the United States constitution; (2) whether trial counsel improperly failed to present a defense of self-defense; (3) whetiher such defense probably would have been successful; and (4) whether the habeas court applied an “incorrect standard” in assessing her sixth amendment claims.

Pursuant to General Statutes § 52-470 (b), the habeas court acted on the petition for certification as follows: “Questions 1, 2, and 3 are fact questions and have been addressed by the court in its memorandum of decision .... Question 4 is a matter of law and the trial court grants certification incident thereto.” This appeal followed.

The dispositive issue in this appeal is whether the petitioner was denied the effective assistance of trial counsel because her attorney failed to present the defense of self-defense at trial. The petitioner argues that her attorney failed to view the events that transpired on the night in question from her perspective. She claims specifically that because she suffered from battered woman’s syndrome, her belief that she was facing imminent danger from Freeman was reasonable and would support a self-defense argument. We are not persuaded.

To review properly an ineffective assistance of counsel claim, we must apply the two part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on this claim, the petitioner must demonstrate both (1) deficient performance by her attorney and (2) actual prejudice. Id. Applying this test to the facts of this case, we conclude that the petitioner has failed to prove deficient performance by her trial attorney. As a result, we need not consider the prejudice prong.

While it may be true that the petitioner believed that she was in imminent danger from Freeman,, she had a duty to retreat pursuant to General Statutes § 53a-19 (b)* ** before using deadly force in self-defense. A review of the facts in this case indicates that the petitioner had an opportunity to retreat from her perceived attacker and that in fact she did retreat initially. She walked away from Freeman and the victim, went to her car parked some distance away, obtained her gun and returned to the scene. There was evidence that the petitioner screamed at Amos to move away because she intended to kill someone. She then fired the shot that killed Amos.

While the petitioner correctly asserts that the proper test to determine the reasonableness of a defendant’s belief in the necessity of using deadly physical force is an objective-subjective test; see State v. Carter, 232 Conn. 537, 546, 656 A.2d 657 (1995); she fails to recognize the importance of the duty to retreat requirement. Even assuming, arguendo, that the petitioner’s belief that Freeman was about to threaten her with the use of deadly force was reasonable given her mental state as a battered woman suffering from posttraumatic stress disorder, she had a duty to retreat from the conflict to avoid the use of deadly physical force. In this case, she had the opportunity to retreat but after retreating briefly, she obtained her gun and returned to the scene of the conflict to fire the fatal shot. In so doing, she failed to satisfy the duty to retreat requirement. Her trial counsel correctly determined that the facts did not support this defense and correctly decided not to pursue this strategy at trial.

The petitioner points to several psychiatric and legal experts who testified at the habeas hearing, and could have testified at her trial regarding the reasonableness of the petitioner’s belief under the circumstances, given her posttraumatic stress disorder condition. According to their testimony at the habeas hearing, these experts examined the petitioner, reviewed the circumstances surrounding Amos’ death and concluded that there existed a strong case of self-defense. One element that was noticeably lacking from these experts’ proffered testimony, however, was the satisfaction of the duty to retreat. These experts did not offer opinions as to whether the petitioner had an opportunity to retreat or believed that she could have retreated to complete safety as § 53a-19 (b) requires. We conclude, therefore, that their proffered testimony was irrelevant to the crucial issue in this case: the petitioner’s ability to satisfy the duty to retreat prior to using deadly physical force.

We conclude that the habeas court’s determination that the petitioner failed to prove that her counsel’s performance was deficient in this case for failure to present the defense of self-defense was warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       As to the claim of improper denial of certification, we note that the trial court did not specifically deny any of the petitioner’s claims, but merely focused on the fourth issue as one that met the statutory criteria for certification. While the trial court need not have distinguished the issues as being questions of fact or questions of law, the trial court carried out its statutory duties in determining whether an issue constituted a “question . . . which ought to be reviewed by the court having jurisdiction . . . .” General Statutes § 52-470 (b).
      Although the petitioner claims that the trial court applied an “incorrect standard” in ascertaining whether trial counsel was ineffective, the petitioner’s argument does not contain any claim that incorrect law was applied. Rather, her argument relates to the dispositive issue that the trial court incorrectly analyzed the ineffective assistance of counsel claim in terms of fact and law. We therefore address those claims in the course of discussing the dispositive issue.

