author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. JOSEPH N. DWYER, SR.
    (AC 18315)
    Foti, Lavery and Schaller, Js.

      Argued February 28
    officially released August 8, 2000

      Aaron J. Romano, special public defender, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The defendant, Joseph N. Dwyer, Sr., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4). He claims that (1) the state’s attorney engaged in prosecutorial misconduct that deprived him of his constitutional right to a fair trial and (2) the trial court improperly instructed the jury regarding intent. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On March 21, 1995, the defendant entered a Glastonbury convenience store, wearing a disguise and displaying a firearm. He announced to the employee on duty that he was conducting a “stickup” and requested all the money from the cash register. The employee refused to cooperate and instead telephoned the Glastonbury police department. The defendant then drove away at a normal rate of speed in a vehicle that had a bag partially obscuring the rear license plate. The defendant was apprehended a short while later by Glastonbury police officers and charged with attempt to commit robbery.

At the time of the incident, the defendant was a Hartford police officer who was not assigned to active duty because he was receiving his full salary as a result of a workers’ compensation claim. While he was a member of the police department, he received special training in crime prevention and advised merchants about security measures.

For several years prior to the robbery incident, the defendant had been treated for depression and substance abuse problems. During the months immediately preceding the robbery attempt, the defendant went through a divorce and was experiencing financial problems. On the night of the incident, the defendant consumed several alcoholic beverages and had taken three prescription medications: Fiorinal with codeine, Xanax and Wellbutrin.

At trial, the defendant asserted that he was not responsible for the attempted robbery because his intoxication, which resulted from the combination of alcohol and medication, prevented him from forming the specific intent required to commit that crime. On the basis of its verdict, the jury did not find that the defendant was unable to form the requisite intent. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendant first claims that the state’s attorney committed prosecutorial misconduct during her cross-examination of his expert witness and during the state’s closing argument, thereby effectively depriving him of his right to a fair trial under article first, §§ 8 and 9, of the constitution of Connecticut, and the fifth and fourteenth amendments to the United States constitution.

The following additional facts are necessary for the resolution of this claim. At trial, the defendant presented the testimony of an expert witness, Austin McCawley, his treating psychiatrist, to establish that at the time of the robbery attempt, the defendant was unable to form the requisite intent because he was under stress, had taken prescribed medications and had consumed alcoholic beverages. McCawley testified that he believed that the defendant did not have control over his conduct at the time of the criminal activity.

During cross-examination, the state’s attorney inquired as to whether McCawley was aware of a report prepared during the defendant’s treatment at the Institute of Living in Hartford (institute) and that the defendant had stated to the institute staff that he had had a blackout, which he saw as protection from criminal liability. McCawley responded that he was not aware that the defendant had made that statement. The state’s attorney also asked whether McCawley was aware that the defendant had described himself to the institute staff as someone who was able to deceive people. McCawley responded that “[h]e may have done that.”

The defendant did not object to either of those questions and answers, and he focused on the report during his redirect examination of McCawley. During closing argument, the state’s attorney referred to McCawley’s testimony, stating that McCawley had not known that the defendant had told staff at the institute that because of his claimed blackout, he had “this liability thing covered” and that he was “able to deceive anyone.”

Because the defendant did not raise the allegations of prosecutorial misconduct at trial, he can obtain review on appeal only under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. “When the verdict in a criminal case is challenged on the basis of allegedly prejudicial remarks made by the prosecutor, the defendant bears the burden of proving such prejudice within the context of the trial as a whole.” (Internal quotation marks omitted.) State v. Shanks, 34 Conn. App. 103, 109, 640 A.2d 155, cert. denied, 229 Conn. 921, 642 A.2d 1216 (1994). “It is well established that [w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Perry, 58 Conn. App. 65, 69, 751 A.2d 843 (2000); see State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996); State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994). After a careful review of the record, we conclude that the state’s attorney’s questions to McCawley and her comments during closing argument did not so infect the trial with unfairness as to deny the defendant his rights to a fair trial. Accordingly, his claim fails to satisfy the third prong of Golding. See State v. Banks, 58 Conn. App. 603, 620-21, 755 A.2d 279 (2000).

Because this claim, however, involves an evidentiary matter; see State v. Henry, 27 Conn. App. 520, 529, 608 A.2d 696 (1992); we note that “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993). “The trial court has broad discretion in ruling on the admissibility of evidence .... The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 56 Conn. App. 182, 188, 742 A.2d 387 (1999), cert. denied, 252 Conn. 927, 746 A.2d 791 (2000). The court also has “broad discretion in determining the scope of cross-examination”; State v. Cooper, 227 Conn. 417, 431, 630 A.2d 1043 (1993); and questions “designed to rebut, impeach, modify, or explain direct testimony [are] within the scope of the direct examination.” (Internal quotation marks omitted.). Id., 432. A prosecutor, however, may not appeal to the emotions, passions or prejudices of jurors, and should not inject extraneous matters into a case that divert the jury from its duty to decide the case solely on the evidence presented. State v. Williams, 41 Conn. App. 180, 187, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

The defendant requests us to conclude that the questions posed to McCawley by the state’s attorney and her reference in closing argument to his answers constituted a pattern of prosecutorial misconduct warranting reversal of the judgment of conviction. The questions by the state’s attorney, however, were proper to verify the basis for McCawley’s opinion and to test his knowledge regarding the defendant. They were not designed to distract the jury or to appeal to its emotions.

During the state’s attorney’s cross-examination of McCawley, the following colloquy occurred:

“[Assistant State’s Attorney]: “[A]re you aware, sir, that when the defendant spoke with the medical personnel in the [institute] ... he told them that he saw his blackout as some protection from liability?

“[Witness]: I don’t recall him saying that.

“[Assistant State’s Attorney]: Okay. You’re not aware of that?

“[Witness]: No.

“[Assistant State’s Attorney]: And are you aware of the fact that when he spoke with them . . . that he described himself as someone who was able to deceive anybody?

“[Witness]: He may have done that, yes.”

The defendant did not object to this line of questioning. In fact, the defendant asked about the report during his direct examination of McCawley and farther inquired about it on redirect. “[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party.” (Citations omitted; internal quotation marks omitted.) State v. Fuller, 56 Conn. App. 592, 621, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 (2000).

The questions posed by the state’s attorney during cross-examination of McCawley were proper because they were responsive to McCawley’s direct testimony. The defendant introduced the issue of his mental state, and he presented expert testimony from McCawley that he was unable to form the requisite intent to commit the crime charged. To respond to that testimony, the state properly was allowed to question the basis for McCawley’s conclusion and to test his knowledge. Accordingly, we are persuaded that the state’s attorney did not commit misconduct and that the court did not clearly abuse its discretion in permitting McCawley’s testimony. Additionally, the state’s attorney’s remarks during closing argument regarding that evidence were reasonable in light of the evidence and, therefore, were not improper.

Prior to the court’s instructions to the jury, the court asked both counsel whether they had anything they wanted to bring to the court’s attention. The defendant’s counsel responded, “No.” Accordingly, the defendant made a tactical choice to decline to request curative instructions.

On the basis of our review of the questions by the state’s attorney during cross-examination of McCawley and her comments during closing argument, we conclude that the defendant can not establish that there was a violation of his constitutional rights to a fair trial. See State v. Henry, supra, 27 Conn. App. 529.

