author: SPEAR, J. LAVERY, J.,

text:
    MAURICE NIZZARDO v. STATE TRAFFIC COMMISSION ET AL.
    (AC 18417)
    Lavery, Spear and Freedman, Js.

      Argued June 2
    officially released November 9, 1999

      Steven R. Smart, for the appellant (plaintiff).

      Robert D. Snook, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Karen K. Clark, with whom was Gordon R. Paterson, for the appellee (defendant First Stamford Corporation).
   Opinion

SPEAR, J.

The plaintiff, Maurice Nizzardo, appeals from the judgment of the trial court dismissing his appeal from a decision by the named defendant, the state traffic commission (commission). The commission granted a traffic certificate to the defendant First Stamford Corporation (First Stamford) in connection with First Stamford’s proposed shopping center development in the city of Stamford. The plaintiff claims that the court improperly determined that (1) his appeal from the commission’s denial of his request for environmental intervenor status was untimely filed and (2) he was not an aggrieved party. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. First Stamford sought a traffic certificate pursuant to General Statutes § 14-311 (a) because it intended to erect a shopping center on Route 1 near the Stamford-Greenwich town line. The plaintiff sought intervenor status before the commission pursuant to General Statutes § 22a-19. By letter dated December 2, 1996, the commission denied the plaintiffs request because (1) the petition was inadequate as it failed to state with particularity how the environment would be affected adversely by the proposed conduct and (2) the commission has no jurisdiction over environmental issues.

The commission advised the plaintiff that he would be notified when a meeting to consider the matter was scheduled and invited him to participate in the hearing by submitting documents and comments regarding traffic operation and highway safety. The commission granted First Stamford’s application on January 21, 1997, and, pursuant to General Statutes §§ 14-311 (e) and 4-183, the plaintiff appealed to the Superior Court.

First Stamford moved to dismiss the plaintiffs administrative appeal as untimely because it was not commenced within forty-five days of the commission’s denial of the plaintiffs request for intervenor status as required by § 4-183 (c). The court determined that the appeal was untimely with respect to the denial of inter-venor status and granted the motion. The court reserved decision on whether the plaintiff otherwise was an aggrieved person who had standing to appeal the merits of the commission’s decision. After an evidentiary hearing, the court found that the plaintiff was not an aggrieved person and, therefore, had no standing to appeal the decision. This appeal followed.

I

We first address the question of whether the plaintiff timely filed his appeal from the commission’s denial of his request for intervenor status.

“Appeals to courts from administrative agencies exist only under statutory authority. ... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. . . . The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.” (Citation omitted; internal quotation marks omitted.) Cassella v. Dept. of Liquor Control, 30 Conn. App. 738, 740, 622 A.2d 1018, cert. denied, 226 Conn. 909, 628 A.2d 983 (1993). “The legislature intended the forty-five day time limitation for filing of an appeal under the [Uniform Administrative Procedure Act] to remain a prerequisite to subject matter jurisdiction.” Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993).

The plaintiff claims that his appeal from the commission’s denial of his request for intervenor status was timely filed for a number of reasons. He asserts that (1) the December 2, 1996 letter was not a “final decision” denying intervenor status but was only a preliminary ruling pending a final decision on the granting of the application, (2) the rights of the parties were not finally fixed until the commission issued a decision on First Stamford’s application, (3) the commission itself did not consider its December 2,1996 letter a final decision and (4) an appeal prior to the commission’s decision on the application would have been premature and inefficient.

The plaintiff bases his claim that the December 2, 1996 letter was not a final decision on the commission’s invitation to him to participate in the hearing and to submit documents dealing with traffic related concerns. We disagree. The letter clearly makes a final disposition of the plaintiffs request for environmental intervenor status. It denied that request, and the invitation to participate by way of comments or submission of documents with respect to traffic related issues was nothing more than what any member of the public would have been entitled to do. There is nothing in the December 2, 1996 letter that even hints that the commission would review the request for intervenor status at the hearing or in any way reconsider its decision on that issue. The court therefore correctly found that the December 2, 1996 letter was a final decision on the plaintiffs request for intervenor status.

We may fairly categorize the balance of the plaintiffs timeliness claims as factors that a court ordinarily would look to in ascertaining whether an administrative appeal was timely filed. In support of these claims, the plaintiff relies on General Statutes § 4-166 (3), which defines as final “the agency determination in a contested case” and also provides that “[t]he term does not include a preliminary or intermediate ruling or order of an agency . . . .” The plaintiff also relies on State v. State Employees’ Review Board, 231 Conn. 391, 403, 650 A.2d 158 (1994), for the propositions that (1) a consideration in determining finality is whether judicial review will disrupt “the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action,” and (2) where the agency does not consider a decision to be final, such view ought to be taken into account in determining finality.

The plaintiffs claims miss the mark because he is relying on case law and statutory definitions that are useful in determining when an agency’s decision is final for purposes of appeal where the inteivention is not a matter of right. We need not examine these factors to determine whether the commission’s decision here was final because the plaintiff claims the status of an environmental intervenor, pursuant to § 22a-19, as a matter of right.

Our Supreme Court has stated: “The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make a colorable claim to intervention as a matter of right.” (Internal quotation marks omitted.) Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). “Section 22a-19 (a) makes intervention a matter of right once a verified pleading is filed complying with the statute, whether or not those allegations ultimately prove to be unfounded. ” Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989). In Winslow v. Lewis-Shepard, Inc., supra, 536, our Supreme Court noted that “the trial court’s order denying [the employer’s] motion to intervene, while interlocutory, is nonetheless a final judgment for purposes of appeal.”