        We need not address the equal protection claim raised under article first of the Connecticut constitution because this claim is raised, essentially without analysis, for the first time on appeal. See Giannotti v. Warden, 26 Conn. App. 125, 126 n.1, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993).

       “Testimony indicated that the defendant was a Rastafarian and wore her hair in long [dreadlocks].” State v. Foreshaw, supra, 214 Conn. 542 n.4.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       General Statutes § 53a-19 (b) provides in relevant part that “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling ... or place of work and was not the initial aggressor


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. RONALD VASQUEZ
    (AC 16118)
    Lavery, Landau and Spallone, Js.

      Argued January 16
    officially released March 17, 1998

      J. Brendan Sharkey, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Ronald Vasquez, appeals from the judgment of conviction, following a jury trial, of sale of narcotics in violation of General Statutes § 21a-277 and possession of narcotics in violation of General Statutes § 21a-279 (a) as a lesser included offense of possession of narcotics within 1500 feet of a school. General Statutes § 21-279 (d).

The jury reasonably could have found the following facts. In March and April, 1995, the Waterbury police department conducted a surveillance operation in a section of the south end of the city where there was known to be a high incidence of drug activity. A target of this operation was a bar, the Dixie Cafe, located less than 1500 feet from a school for children in prekindergarten through fifth grade.

The Waterbury police utilized Ezekial Laureano, a Hartford police officer, to purchase narcotics as an undercover agent. On April 5,1995, Laureano proceeded to the Dixie Cafe to purchase drugs. As he neared the entrance of the bar, Laureano was approached by the defendant who asked him if he was looking for “man-teca,” a street name for heroin. Laureano stated that he needed a $20 bag, whereupon the defendant entered the bar and told Laureano to stay outside. The defendant returned a few minutes later and handed Laureano a small glassine bag containing a white powdery substance and stamped with the brand name of “Total Control,” for which Laureano paid $20. The bag was sent to the state toxicology laboratory where it was found to contain both heroin and cocaine, the predominant narcotic being heroin. Following the April 27,1995 issuance of a warrant, the defendant was arrested.

The defendant’s sole claim on appeal is that the trial court improperly instructed the jury on the crime of possession of narcotics in violation of § 21a-279 (a), as a lesser included offense of possession of narcotics within 1500 feet of a school in violation of § 21a-279 (d). We disagree and find the defendant’s claim to be without merit.

At the close of the evidence, the defendant moved for a judgment of acquittal on the second count of the information, arguing that the state failed to prove a necessary element of the offense, i.e., that he was not a student at the school located within 1500 feet of the transaction. The court granted the motion, stating that “while at first impression it might appear that [the defendant], who is an adult of some thirty-plus years, could not be an elementary school student, under our education law it is possible for him to be an adult student in the school. See General Statutes § 10-69. Thus, the jury could resolve this issue of student enrollment only by resort to speculation. Since we find the body of evidence legally insufficient for jury consideration, we granted the motion as to the principal offense ... as set forth in count two.”

The state then requested the trial court to instruct the jury on the crime of possession of narcotics in violation of § 21a-279 (a) as a lesser included offense of the charge that had been removed from the jury’s consideration. Specifically, the state argued that with the exception of the requirement in § 21a-279 (d) that the possession occur within 1500 feet of a school, the elements of the two crimes were the same. We agree with the state.

“It is a well-settled principle of constitutional law that where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses.” State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980). Moreover, when a court grants a defendant’s motion for acquittal and orders the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty, “[sjuch judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty.” Practice Book § 883.

“The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.” State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986). This test is satisfied if the lesser offense does not require proof of any element that is not needed to commit the greater. State v. Greco, 216 Conn. 282, 292, 579 A.2d 84 (1990); State v. Castro, 196 Conn. 421, 428, 493 A.2d 223 (1985).

In this case, in order to convict the defendant of possession of narcotics within 1500 feet of a school where the defendant is not a student, the elements of possession of narcotics initially must be proven. The element of possession within 1500 feet of a school by a nonstudent is the added element required to constitute a violation of § 21a-279 (d). Simply put, the crime of possession of narcotics within 1500 feet of a school by a nonstudent cannot be committed unless the defendant possesses narcotics in violation of § 21a-279 (a).

In sum, the trial court, after granting the defendant’s motion for acquittal as to the crime of possession of narcotics within 1500 feet of a school, properly instructed the jury on the lesser included offense of possession of narcotics.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 provides in relevant part: “(a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. . . .