The defendant also cannot prevail under the plain error doctrine. See Practice Book § 60-5. “[R]eview under 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 proceedings.” (Internal quotation marks omitted.) State v. Niemeyer, 55 Conn. App. 447, 457-58, 740 A.2d 416, cert. granted on other grounds, 252 Conn. 916, 917, 744 A.2d 437, 747 A.2d 517 (1999). Additionally, the claimed error must be both clear and harmful enough such that a failure to remedy the error would result in manifest injustice. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). The defendant’s claim does not meet that standard.

II

The defendant next claims that the court improperly instructed the jury regarding intent. The defendant claims that the instruction was inadequate because the court explained that the jury must find that he was so intoxicated that he could not form either the specific intent or general intent associated with the crime before it could consider the negating effect of intoxication. We do not agree.

The defendant did not raise this claim to the trial court and therefore, as in part I of this opinion, he may seek review only under the Golding or plain error doctrines. Because the record is adequate for review and the alleged violation is of constitutional magnitude involving the defendant’s right to due process, we must determine whether the defendant has met his burden of establishing, pursuant to the third prong of Golding, that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 239-40.

In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must determine “whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Griffin, 253 Conn. 195, 206, 749 A.2d 1192 (2000). “To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict. . . . The test that we apply to any part of a charge is whether the charge as a whole presents the case to a jury in such a manner that no injustice is perpetrated.” (Citation omitted.) State v. Walsh, 52 Conn. App. 708, 721, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). “[R]eversal [is required] only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Sanders, 54 Conn. App. 732, 740, 738 A.2d 674, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999).

According to the defendant, the court failed to instruct the jury properly on the issue of intent, which is an essential element of the crime of attempt to commit robbery, thereby violating his constitutional rights to due process. A proper charge as to this element would instruct the jury that if it found that the defendant was too intoxicated to form the specific intent to commit the crime, then the fact that he was intoxicated could be used to negate that element, but that no matter how intoxicated the defendant was, intoxication could not be used to negate the element of general intent. The defendant claims that the court’s instruction impermis-sibly informed the jury that it must find that he was so intoxicated that he could not form either the specific intent or general intent associated with the crime before it could consider the negating effect of intoxication.

When the court completed its charge to the jury, the defendant did not except to the court’s language regarding specific and general intent. The jury began its deliberations the next day. Shortly thereafter, the court received a note from the jury regarding the definitions of diminished capacity, intent, intoxication and voluntary. The court then issued a supplementary charge. The defendant did not object to this supplemental charge or to a third supplemental charge delivered later that day. Nevertheless, the defendant now points to isolated portions of the jury charges in support of his claim that he was deprived of his constitutional rights to a fair trial.

Our review of the charge as a whole, however, reveals that it is not reasonably possible that the jury was misled as to the state’s burden of proof on the element of specific intent and the relationship of intoxication to that burden. At the beginning of its instruction, the court reminded the jury that the defendant is presumed to be innocent, that the burden is on the state to prove beyond a reasonable doubt all of the elements of the crime of attempted robbery and that the defendant is not required to prove his innocence. The court then instructed the jury on the affirmative defense of mental disease or defect, explaining that the defendant can establish this defense by a mere preponderance of the evidence. The court thereafter instructed the jury as to intent, reiterating that it is the state’s burden to prove beyond a reasonable doubt that the defendant had the requisite intent at the time of the crime. The court then discussed the subject of intoxication, reminding the jury that the defendant asserted that he was too intoxicated to have formed the specific intent elements of the crime. Finally, the court instructed the jury as to the elements of the crime of attempt to commit robbery in the first degree, explaining that the crime requires that, at the time of the incident, the defendant acted intentionally and with the required specific intent to commit the crime of robbery and that he specifically intended to deprive another of property.

Although a few statements in the jury charge, in isolation, may have been incorrect, jury instructions “are not to be judged in artificial isolation from the overall charge. . . . [A]n error in the [charge] requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citation omitted; internal quotation marks omitted.) Id., 740. The jury charge, as a whole, reveals that the court properly instructed the jury that intoxication could be considered in determining whether the state had established the requisite intent. The court explained the statutory definition of intoxication contained in General Statutes § 53a-7 and clearly explained the role of intoxication evidence in negating the element of intent required for conviction of a specific intent crime. The court also instructed the jury that the defendant did not have to prove he was too intoxicated to form the necessary intent, but rather that the state retained the burden of proving beyond a reasonable doubt the issue of intent as well as all of the other elements of the crime.

The charge, read in its entirety, clearly demonstrates that the court unequivocally stated that the state has the burden of proving that the defendant had the specific intent to commit robbery in the first degree and that if the jury found that the defendant was intoxicated at the time of the commission of the crime, it then could determine that his voluntary intoxication negated that intent. Moreover, the court instructed the jury that if it determined that the defendant was too intoxicated to have formed the specific intent required to commit the crime of attempted robbery, it must acquit him of that charge. Accordingly, the court did not inform the juiy, as the defendant asserts, that it must find that the defendant was too intoxicated to have formed the general and specific intent elements of the crime before it could consider the effect of the intoxication upon intent.

Not fewer than seventeen times in its initial instruction and not fewer than eight times in its supplemental instruction did the court properly instruct the jury as to the state’s burden to prove beyond a reasonable doubt that the defendant acted with the required specific intent to commit the crime of attempt to commit robbery. The court, therefore, adequately informed the jury that the state had the burden of proving that the defendant possessed the requisite intent. The jury was repeatedly instructed on the requirements of finding specific intent as an element of the crime and that the state had the burden of proving that element beyond a reasonable doubt. We are persuaded that the challenged instructions, when considered in the context of the entire charge, neither created an unlawful threshold for the jury’s consideration of intoxication nor weakened the state’s burden of proof as to specific intent. The jury, therefore, could not reasonably have been misled as to either the state’s burden of proof on the element of intent or the effect of the defendant’s evidence of intoxication in determining whether the state proved the requisite intent beyond a reasonable doubt.

We are persuaded, on the basis of our review of the court’s charge in its entirety, that the jury instructions as to intent were proper. Accordingly, the defendant has failed to demonstrate that a violation of his constitutional rights clearly occurred and clearly deprived him of a fair trial. His claim, therefore, fails to satisfy the third prong of Golding. Further, the defendant’s claim fails to meet the stringent criteria of the plain error doctrine. See Practice Book § 60-5.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the land of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does . . . anything which, under the circumstances as he believes them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 ... he or another participant in the crime ... (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol ... or other firearm . . . .”

       The employee testified that the defendant emanated an odor of alcohol, but that his tone was calm, and that he spoke with no slurred speech and had no trouble balancing himself.

       The defendant testified that he did not know how many drinks he consumed or how many pills he took that night.

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right to . . . trial by an impartial jury. No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “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 added.)

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       During closing argument, the state’s attorney argued as follows: “[McCawley] also doesn’t know . . . that when the defendant went into the [institute] that he told those folks there, ‘Oh, yeah, I got this liability thing covered on this. I’m going to say I had a blackout.’ And he also tells them that he’s able to deceive anyone.”
      The defendant then objected, arguing, “That’s not in evidence at all.” The state's attorney responded by pointing out that McCawley had testified that he was unaware of those statements. The court then reminded the state’s attorney that she could comment only on the evidence. The state’s attorney then continued her closing argument.
      After both sides completed their closing arguments, the defendant reiterated his objection to the portion of the state’s argument quoted above. The court then reminded the defendant that the questions posed to McCawley and his responses were not objected to. The following colloquy then occurred:
      “[Defense Counsel]: [The assistant state’s attorney] has a right to do that ....
      “The Court,: So, it’s not being offered as something the defendant says. It’s simply being . . . referred to as a fact that [McCawley] was not aware of, that aspect of it.
      “[Defense Counsel]: Eight. . . .
      “The Court: “[A]ll counsel stated was what [McCawley] said in response to [her] question. And the question and the response [were] before the jury during the course of the trial. . . .
      “[Assistant State’s Attorney]: [A]ll I have done in argument is to repeat something which I asked which was not objected to during the course of the trial.
      “The Court: Yes. . . . Well, I certainly understand [defense counsel’s] point. But I think that [the assistant state’s attorney] can comment on the testimony of [McCawley] in terms of the question asked . . . and the answer [given]. . . . [And] if there is some sort of [an] instruction you wish, then I’ll certainly consider that. But it seems to me that once the question and the answer [are] before the jury, then [the assistant state’s attorney] can, in [closing] argument, simply refer to that answer .... And what was asked [of McCawley] and . . . his answer to a particular question ... is evidence in the case. . . .”

       See footnote 11.

       Sec? footnote 10.

       See footnote 11.

       The statutory definition of attempt, found in General Statutes § 53a-49, requires specific intent to commit the underlying offense. The crime of robbery in the first degree, as defined in General Statutes § 53a-134 (a) (4), consists of larceny committed by the use or threat of the use of force, with the specific intent to deprive another of property. The statute defining the effect of intoxication on the finding of guilt, General Statutes § 53a-7, provides that intoxication may negate an element of the crime charged. Voluntary intoxication, however, may negate specific intent, but not general intent. State v. Shine, 193 Conn. 632, 638, 479 A.2d 218 (1984).

       The court instructed the jury in relevant part as follows: “[I]t now becomes my duty ... to instruct you concerning the law which you are to apply ....
      * sK
      “[T]he defendant is presumed to be innocent until proven guilty. . . .
      “The burden to prove the defendant guilty of a crime with which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged. . . .
      “In this particular case, there has been asserted the affirmative defense of mental disease or defect ....
      “The defendant must establish the affirmative defense by a preponderance of the evidence. . . . [I]n this case, the affirmative defense [is] lack of capacity due to mental disease or defect. . . .
      * ** *

        “That brings me ... to the subject of intent. Intent relates to the condition of the mind of the person who commits the act, his purpose in doing ii.....[A] person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct. . . .
      “The burden of proving the required intent for a crime beyond a reasonable doubt, rests upon the state. . . .
      ❖ * ❖
      “There was evidence offered that the defendant was intoxicated at the time of the alleged attempted robbery; that is, that he was under the influence of one or more intoxicants, namely, alcohol [and prescription drugs]. . . . [T]he defendant . . . maintains that he was . . . too intoxicated to have formed the specific intent elements of the crime ....
      “[T]he intent elements of the crime of attempted robbery in the first degree are that the defendant intentionally did anything which, under the circumstances as he believed them to be, was an act constituting a substantial step in the course of conduct planned to culminate in the commission of the crime of robbery and that he specifically intended to commit the crime of robbery and that he specifically intended to deprive another of property and to appropriate the same to himself. . . .
      “I will now instruct you on the law of intoxication and how it relates to the intent elements of the crime of attempted robbery in the first degree. . . . [IJntoxicalion itself is not a defense to a criminal charge but . . . evidence of the defendant’s intoxication may be offered by the defendant whenever it is relevant to negate an element of the crime charged.
      “Now, intoxication means a substantial disturbance of mental and physical capacities resulting from the introduction of substances into the body, including alcohol and drugs. As applied here, it means that if you find that the defendant was so intoxicated that he was not mentally able to form the intent required for the commission of the crime, then the intent elements of 1he crime would not be proven and you would be required to acquit the defendant of that charge.
      “This does not mean, however, that the defendant [must prove] that he was too intoxicated to form the intent required as an element of the crime. The state retains the burden of proof beyond a reasonable doubt on this issue of intent as on all the other elements of the crime. . . . You must, if you are to find for the defendant on this issue, find that while he was committing the crime of attempted robbery . . . that he was so intoxicated that his mind was incapable of forming the required general and specific intent elements of the crime ....
      “If, however, you find that he was not intoxicated or that he was intoxicated but not so extremely so that he could not form the intent required, you should disregard the evidence of his intoxication as it pertains to the defendant’s formulation of and acting with the general and specific intent

        required .... If you find that the defendant was intoxicated at the time of the crime, you may take that fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required general and specific intent, which are necessary elements for the commission of the crime of attempted robbery in the first degree. . . .
      “You will recall I have instructed you that the state must prove all of the elements of the crime of attempted robbery beyond a reasonable doubt. One element of that crime ... is the required general and specific intent . . . that he specifically intended to commit a robbery ... in the first degree, and that he specifically intended to deprive another of property or appropriate the same to himself. Those are the intent elements that the state must prove beyond a reasonable doubt. . . .
      “I [must] explain to you both the elements of the crime of robbery in the first degree . . . and the elements of the separate crime of attempting to commit that crime ....
      “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person ....
      “To establish a larceny, the state must prove that the defendant wrongfully took . . . property from an owner and at the time he intended, he specifically intended, to deprive the owner of it ... .
      “[To establish the crime of attempted robbery,] the state is required to prove beyond a reasonable doubt . . . that the defendant must have acted with the kind of intent required for the commission of the crime which he was attempting ....
      “[The defendant] must have specifically intended to commit a robbery and . . . specifically intended to commit a larceny by the use of force . . . and he must have acted with the specific intent required for the commission of a larceny; that is, he must have specifically intended to deprive the owner of property ....
      “It is the defendant’s position . . . that the state has not proved beyond a reasonable doubt the required intent element of this crime .... The [defendant] points to the evidence ... of his mental condition as testified to by [McCawley] ... as diminishing his capacity to formulate and have the required intent. ...” (Emphasis added.)

       The court instructed the jury in relevant part as follows: “The burden of proving the required intent beyond a reasonable doubt is on the state. . . . [0]ne of the elements of that crime ... is the general and specific intent elements .... [The defendant must have] specifically intended to commit the crime of robbery in the first degree ....
      ‘‘[E]vidence was presented in this case of a diminished . . . mental capacity on the part of the defendant at the time of the subject incident. . . .
      “[T]he state must prove that at the time of the incident the defendant acted intentionally and with specific intent.
      “[The defendant must have] intended to commit a robbery, a robbery in the first degree. And further, that he specifically intended to deprive another of property ....
      “[E]vidence of the defendant’s intoxication may be offered by the defendant whenever it is relevant to negate an element of the crime charged.
      “You must, if you are to find for the defendant on this issue, find that while he was committing the crime of attempted robbery in the first degree . . . that he was so intoxicated that his mind was incapable of forming the required general and specific intent elements of the crime ....
      “If, however, you find that [the defendant] was not intoxicated, or that he was intoxicated but not so extremely so that he could not form the required intent, you should disregard the evidence of his intoxication as it pertains to the defendant’s formulation of and acting with the general and specific intent required for the commission of the crime of attempted robbery in the first degree. . . .
      “If you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required and specific intent, which are necessary elements for the commission of the crime of attempted robbery in the first degree. . . .
      “You must first decide, then, whether the defendant was intoxicated at the time of the alleged crime. And second, whether he was capable of possessing an intent to commit the acts constituting the crime of attempted robbery in the first degree. . . . [T]he defendant does not have to prove that he was so intoxicated. The state has the burden of proving beyond a reasonable doubt that the defendant was capable of forming the required intent. Any degree of intoxication and not merely total intoxication may be considered in determining whether the defendant possessed at the time the requisite intent. . .