        “(d) Any person who violates subsection (a), (b) or (c) of this section in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a), (b) or (c) of this section. ...”

       We agree that where an ordinary lesser included offense is concerned, “[f]or double jeopardy purposes, a lesser included offense and the greater offense are considered to be one offense. Brown v. Ohio, [432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)]; State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979).” (Internal quotation marks omitted.) State v. Foster, 45 Conn. App. 369, 385-86, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).
      The statutory language here, however, malees clear that subsections (a) and (d) of § 21a-279 are separate offenses. The statute specifically provides that the sentence for a violation of subsection (d) “shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a), (b) or (c) of this section.” Thus, there would not be a double jeopardy violation if a defendant was tiled on both the lesser included offense and the greater offense, as they are separate offenses in the context of this statute. See State v. Patrick, 42 Conn. App. 640, 645-47, 681 A.2d 380 (1996).


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. DAVID BISPHAM
    (AC 15820)
    O’Connell, C. J., and Spear and Freedman, Js.
    Argued December 5, 1997
    officially released March 17, 1998

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, ax\d Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), sexual assault in the second degree in violation of General Statutes (Rev. to 1993) § 53a-71 (a) (l) and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On appeal, the defendant claims that the trial court improperly (1) summarized the parties’ evidence during its charge to the jury in a manner unduly favorable to the state and (2) admitted the victim’s written statement as constancy of accusation evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of November 19, 1993, the defendant was at an apartment shared by his girlfriend, Carmen, and her friend, Markeesha. Also present were Markeesha’s boyfriend, Patrick, and Markeesha’s fifteen year old sister, the victim. At approximately midnight, the victim, who had first tried to share a makeshift bed in the living room with Carmen and the defendant, went into a bedroom to sleep alone. At approximately 7 a.m., the defendant, wearing only boxer shorts, entered the room where the victim was sleeping. The victim awoke when the defendant began kissing her. As the victim protested, the defendant covered her mouth with his hands and pinned down her arms with his elbows. He then engaged in sexual intercourse with her.

The defendant left the apartment soon afterward, and the victim reported the assault to Markeesha and Carmen. Carmen called the police, who arrived a short time later, and an officer interviewed the victim. The police located the defendant at his residence in Hartford and arrested him. The victim was taken to Mount Sinai Hospital in Hartford where she was examined by hospital staff members. They collected evidence using a rape kit and completed an emergency room medical report. A police officer interviewed the victim a second time and she gave a written statement concerning the assault. Additional facts will be discussed as the context requires.

I

The defendant first claims that the trial court summarized the scientific evidence presented by the parties in a manner that was unduly favorable to the state. In support of this claim, he makes two assertions. First, the defendant claims that the trial court inaccurately characterized the testimony of the state’s expert witness as firmly concluding that the apparent inconsistencies in the results of the victim’s rape kit tests were caused by the hospital’s testing procedure. Second, the defendant claims that the trial court failed to instruct the jury on several findings made by the defendant’s expert witness and misstated other portions of that witness’ testimony. We will address these two claims in turn.

A

The defendant first claims that the trial court inaccurately characterized the testimony of the state’s expert witness, Sanders Hawkins, bureau chief for the Connecticut department of health laboratory, as definitively concluding that the apparent inconsistencies in the results of the victim’s rape kit tests were caused by the hospital’s testing procedure.

At trial, the state presented Hawkins to testify regarding the results of the rape kit tests performed on the victim. He explained that depending on the procedure followed by the hospital in administering the rape kit tests, it was not necessarily inconsistent for there to be no evidence of seminal fluid found on the cotton swabs used on the victim, although sperm cells were detected on the victim’s smear slides.

After both parties presented their closing arguments, the trial court summarized some of the testimony of the expert witnesses as part of its instructions to the jury. The defendant took exception to the trial court’s treatment of Hawkins’ testimony, asserting, “Specifically, Your Honor recited that [Hawkins] gave his opinion that the reason for the absence of semen from the swab was the procedure you described, the repeated use of the swab and the wiping off of the seminal material or that it might not have come into contact with that area of the vagina in which seminal material was present. [Hawkins] testified that that sometimes happens, that it can happen. But he certainly and he directly admitted on my cross-examination that he had no basis to conclude that that is, in fact, what happened here. Merely that it is a possibility that sometimes occurs.”