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    MICHAEL EXLEY v. CONNECTICUT YANKEE GREYHOUND RACING, INC.
    (AC 18841)
    O’Connell, C. J., and Landau and Spear, Js.

      Argued January 24
    officially released August 8, 2000

      Emanuel N. Psarakis, with whom, on the brief, was Richard F. Vitarelli, for the appellant-appellee (defendant).

      Raymond F. Parlato, for the appellee-appellant (plaintiff).

       The listing of judges reflects their seniority status on this corut as of the date of oral argument.

   Opinion

SPEAR, J.

The defendant, Connecticut Yankee Greyhound Racing, Inc. (Yankee), appeals from the judgment of the trial court granting, in part, its application to vacate an arbitration award issued in favor of its former employee, the plaintiff Michael Exley. The plaintiff cross appeals from the judgment of the trial court granting, in part, his application to confirm the arbitration award. On appeal, Yankee claims that the trial court improperly failed to vacate the entire award because (1) the award did not conform to the parties’ submission and (2) the arbitrator exceeded his authority in issuing the award. The plaintiff claims in his cross appeal that the court improperly failed to confirm the entire award because after determining that the submission was voluntary and unrestricted, the court improperly substituted its findings of fact and conclusions of law for those of the arbitrator. We affirm the judgment in part and reverse it in part.

The arbitrator found the following facts. Yankee entered into an employment agreement (Yankee agreement) with the plaintiff on April 15, 1995, under which the plaintiff was to act as racing secretary for a period of three years subject to earlier termination for cause pursuant to the terms of the agreement. The plaintiff also entered into an employment agreement with Plainfield Pets Program, Inc. (Plainfield Pets), a separate, nonprofit entity. The term of that agreement (Plainfield Pets agreement) was to coincide with the term of the Yankee agreement. Under the Plainfield Pets agreement, the plaintiff was to act as its president.

Plainfield Pets terminated the plaintiff under its employment agreement, and subsequently the plaintiff was terminated from his employment under the Yankee agreement. A dispute arose between Yankee and the plaintiff over his termination, and, pursuant to a provision in the Yankee agreement, that dispute was submitted to arbitration. Plainfield Pets was not named as a party to the arbitration, nor was it a party before the trial court. The arbitrator found that Yankee had terminated both its agreement and the Plainfield Pets agreement without cause in violation of both agreements and ordered Yankee to pay the plaintiff damages under both agreements.

The plaintiff filed an application in the Superior Court to confirm the award, and Yankee filed an application to vacate the award. The court granted in part the plaintiffs application to confirm the arbitration award issued in favor of the plaintiff against Yankee “insofar as it relates to [the plaintiffs] right under the Yankee agreement.” The court vacated the “arbitration award, if any, in favor of [the plaintiff] against Plainfield Pets and the award in favor of [the plaintiff] against [Yankee] insofar as it finds an entitlement in [the plaintiff] growing out of the [Plainfield] Pets agreement.” This appeal and the plaintiffs cross appeal followed.

We first address the standard of review of arbitration awards that are challenged pursuant to General Statutes § 52-418 (a) (4). “The scope of judicial review of arbitration awards is very narrow. Our courts favor arbitration as a means of settling differences and uphold the finality of arbitration awards except where an award clearly falls within the proscriptions of § 52-418 of the General Statutes. . . . Subsection (a) (4) of General Statutes § 52-418, the subsection under which the [defendant] pursues its claims of error, provides in part that an award is invalid if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. Generally, any challenge to an award pursuant to General Statutes [§ 52-418 (a) (4)] on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission. ... If the award conforms to the submission, the arbitrators have not exceeded their powers.” (Citations omitted; internal quotation marks omitted.) Board of Education v. Local 818, 5 Conn. App. 636, 639-40, 502 A.2d 426 (1985).

I

In its appeal, Yankee claims that the trial court improperly failed to vacate the entire arbitration award because the award did not conform to its submission. We do not agree.

To determine whether an arbitration award conforms to the parties’ submission to arbitration, we must first determine whether the submission was restricted or unrestricted. “In determining whether a submission is unrestricted, we look at the authority of the arbitrator. The authority of the arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of such qualifications, an agreement is unrestricted. . . . Perkins & Mario, P.C. v. Annunziata, 45 Conn. App. 237, 239-40, 694 A.2d 1388 (1997). . . . Hartford v. International Assn. of Firefighters, Local 760, [49 Conn. App. 805, 812, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998)].” (Internal quotation marks omitted.) Naek Construction Co. v. Wilcox Excavating Construction Co., 52 Conn. App. 367, 370-71, 726 A.2d 653 (1999).

The court found the submission by the parties to be unrestricted. We agree with the court. “The arbitration clause in a contract constitutes the written submission to arbitration. Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980).” Fraulo v. Gabelli, 37 Conn. App. 708, 714, 657 A.2d 704 (1995), cert. denied, 239 Conn. 947, 686 A.2d 125 (1996). “The process which governs the confirmation of arbitral awards is well settled by our cases. If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration. Gores v. Rosenthal, 150 Conn. 554, 557, 192 A.2d 210 (1963); Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 9, 110 A.2d 464 (1954). This submission can be invoked by a demand for arbitration by one or both parties when a dispute arises. The agreement for submission constitutes the charter for the entire ensuing arbitration proceedings. Malecki v. Burnham, 181 Conn. 211, 213, 435 A.2d 13 (1980); Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 587, 392 A.2d 461 (1978); Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961); Amalgamated Assn. v. Connecticut Co., 142 Conn. 186, 191, 112 A.2d 501 (1955).” Vailv. American Way Homes, Inc., supra, 451. The agreement between the plaintiff and Yankee in the present case provided for the arbitration of disputes between the parties and contained no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.

At the beginning of the arbitration proceeding, Yankee successfully objected to the plaintiffs proposed submission. The arbitrator allowed the parties to assert their respective views of the issues in their opening statements and in posthearing briefs. Because the parties could not agree on a submission, the arbitrator ultimately framed the submission as follows: (1) “On what acts and/or omissions was the termination of [the plaintiffs] employment based?” (2) “Was the termination of [the plaintiffs] employment as President of Plainfield Pets and as the Racing Secretary of Yankee a ‘termination for cause’ as that term is defined in the Plainfield Pets Agreement and the Yankee agreement?” The submission contained no language reserving explicit rights or conditioning the award on court review. We conclude that it was unrestricted. We now determine whether the award conforms to the submission.

The arbitrator found that Yankee had terminated the employment agreement with the plaintiff without cause and awarded back pay in the net amount of $40,228.30. We conclude that the award conforms to the submission.

Yankee also claims that the arbitrator exceeded his authority in issuing the award because he improperly imported the terms of the Yankee agreement into the Plainfield Pets agreement* and imposed liability on the defendant pursuant to the Plainfield Pets agreement. We do not agree. “It is . . . the award rather than the finding and conclusions of fact [that] controls and, ordinarily, the memorandum of an arbitrator is irrelevant. American Brass Co. v. Torrington Brass Workers’ Union, 141 Conn. 514, 522, 107 A.2d 255 [1954]; Von Langendorff v. Riordan, 147 Conn. 524, 527, 163 A.2d 100 [1960].” Board, of Education v. Local 818, supra, 5 Conn. App. 641. Furthermore, “[i]f the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. . . . Thus, [w]here the submission does not otherwise state, the [arbitrator is] empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the [arbitrator] was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the [arbitrator’s] decision of the legal questions involved. . . . Metropolitan District Commission v. AFSCME, Council, 4, Local 3713, 35 Conn. App. 804, 808, 647 A.2d 755 (1994).” (Internal quotation marks omitted.) JCV Investment Group, Inc. v. Manjoney, 56 Conn. App. 320, 324-25, 742 A.2d 438 (2000).

II

The trial court vacated the “arbitration award, if any, in favor of [the plaintiff] against Plainfield Pets and the award in favor of [the plaintiff] against [Yankee] insofar as it finds an entitlement in [the plaintiff] growing out of the [Plainfield] Pets agreement.” The plaintiff claims in his cross appeal that the court improperly failed to confirm the entire award because after determining that the submission was voluntary and unrestricted, the court improperly substituted its findings of fact and conclusions of law for those of the arbitrator. We agree.

A

To the extent that the trial court vacated the award, if any, against Plainfield Pets, our review of the record discloses that (1) Plainfield Pets was not a party to the arbitration proceeding, (2) the arbitrator did not render an award against Plainfield Pets and (3) Plainfield Pets was not a party to either of the applications that were filed in the Superior Court.

Even if we were to conclude that the arbitrator had rendered an award against Plainfield Pets, the trial court lacked jurisdiction to approve or vacate the award. “The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it. . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding. ... A court has no jurisdiction over persons who have not been made parties to the action before it.” (Citation omitted; internal quotation marks omitted.) Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 77, 609 A.2d 1057 (1992). “[Parties] are not fungible, even if they are represented by the same attorney and have similar interests. The general rule is that one party has no standing to raise another’s rights. See State v. Williams, 206 Conn. 203, 207, 536 A.2d 583 (1988); Delio v. Earth Garden Florist, Inc., [supra, 78]. The [defendant] cannot assert the appellate rights of parties who have never done so themselves.” Sadloski v. Manchester, 235 Conn. 637, 643, 668 A.2d 1314 (1995). Had the arbitrator rendered an award against Plainfield Pets, we would have reversed any trial court judgment approving or vacating the award against Plainfield Pets because it was not a party to the proceedings.

B

We next consider whether the trial court properly vacated the arbitrator’s award against Yankee to the extent that the award grew out of the Plainfield Pets agreement. We find that in so doing, the trial court substituted its legal judgment for that of the arbitrator. Where the arbitration is voluntary and the submission is unrestricted, as the court concluded here, the award cannot be corrected for errors of fact or law. See AFSCME, Council 15, Local 3153 v. Newtown, 49 Conn. App. 443, 447-48, 717 A.2d 759 (1998); Greater Bridgeport Transit Disk v. Amalgamated Transit Union, Local 1336, 28 Conn App. 337, 343, 610 A.2d 1324 (1992). We reverse this part of the court’s judgment.

The judgment is reversed in part on the plaintiffs cross appeal and the case is remanded with direction to render judgment granting the application to confirm the arbitration award in its entirety.

In this opinion the other judges concurred.

       These two claims encompass the following six claims raised by Yankee in its brief: (1) the court should have vacated the entire award; (2) the parties’ submission to the arbitrator was restricted; (3) the arbitrator’s entire award exceeded the scope of the parties’ submission; (4) even assuming arguendo that the parties’ submission to the arbitrator was unrestricted, the arbitrator exceeded his authority in rendering the award; (5) the court improperly failed to vacate the award in its entirety as the arbitrator’s excess of authority could not be limited to a portion of the award without doing injustice to Yankee; and (6) because the court found that the arbitrator exceeded his authority by rewriting the parties’ agreements, it improperly failed to vacate the entire award and upheld the award in light of an inappropriate legal standard.

       The arbitration provision of the agreement provides: “Any controversy or claim arising out of, or relating to this agreement, or the breach thereof, shall be settled by arbitration in the City of Hartford in accordance with the rules then in existence of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.”

       The arbitrator stated the following in his findings with regard to the relationship between Yankee and Plainfield Pets: “It is unclear from the testimony and the remainder of the record in this case what, the exact nature of the legal relationship is between Plainfield Pets and Yankee. The evidence on the record indicat es, however, that Yankee creat ed Plainfield Pets, Yankee provides a majority of Plainfield Pets' operating funds, Yankee and Plainfield Pets share the same business address, Yankee required [the plaintiff] to comply with the Plainfield Pets Agreement, Yankee terminated the Employment. Agreement, [the plaintiff] had entered into with Plainfield Pets, and Yankee relied on its determination that [the plaintiff] had materially breached the Plainfield Pets Agreement as one of the grounds for concluding that it had cause to terminate the Yankee Agreement.
      “Therefore, the Arbitrator finds that Yankee is an appropriate party against which [the plaintiff] has standing to pursue his claims under the Plainfield Pets Agreement and that [the plaintiffs] failure to name Plainfield Pets Program, Inc., as a party respondent is not fatal to the pursuit of his claims under the Plainfield Pets Agreement.”

       General Statutes! 52-418 (a) provides inrelevantpart: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or . . . any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. . . .”

       See footnote 3.

       Counsel for the plaintiff stated in his opening statement: “Well it’s really quite simple. In April of 1995, [Yankee] and [the plaintiff] entered into an employment contract, which ran for three years. Part and parcel of that contract was that he would not be terminated without cause.
      “To date, he has never received—we have never received anything in writing, nor has it ever been conveyed to me orally, nor, to my knowledge, to my client, the specific reason for his termination, what specific acts he performed or failed to perform, that caused his termination from [Yankee]. Therefore, I believe it’s in violation of his contract, and the assuming damages from that wrongful termination will be taken and shown through this hearing.”
      The plaintiffs counsel proposed the following issue in his posthearing brief: “Did [Yankee] breach [the plaintiffs] written employment contract dated April 1, 1995, when it terminated [the plaintiff] on January 21, 1997, without just cause? If so, what shall the remedy be?” In a footnote in that brief, counsel stated: “As the parties could not agree on a submission, it is requested that the arbitrator take the case as an unrestricted submission.”
      Counsel for Yankee stated in his opening statement: “There are really, from our perspective, two employment agreements that you’ll be asked to interpret. One of them, counsel has alluded to, is a six page agreement that was dated April 15, 1995, between the parties, a three year contract. And another one is a one page employment agreement, dated the same day. The longer of the contracts deals with the dog track. [Preliminarily], we’re talking about the Connecticut Yankee Greyhound Corporation, that’s the corporation we’re talking about, the dog track, Plainfield Greyhound Park or the dog track. The six page document, which I’m sure will be made an exhibit, was between [the plaintiff] and the dog track [Yankee], and the one page agreement, which resulted in a breach of agreement, was between [the plaintiff] and Plainfield Pets.
      “The employment agreement—we’re talking about specific terms in both of these employment agreements—the six page employment agreement between the dog track and [the plaintiff], specifically provides that he has certain duties. It specifically provides that he can be terminated with cause without any notice whatsoever, and the agreement, specifically, defines what the cause is, under the agreement. And of course, we’re going to introduce evidence that there was jus1 cause. It also talks about one of the reasons of just cause being breach of any other agreement to which [the plaintiff] was a party, and that’s why the second agreement becomes relevant, because the agreement he had with Plainfield Pets was also breached from our position. So, we’re dealing with those two contracts. For your interpretation, and the definitions of what—we have the benefit, in this case, of having definitions of what is cause, what isn’t cause, and so forth.
      “Now, as to what was said by counsel, he said nothing has ever been given in writing. Number one, there is no legal requirement to give reasons in writing. Under the contract, there is no requirement to give any notice, whatsoever, but the evidence will show he was given reasons for his termination at a meeting that was held at the dog track. And even though there wasn’t a requirement that he be entitled to notice, he did, in fact, get notice. So the issue for your determination, I believe, will be whether or not there is just cause under the agreements.”
      Yankee’s counsel did not state specifically the issue for the arbitrator to decide in its posthearing brief.