The standard of review of jury instructions is well established. The trial court has broad discretion to comment on the evidence. State v. Marra, 222 Conn. 506, 538, 610 A.2d 1113 (1992). “A charge to the jury is not to be critically dissected nor are individual instructions to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Taylor, 196 Conn. 225, 231, 492 A.2d 155 (1985). In State v. Rumore, 28 Conn. App. 402, 411, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992), this court stated that “[a] trial court often has not only the right, but also the duty to comment on the evidence. . . . Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter. . . . The test of a court’s instruction is whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted.)

Here, the trial court began its jury instructions by stating, “You [the jurors] are the sole judges of the facts. No matter what the attorneys have said concerning the facts, and no matter what I may say concerning the facts, it’s your recollection of the facts which must guide you in determining the case.” The trial court then summarized the testimony of Hawkins as follows: “As I recall, the testimony of Dr. Hawkins was that ... he did have an opinion concerning the fact that the vaginal swab had no semen. And his opinion was that when the swab was used it was wiped off onto the smear and had, therefore, wiped off the semen that was on the swab. Or that the swab was used in an area of the vagina where semen was not present.” At the end of its instructions to the jury, the trial court again underscored the jury’s fact-finding role, stating, “I’ve referred to certain evidence only to attempt to illustrate my instructions of law. I have not meant to emphasize certain evidence or to avoid the mention of other evidence. You must consider all the evidence and where your recollection differs from mine, it’s your recollection that must decide the case." (Emphasis added.)

The testimony of Hawkins was clear that he did not have conclusive information as to why there was no seminal fluid on the vaginal swab. Any misstatements the trial court may have made concerning Hawkins’ testimony, however, were presumably cured by the court’s repeated charge that the jury’s recollection of the evidence controlled. We conclude that the court’s comments, if inaccurate, were not such as to warrant a new trial. See State v. Butler, 207 Conn. 619, 629-30, 543 A.2d 270 (1988); State v. Pollitt, 205 Conn. 132, 156-57, 531 A.2d 125 (1987).

B

The defendant next claims that the trial court unduly favored the state’s case by failing to instruct the jury on several conclusions drawn by the defendant’s expert witness, Richard Cunningham, senior forensic scientist at Lifecodes Corporation, and by misstating other portions of Cunningham’s testimony. Specifically, the defendant asserts that during its charge to the jury, the trial court improperly (1) omitted Cunningham’s testimony regarding the absence of one of the defendant’s genetic markers from the victim’s vaginal swab, (2) omitted Cunningham’s testimony on the possible origins of the unknown genetic marker found on the victim’s swab and (3) commented that Cunningham had referred to the presence of the unknown genetic marker as “insignificant.” We decline to review these contentions because none was preserved at trial.

At trial, the defense presented Cunningham, who had performed comparative DNA testing on specimens from the victim and the defendant. He testified that the vaginal swab taken from the victim did not exhibit a certain genetic marker that was present in the defendant’s blood sample, but that it did exhibit a very faint genetic marker that was not present in either the victim’s or the defendant’s blood samples. He also stated that the presence of this foreign genetic marker was not significant because it was so faint and, as such, was to be “interpreted with caution” according to the manufacturer of the rape kit.

After the trial court charged the jury, the defendant made no request for a further charge to rectify the trial court’s alleged omissions regarding Cunningham’s testimony. In addition, the defendant did not directly object to the trial court’s statement that Cunningham had characterized the unknown genetic marker as “insignificant.” Instead, the defendant merely protested that the trial court’s treatment of Cunningham’s testimony was “extremely limited” and “inaccurate.” These complaints raised by the defendant were not sufficiently distinct to preserve this portion of his claim on appeal. State v. Streater, 36 Conn. App. 345, 359, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995); see also Practice Book § 4061. This court has declared that a defendant must “ ‘state distinctly the matter being objected to immediately after the conclusion of the charge’ ” for his claim of error to be reviewable on appeal. State v. Streater, supra, 359.

Further, the defendant’s unpreserved claim concerning the trial court’s jury charge on the genetic marker evidence is not entitled to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the claim is not of constitutional magnitude. “It is not a constitutional issue because it related solely to the jury’s consideration of a piece of evidence. The instruction was purely evidentiary in nature. . . . Under these circumstances, review of this claim under Golding is inappropriate.” (Citation omitted.) State v. Smart, 37 Conn. App. 360, 376, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995). The defendant’s claim, being evidentiary in nature, fails to satisfy the second prong of Golding, which requires that it be constitutional in nature.