       Yankee does not dispute the arbitrator's power to frame the submission, but asserts that counsel’s claims made the submission a restricted one. This assertion is without merit.

       In his award, the arbitrator stated in a footnote to the submission: “From the evidence on the record, the Arbitrator finds that the Plainfield Pets Agreement was to have the same term, termination provisions, and other conditions (except for duties and compensation) as were contained in the Yankee agreement. Therefore, this Arbitrator also finds that the Plainfield Pets Agreement could be terminated for cause, and that ‘cause’ under the Plainfield Pets Agreement has the same definition as the term ‘cause’ as used in the Yankee Agreement, which definition is set out in Section 9 of the Yankee Agreement.”

       “The arbitrator’s award provides in relevant part: “Having heard the proofs and allegations of the parties, having reviewed and considered the evidence on the record, having given the evidence on the record its proper weight, and having made all proper credibility determinations, the Arbitrator finds as follows: THAT THE RESPONDENT EMPLOYER, CONNECTICUT YANKEE GREYHOUND RACING, INC., TERMINATED THE YANKEE AGREEMENT AND THE PLAINFIELD PETS AGREEMENT WITHOUT CAUSE AND THEREFORE TERMINATED BOTH OF THOSE AGREEMENTS IN VIOLATION OF THEIR TERMS AND CONDITIONS. THE ARBITRATOR THEREFORE AWARDS CLAIMANT EXLEY THE RELIEF SPECIFIED IN SECTION 7 OF THIS AWARD.
      * ** *
      “7. JUDGMENT AND AWARD/RELIEF AWARDED
      “A. Lost Wages and Benefits. Based on the evidence on the record, the Arbitrator has determined that the Respondent shall pay Claimant Exley the following amount of back pay, which amount has been determined giving due consideration to Exley’s interim earnings in mitigation of his contractual damages:
      “Plainfield Pets Agreement—1/7/97—4/14/98
      “66 weeks at $200 per week—$13,200.00
      “Yankee Agreement—1/21/97—4/14/97
      “12 weeks at $838.45 per week—$10,061.40
      “Yankee Agreement—4/15/97—4/14/98
      “52 weeks at 934.61 per week—$48,599.60
      “TOTAL BACK PAY (PRIOR TO MITIGATION)—$71,861.00
      “LESS:
      “Unemployment Compensation (All In 1997)—$ 4,942.00
      “Mashantucket Pequots—1997 Earnings—$17,524.00
      “Mashantucket Pequots—1998 Earnings through 4/14/98—$8,869.10
      “Mashantucket Pequots—1998 Holiday Pay—$297.60

        “TOTAL INTERIM EARNINGS IN MITIGATION—$31,632.70
      “TOTAL WAGE LOSS DAMAGES—$40,228.30”

       See footnote 9.

       Yankee also claims that it was improper for the court to refuse to vacate the entire award because a partial vacatur did not cure the arbitrator’s improper exercise of authority and such partial relief worked an injustice to Yankee. Because we hold that the arbitrator’s award conforms to the submission, there is no merit to this claim.

       The arbitrator ruled that Yankee was “an appropriate party against which [the plaintiff] has standing to pursue his claims under the Plainfield Pets Agreement and that [the plaintiffs] failure to name Plainfield Pets Program, Inc., as a party respondent is not fatal to the pursuit of his claims under the Plainfield Pets agreement.”


author: O’CONNELL, C. J.

text:
    THERESA KISH ET AL. v. SALO S. COHN ET AL.
    (AC 18382)
    O’Connell, C. J., and Foti and Landau, Js.

    Argued December 7, 1999
    officially released August 8, 2000

      Peter M. Ryan, for the appellants (plaintiffs).

      Michael P. Sweeney, with whom, on the brief, was Robert A. Slavitt, for the appellees (named defendant et al.).

      John A. Milici, for the appellees (defendant Charles C. Slama et al.).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The plaintiffs appeal from the trial court’s judgment rendered following the granting of the defendants’ motions to dismiss for lack of subject matter jurisdiction due to the plaintiffs’ failure to exhaust their administrative remedies. On appeal, the plaintiffs claim that (1) the court improperly determined that they were required to exhaust their administrative remedies because recourse to the department of environmental protection (department) would be a futile exercise and the procedures available to them are inadequate and (2) General Statutes § 22a-403 is unconstitutional on its face and as applied to them. We affirm the judgment of the trial court.

The following facts axe relevant to this appeal. The defendants own a dam that controls the primary source of water for a pond in which the plaintiffs have recreational rights. In 1994, the department determined that the dam was in need of remedial work, without which it could not withstand a 100 year frequency storm. Pursuant to General Statutes § 22a-402, which in part authorizes the commissioner of environmental protection to require owners of unsafe dams to fix them, and pursuant to a consent agreement dated May 22, 1995, the defendants hired an engineer to prepare plans for the “removal, partial removal or repair of the dam” so that the dam would be strong enough to survive a 100 year frequency storm.

On September 26,1997, the plaintiffs filed a complaint in the Superior Court naming the owners of the dam as defendants. The complaint alleged that the defendants had threatened either to remove the dam, which would destroy the pond, or to lower the dam, which would substantially reduce the size of the pond, and that under either scenario irreparable damage would likely be caused. Among other relief, they sought an injunction to prevent the defendants from removing or lowering the dam.

On October 27,1997, the defendants moved to dismiss the action in accordance with Practice Book § 10-30, arguing that the court lacked subject matter jurisdiction because the plaintiffs had failed to exhaust their administrative remedies. On April 1, 1998, the court granted the defendants’ motions to dismiss. This appeal followed.

I

The plaintiffs contend that the court improperly concluded that they had failed to exhaust their administrative remedies before seeking injunctive relief in the trial court. They also claim that the court improperly refused to apply the exceptions to the exhaustion of administrative remedies doctrine for circumstances where recourse to the administrative remedy would be futile or inadequate. We are not persuaded.

“The court’s findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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. . . .

“Although important public policy considerations favor exhaustion of administrative remedies before permitting judicial review, a small number of exceptions are permitted for narrowly defined purposes. One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. ... It 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.” (Citations omitted; internal quotation marks omitted.) Breiner v. State Dental Commission, 57 Conn. App. 700, 704-705, 750 A.2d 1111 (2000).

A

As a preliminary matter, we agree with the court’s conclusion that the plaintiffs have failed to exhaust their administrative remedies. The court found that “General Statutes § 22a-403 (a) provides that the commissioner of the [department] may hold a public hearing ‘if the public interest will be best served thereby’ and must hold a hearing if he receives a petition signed by twenty-five persons requesting a hearing .... Thus, the plaintiffs in this case can have a hearing before the [department] either because the commissioner decides to have one or if they precipitate a hearing.” The court further found that by following the statutory procedure, “[a] record before the administrative agency charged with regulating dams in this state will thus be developed.”

The plaintiffs were fully aware of the events taking place between the defendants and the department regarding the dam. Nevertheless, the plaintiffs did not attempt to trigger a hearing under § 22a-403 by collecting the signatures of twenty-five persons as required by the statute. Completing such a task, although presumably not the plaintiffs’ ideal choice, is not an onerous requirement. “The plaintiffs preference for a particular remedy does not determine the adequacy of that remedy. [A]n administrative remedy, in order to be adequate, need not comport with the [plaintiffs’] opinion of what a perfect remedy would be.” (Internal quotation marks omitted.) Breiner v. State Dental Commission, supra, 57 Conn. App. 705. Accordingly, we conclude that the court properly determined that the plaintiffs have not exhausted their administrative remedies.

B

The plaintiffs next claim that the pursuit of administrative remedies would be an exercise in futility. We reject the plaintiffs’ argument that the department’s order requiring the defendant to submit to the department a plan for the “removal, partial removal or repair of the dam” would result in a destruction of the pond. Because the “repair of the dam” is one of the possible options authorized by the department, it is conceivable that the defendants could have a plan approved that merely results in the repair of the dam and that does not affect the pond in any fashion. As the trial court noted: “One does not know at this point either the contents of the defendants’ proposals regarding the dam, or the [department’s] reaction thereto.” Indeed, “a favorable outcome by the administrative adjudication may render judicial intervention unnecessary.” Id. We agree with the trial court and conclude that the plaintiffs’ pursuit of the administrative remedies available to them would not be an exercise in futility.

C

Finally, we agree with the court that the administrative remedies available to the plaintiff are not inadequate. As noted above, the department may hold a hearing if it deems such a proceeding necessary and, if the department chooses not to hold such hearing, it may be required to do so if the plaintiffs gather the signatures of twenty-five persons as required by § 22a-403. The signatories need not be individuals with any legal or other interest in the subject matter. The statute places no restriction on who may be a signatory. This requirement, which may demand nothing more than standing in a public place collecting signatures for a short period of time, is not so burdensome or uncertain that it constitutes an inadequate procedure for the plaintiffs to follow.

In summary, as the trial court stated: “[T]here has been no showing that recourse to the [department] will be futile, inadequate or definitely unsuccessful.” We conclude that the court properly granted the defendants’ motions to dismiss on the basis oflack of subject matter jurisdiction.

II

The plaintiffs also contend that § 22a-403 is unconstitutional on its face and as applied to them because it does not afford the plaintiffs a meaningful hearing within a meaningful time. More specifically, the plaintiffs contend that because a hearing is not mandatory and because there are fewer than twenty-five plaintiffs, there will be a taking of the plaintiffs’ property without due process of law if the dam is lowered or removed. We decline to review this claim.

“This court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case. . . . The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity. Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949). Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident.” (Citations omitted; internal quotation marks omitted.) Moore v. McNamara, 201 Conn. 16, 20-21, 513 A.2d 660 (1986); see also Castagno v. Wholean, 239 Conn. 336, 344-45, 684 A.2d 1181 (1996).

“Simply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process. Sullivan v. State, 189 Conn. 550, 554, 457 A.2d 304 (1983) .... [D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore.” (Citation omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 207 Conn. 346, 354, 542 A.2d 672 (1988).

We find this reasoning compelling in this case. The plaintiffs have not completed the statutory appeal process available to them, and the result of that process is far from certain. Moreover, the court never discussed this constitutional issue in its memorandum of decision. We therefore decline to review the plaintiffs’ constitutional challenge to § 22a-403.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs, owners of real property fronüng on a pond located in the city of Norwalk, are Theresa Kish, Benjamin F. VanWormer, Robert M. McAnerney, Patricia R. Wilson, Evelyn Lawrence, Ruth H. Schiffer, William B. McDaniel and Mary S. McDaniel. The plaintiffs have been granted rights to use the pond for various purposes.

       The defendants are Salo S. Cohn, Dorothy B. Cohn, Charles C. Slama and Susan J. Slama. The Cohns and the Slamas filed separate motions to dismiss.

       General Statutes § 22a-403 (a) provides in relevant part: “Before any person constructs, alters, rebuilds, substantially repairs, adds to, replaces or removes any such structure [dam], such person shall apply to the commissioner for a permit to undertake such work. ... If the commissioner finds that an application is complete, he shall (1) notify the applicant by certified mail, return receipt requested, of his intent to grant a permit with or without terms and conditions or to deny a permit for such work and (2) publish notice of such intention in a newspaper having a general circulation in the area in which the proposed work will take place or have effect. . . . The commissioner may hold a hearing prior to approving or denying any application if, in his discretion, the public interest will be best served thereby, and he shall hold a hearing if, within thirty days after such notice has been published, he receives a petition requesting such a hearing signed by at least twenty-five persons. Notice of such hearing shall be published at least thirty days before the hearing in a newspaper having a general circulation in the area in which the work will take place or have effect.”

       “General Statutes § 22a-401 et seq. gives jurisdiction over the construction and regulation of dams to the commissioner [of environmental protection]. See also Kegs., Conn. State Agencies § 22a-39-4.3.a (providing that the commissioner shall exclusively regulate the construction or modification of any dam).” Samperi v. Inland Wetlands Agency, 226 Conn. 579, 599 n.18, 628 A.2d 1286 (1993).

       A 100 year storm occurs when eight inches of rain fall within a twenty-four hour period.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. NEIL BROWN
    (AC 19722)
    Schaller, Spear and Mihalakos, Js.
    Argued February 15
    officially released August 8, 2000

      John B. Cantarella, special public defender, for the appellant (defendant).

      Christopher T. Godidlis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).

       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 injury to such person or a third person . . .

   Opinion

SCHALLER, J.

The defendant, Neil Brown, appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). On appeal, the defendant claims that the trial court improperly (1) admitted testimony of a non-expert witness’ observations of the victim subsequent to the sexual assault and kidnapping, (2) determined that the state could cross-examine the defendant’s character witness as to the specific facts underlying the defendant’s prior arrest for assault, which resulted in the defendant’s withdrawal of his character witness, who had already testified, and the court’s instruction to the jury to disregard the witness’ testimony and (3) instructed the jury regarding consent. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The victim lived in Bloomfield with her aunt, uncle and cousin. She held a part-time job at a grocery store in Bloomfield and was completely dependent on others for transportation to and from work because she did not drive an automobile. The defendant lived in Hartford and had known the victim for approximately eight or nine years because he was a friend of the victim’s cousin and occasionally visited their home.

On May 26, 1997, while at a cookout at the victim’s home, the defendant was asked to pick up the victim from work. When the defendant arrived at the grocery store, the victim asked him to give her friend a ride to Hartford. After dropping off the victim’s friend, the defendant stopped at his new apartment, which was only a short distance away, telling the victim that he needed to make a quick stop. The defendant asked the victim to go up to his apartment while he used the bathroom. She did so.

After using the bathroom, the defendant brought the victim into the bedroom where he began touching her. He threw her down to the floor and proceeded to remove her sandals, pants and underwear, all the while covering her mouth with his hand. He dragged the victim by her aim into the living room to turn up the volume on the radio. He then inserted his penis into her vagina and proceeded to have sexual intercourse with the victim to the point of ejaculation. Subsequently, he brought the victim into the bathroom to splash water on her face.

After seeking a neighbor’s help to no avail, the victim ran down the stairs and waited by the defendant’s car before he drove her home. When they arrived at her home, she ran from the car into the house. After washing her face and mouth, the victim told her aunt that the defendant had raped her. When her aunt questioned the defendant, he said that if he did something that upset the victim, he was sorry. The victim’s cousin, a Hartford police officer, questioned the defendant and received the same response. The defendant was asked to leave.

An on-duty Hartford police officer went to the victim’s home and brought her to Hartford Hospital where a complete rape kit test was performed. That same day, the defendant was charged with sexual assault in the first degree in violation of § 53a-70 (a) (l) and kidnapping in the first degree in violation of § 53a-92 (a) (2) (A). After the incident, the victim was so depressed and afraid to leave her house that her mother had to come from Jamaica to comfort her.