II

The defendant’s second claim on appeal is that the trial court improperly admitted the victim’s written statement as constancy of accusation evidence. At trial, the state presented Francis Hynes, a Hartford police officer who interviewed the victim regarding the assault, as a constancy of accusation witness. Hynes first testified as to the victim’s account of the assault during his interview of her at Carmen’s apartment. Hynes then testified that he had interviewed the victim a second time at Mount Sinai Hospital, where he took a written statement from her regarding the assault. The state did not ask Hynes to testify from memory as to the substance of the victim’s written statement, but asked him to read the statement directly to the jury. The defendant objected, arguing that the constancy of accusation evidence doctrine did not authorize the admission of a victim’s sworn statement to a police officer “after the officer has been allowed to testify orally to the substance of what was told. This is simply piling consistent statement upon consistent statement . . . .” The trial court overruled the objection and allowed Hynes to read the statement to the jury.

We construe the defendant’s objection at trial as an objection to both the form and the substance of the victim’s written statement. The defendant also claims that his right to confront and cross-examine the victim under the confrontation clause of the sixth amendment to the United States constitution was violated by the trial court’s admission of the victim’s written statement as constancy of accusation evidence. We address each claim in turn.

A

The defendant first challenges the substance of the victim’s sworn statement, asserting that it should not have been admitted as constancy of accusation evidence because it was an unfair “piling on” of the victim’s consistent statements. We do not agree.

We begin by noting that the admissibility of evidence under the constancy of accusation doctrine is an evidentiary question that “ ‘will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ ” State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). The defendant has not demonstrated that the trial court abused its discretion by admitting Hynes’ testimony as to the victim’s written statement or that he was substantially prejudiced by such testimony.

The defendant appears to argue that the victim’s written statement was a mere repetition of Hynes’ previous testimony recalling the victim’s account of the assault given at the apartment and, therefore, was improperly admitted as constancy of accusation evidence. “The constancy of accusation doctrine has its origins in common law. Since 1876, statements admitted under the constancy of accusation theory have been labeled by Connecticut courts as exceptions to the hearsay rule, and admitted only as corroborative evidence to strengthen the credit of the principal witness by showing constancy in her declarations.” (Internal quotation marks omitted.) State v. Bethea, 24 Conn. App. 13, 18, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). Prior to our Supreme Court’s decision in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), constancy of accusation evidence was admissible in this state. “So long as the victim has testified to the occurrence of a sexual assault and identified those to whom she has reported the assault, those persons may testify as to the substance of their conversations with the victim regarding the alleged sexual assault. This testimony is admissible for the limited purpose of ascertaining the credibility of the victim’s own testimony.” State v. Beliveau, 237 Conn. 576, 593, 678 A.2d 924 (1996).

The victim twice described the assault to Hynes, once at Carmen’s apartment and later at the hospital. The defendant argues that the victim’s written statement should not have been admitted because Hynes had already testified as to the substance of that statement. On the contrary, Hynes had testified previously only as to the victim’s report of the assault as described to him at the apartment. Because Hynes had not related the victim’s account of the assault given to him at the hospital, we conclude that the trial court properly admitted the victim’s written statement as constancy of accusation evidence.

Moreover, even if we were to consider the admission of the statement improper, the defendant has not established substantial prejudice or injustice. State v. Alvarez, supra, 216 Conn. 306. “ ‘It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.’ ” State v. Marshall, 45 Conn. App. 66, 78, 694 A.2d 816, cert. granted on other grounds, 241 Conn. 925, 697 A.2d 361 (1997), quoting Swenson v. Sawoska, 215 Conn. 148, 155, 575 A.2d 206 (1990). In this case, the victim’s written statement was merely cumulative of other constancy of accusation evidence provided by the testimony of the victim’s sister, Hynes and Plummer Carroll, a Hartford police officer, and by the admission of the hospital emergency room medical report. In sum, we conclude that the trial court did not abuse its discretion or substantially prejudice the defendant in admitting the victim’s written statement.

B

The defendant next challenges the form of the victim’s sworn statement, asserting that it should not have been admitted as constancy of accusation evidence because it was written, not tape recorded. We do not agree.