On June 16,1998, the jury returned a verdict of guilty on both counts. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims first that the court improperly admitted testimony of a nonexpert witness’ observations of the victim subsequent to the sexual assault. Specifically, the defendant claims that the testimony of the victim’s aunt was inadmissible because it did not fall within the scope of the constancy of accusation doctrine. This argument is misplaced.

The constancy of accusation doctrine provides that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. ... In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc).

The constancy of accusation doctrine deals with hearsay testimony recitations of a victim’s account of an assault. Here, the witness did not testily as to the actual assault; she described the conduct of the victim subsequent to the attack. A description of the conduct of a victim is admissible as nonhearsay. “A statement made out-of-court that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible. . . . Nonverbal conduct may also be hearsay if intended as an assertion. If the conduct is assertive in nature, that is, meant to be a communication—like the nodding or shaking of the head in answer to a question—it is treated as a statement, and the hearsay rule applies. . . . However, conduct not intended as an assertion is not hearsay. . . . Thus, [n]onassertive conduct such as running to hide, or shaking and trembling, is not hearsay.” (Citations omitted; internal quotation marks omitted.) State v. King, 249 Conn. 645, 670, 735 A.2d 267 (1999).

The victim’s aunt testified regarding the victim’s conduct following the assault and regarding her own observations of the victim’s crying and fear of being alone. The state produced this testimony to show that the victim did not act like a person who has had consensual sexual intercourse. See State v. Martin, 170 Conn. 161, 365 A.2d 104 (1976) (allowing witness to relate direct observations of person from which trier of fact could infer person’s state of mind).

Because the testimony is admissible as nonhearsay, the constancy of accusation doctrine is inapplicable. The standard of review regarding evidentiary rulings is abuse of discretion. “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Shehadeh, 52 Conn. App. 46, 50, 725 A.2d 394 (1999). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) States. Martin, supra, 170 Conn. 166. We conclude that the court did not abuse its discretion in admitting the testimony of the victim’s aunt.

II

The defendant claims next that the court improperly determined that the state could cross-examine the defendant’s character witness as to the specific facts underlying the defendant’s prior arrest for assault, which resulted in the defendant’s withdrawal of his character witness, who had already testified, and the court’s instruction to the jury to disregard the witness’ testimony. We are not persuaded.

The defendant filed a pretrial motion in limine to prevent the state from referencing his arrest in 1996 for the assault of a woman after he allegedly “slapped and choked a young lady at her apartment.” At the pretrial hearing, the state indicated that it would not refer to the arrest unless the defendant placed his character at issue. The court did not rule on the motion at that time.

During the trial, the defendant renewed his motion in limine. The court ruled that, in the absence of an offer of proof, if the defendant offered evidence as to his character as a nonviolent person, then the state could offer evidence to the contrary. Subsequently, on direct examination of a character witness, defense counsel asked the question, “Can you tell us if you know, if you were aware of [the defendant’s] reputation in the community in terms of has he ever, prior to the charges in this case, been accused of sexual misconduct?” He specifically limited the question to “sexual misconduct.” During cross-examination, the state began to ask the witness about the defendant’s prior arrest for assault, but the defendant interjected before the prosecutor stated more than the date of the event, and the jury was dismissed. Defense counsel stated that the state’s inquiiy was improper because he had limited his question to the witness to sexual misconduct by the defendant and the state’s proposed question related to the defendant’s violent and assaultive conduct toward women, which was unrelated to the trait placed in issue. The court concluded, following conference with counsel, that the cross-examination of the witness about the defendant’s prior arrest for assault was relevant because defense counsel’s question on direct examination of the witness opened the door to the defendant’s prior bad act involving an assault of a woman at her apartment. The court gave the defendant the option of having the court strike the testimony of the witness or allowing the witness to be subjected to the questioning regarding the assault. The defendant opted to have the testimony of the witness stricken and now claims that the mere fact that he was required to choose constitutes a denial of his constitutional right to a fair trial.

“The trial court’s decision to deny the motion to exclude a witness’ prior record when offered to attack his credibility will be upset only if the court abused its discretion. In determining whether there has been an abuse, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Shaw, 185 Conn. 372, 384, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). No details of the prior assault were heard by the jury. See id. The court gave an instruction cautioning the jury not to consider the testimony of the witness. Furthermore, the defendant made a tactical decision to exclude the testimony of his witness, rather than allow the impeachment testimony. “The defendant may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” State v. Cruz, 56 Conn. App. 763, 772, 746 A.2d 196 (2000). The trial court did not abuse its discretion.

Ill

The defendant’s final claim is that the court improperly instructed the jury regarding consent. Specifically, the defendant claims that the court shifted to him the burden to prove that the victim had consented to sexual intercourse. We disagree.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [this court] will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Whitley, 53 Conn. App. 414, 423, 730 A.2d 1212 (1999); see also State v. Mackor, 11 Conn. App. 316, 320-21, 527 A.2d 710 (1987) (charge must adequately instruct jury on law applicable to case to assist jurors in their understanding of nature of charges against defendant and factual elements that must be proved to apply law to facts of case).

“In reviewing the charge as a whole, the instructions need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury’s guidance. . . . The test to be applied to any part of a charge is whether the charge, considered in its entirety, presents the case to the jury so that no injustice will result.” (Citation omitted; internal quotation marks omitted.) State v. Mackor, supra, 11 Conn. App. 326; see also State v. Lepri, 56 Conn. App. 403, 412-13, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000).

The court instructed the jury in relevant part: “Compelled sexual relations are different, from consensual sexual relations. The term consensual sexual relations means full consent, and that clearly implies that a person should always be free to decline to go beyond a certain point. If you find that [the victim] consented to the sexual intercourse, you cannot find that the act was compelled. But such consent must have been actual and not simply acquiescence brought by force or fear. The fact that a victim submits to a defendant’s demands after the use of force does not amount to consent on her part. And the victim need not resist to the point of physical injury in order to establish that she did not consent to the sexual activity. In short, in order for you to determine that [the victim] consented to the sexual activity in this case, you must find that it was truly voluntary on her part.”

The court’s instruction directed the jury to find the defendant not guilty if it found that the victim consented. See State v. Bouier, 44 Conn. App. 548, 554, 690 A.2d 889 (“[c]ontrary to the defendant’s assertion, the court did not instruct that the only way the jury could acquit him was if it found that the victim had consented, but rather, that if it were to find that the victim had consented to the acts that constituted the basis for the charge, then it must acquit him”), cert. denied, 241 Conn. 903, 694 A.2d 40 (1997).

The defendant’s claim that the jury instruction suggested that consent is subjectively based on the victim’s understanding is without merit. “The fact that any act engaged in under compulsion would necessarily be non-consensual. . . does not impose upon the court a duty to instruct the jury on consent as if it were still a statutory element.” (Citation omitted; internal quotation marks omitted.) State v. Mackor, supra, 11 Conn. App. 324. Considered in its entirety, the jury instruction was correct in law and sufficient to guide the jury in its verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       The victim’s aunt testified in part as follows:
      “[State’s Attorney]: Have you ever seen your niece this upset before?
      “[Victim’s Aunt,]: No, I don’t remember even seeing her cry.
      “Q: Ma’am, on the days that followed after this incident, did you observe any changes in [the victim’s] behavior?
      “A: Yeah.
      “Q: What did you observe?
      “A: She was scared all the time. She didn’t want to stay by herself. I had to send for her mother to come and stay with her to calm her down.”