To support his position, the defendant relies on State v. Bethea, supra, 24 Conn. App. 13, in which this court upheld the admission of a sexual assault victim’s tape-recorded police statement as constancy of accusation evidence. The Bethea court noted that “[tjhere could be no better evidence as to what the victim told [the police detective] than a [tape-recorded] statement in the victim’s own words and voice as to the events that she described to him.” Id., 20. Our Supreme Court, in deciding to allow the substantive use of prior signed, written inconsistent statements, has also commented that prior written and tape-recorded statements are often more reliable than a witness’ prior oral statements. See State v. Whelan, 200 Conn. 743, 752-54, 754 n.9, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

In his brief, the defendant asserts that Bethea allows the admission of tape-recorded, but not written, statements as constancy of accusation evidence because written statements may contain the victim’s “self-serving written account of events in different language.” We believe this to be an illogical distinction and one not dictated by Bethea. If a victim’s tape-recorded statement is admissible because it is more reliable than the police officer’s recollection of what the victim said, it follows that a victim’s written statement, recorded contemporaneously by the officer, will also be more reliable than the officer’s recollection. We conclude, therefore, that the trial court properly admitted the victim’s statement as constancy of accusation evidence.

C

The defendant’s third assertion is that the trial court violated his right to confront the victim under the sixth amendment to the constitution of the United States by admitting the victim’s written statement as constancy of accusation evidence. We decline to review this portion of the defendant’s claim because it was not preserved at trial and is not entitled to review under State v. Golding, supra, 213 Conn. 239-40. Our Supreme Court has held that claims concerning the admission of constancy of accusation evidence are evidentiary rather than constitutional in nature and therefore do not merit Golding review. State v. Kelley, 229 Conn. 557, 564-65, 643 A.2d 854 (1994); State v. DePastino, 228 Conn. 552, 567-68, 638 A.2d 578 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical ipjury to such person or a third person . . .

       General Statutes (Rev. to 1993) § 53a-71 (a), as amended by Public Acts 1993, No. 93-340, § 2, provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under Hie age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The state asked the following questions and elicited the following answers from Sanders Hawkins, its expert witness, who was the bureau chief of the state department of health laboratory:
      “Q. Would you describe the findings for the smears and the swabs as inconsistent?
      “A. Normally, yes.
      “Q. In this case would you describe them as inconsistent?
      “A. Not necessarily.
      “Q. Why not?
      “A. If, in fact, when the person presented herself at the hospital there are a couple of things that could have happened and different procedures are followed at different hospitals. Some—
      “[Defense Counsel]: Your Honor, I’m going to object ....
      “The Court: Exception may be noted. You may continue, doctor.
      “A. At some hospitals when specimens are taken the nurse or physician will taire the specimen with one swab and make the smear from that swab. And he does this by inserting the swab into the vagina, trying to collect material on it and taking it out and pressing that cotton tip onto the slide. Some hospitals also use that same slide—that same swab to prepare a slide for themselves to determine whether or not motile sperm are present. That may or may not be the same swab that’s sent to my laboratory for analyses. And what he might do is take another swab and go into the vagina and then send that swab to me for analyses for the acid phosphates. So even though it may appear to be inconsistent that we found sperm on the swab and no acid phosphates on the swab, it could have been that either he removed most of the material in making the smear from the swab, leaving very little there to do my analyses. Or he sent me a separate swab and when he collected the specimen, missed the area where the seminal fluid might have been inside the vagina.”

         Cunningham explained that every person’s unique genetic pattern is composed of specific genetic markers.

       “ [A] defendant: can prevail on a claim of constitutional error not preserved at. trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant, apparently in recognition of the fact that the claim is not constitutional, did not request Golding review.

       In State v. Troupe, supra, 237 Conn. 284, our Supreme Court, restricted the doctrine so that a constancy of accusation witness may testify only as to the fact and timing, and not as to the details, of the victim’s complaint. Id., 304. The court, held, however, that the modification to the rale would operate prospectively. Id., 305. Troupe does not affect the present case because it had not been decided as of the defendant’s trial. Id.

       Again, the defendant did not request Golding review of this issue.

       We note that our Supreme Court has specifically rejected the claim that the admission of constancy of accusation evidence violates a defendant’s confrontation rights. State v. Troupe, supra, 237 Conn. 290-93.