Pursuant to § 4-183, the plaintiff had forty-five days to appeal from the commission’s decision denying him intervenor status. This he failed to do. Because the plaintiff failed to file a timely appeal, the court properly dismissed the appeal as to that issue for lack of subject matter jurisdiction.

II

The plaintiff also claims that the trial court improperly determined that he was not a classically aggrieved person. “The question of aggrievement is one of fact to be determined by the trial court. . . . We will reverse the trial court only if its conclusions are clearly erroneous and violate law, logic, or reason or are inconsistent with the subordinate facts.” (Citation omitted.) Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 301, 605 A.2d 885 (1992).

The plaintiff first claims that he is classically aggrieved because he is an environmental intervenor. He relies on Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 727, for the proposition that an environmental intervenor does not have to establish classical aggrievement to appeal from an agency decision. This claim turns on the plaintiffs assertion that the court improperly dismissed his appeal with respect to the commission’s denial of intervenor status. We concluded in part I of this opinion that the court properly dismissed that aspect of the appeal and the plaintiff is, therefore, not an environmental interve-nor. We now turn to the plaintiffs claim that the evidence demonstrated that he was classically aggrieved.

“The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. ” (Internal quotation marks omitted.) R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 570-71, 684 A.2d 1207 (1996). Whether a party is aggrieved is a question of fact. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 716, 563 A.2d 1339 (1989). The burden is on the plaintiff to demonstrate aggrievement, and “[w]e will reverse the trial court only if its conclusions are clearly erroneous and violate law, logic, or reason or are inconsistent with the subordinate facts.” Zoning Board of Appeal v. Planning & Zoning Commission, supra, 27 Conn. App. 301.

After hearing evidence on aggrievement, the court found, inter alia, the following relevant facts. The plaintiffs residence is four miles from the proposed development, and four properties in which he had an interest were located south of Route 1 in Stamford, while the proposed development was located 2000 feet north of Route 1. The plaintiffs parcel closest to the development was at least one-quarter mile away. The court noted that the plaintiff offered no evidence that his safety, as a member of the public, would in any way be at risk by the operation of the proposed development, and his testimony simply revealed speculative fears that there would be “adverse impacts upon his economic interest with respect to his various real estate holdings.” The court cited Southington v. State Traffic Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 362840 (January 14, 1991) (3 Conn. L. Rptr. 610), for the proposition that all community members “particularly those living, or occupying land, in the immediate vicinity of the particular state highway, are interested in the public safety of that highway system; however, that general interest alone is not the ‘specific, personal, and legal interest’ necessary for aggrievement, permitting an appeal from a determination regarding public safety rendered by the [commission].” Id., 615-16. We agree with this proposition.

After reviewing the entire record, we conclude that the court’s finding that the plaintiff was not classically aggrieved was not clearly erroneous. The plaintiff failed to demonstrate the necessary specific, personal and legal interest in the commission’s decision and, therefore, the court properly dismissed the appeal.

The judgment is affirmed.

In this opinion FREEDMAN, J., concurred.

LAVERY, J.,

concurring. I agree with the majority’s result, but I respectfully would affirm the judgment of the trial court on a different basis.

As it correctly stated in its December 2, 1996 letter to the plaintiff denying him intervenor status, the state traffic commission (commission) has no jurisdiction over environmental issues. The plaintiff, therefore, had no standing to raise his environmental claim before the commission.

“Although proceedings before administrative agencies such as zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence, the hearings must be conducted so as not to violate the fundamental rules of natural justice. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984).

“[General Statutes §] 22a-19, which authorizes any person to intervene in any administrative proceeding and to raise therein environmental issues must be read in connection with the legislation which defines the authority of the particular administrative agency. Section 22a-19 is not intended to expand the jurisdictional authority of an administrative body whenever an inter-venor raises environmental issues. Thus, an inland wetland agency is limited to considering only environmental matters which impact on inland wetlands. Other environmental impacts must be raised before other appropriate administrative bodies . . . .” Id., 250-51.

Although “a basic purpose of § 22a-19 (a) is to give persons standing to bring actions to protect the environment; Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989); and intervention in an administrative proceeding is for the limited purpose of raising environmental issues; Connecticut Fund for the Environment, Inc. v. Stamford, [supra, 192 Conn. 248 n.2]; General Statutes § 22a-19 does not expand the jurisdictional authority of an administrative body acting pursuant to a separate act of title 22a to hear any and all environmental matters, but rather, limits an intervenor to the raising of those environmental matters which impact on the particular subject of the act pursuant to which the commissioner is acting.” (Emphasis in original; internal quotation marks omitted.) Burton v. Dillman, 27 Conn. App. 479, 481-82, 607 A.2d 447, cert. denied, 223 Conn. 904, 610 A.2d 178 (1992). A commission “may act only within its powers authorized by statute and an intervening plaintiff is limited to raising environmental matters relating to those statutory powers.” Id., 482.

“There shall be within the Department of Transportation a State Traffic Commission. . . . For the purpose of standardization and uniformity, said commission shall adopt and cause to be printed for publication regulations establishing a uniform system of traffic control signals, devices, signs and markings consistent with the provisions of this chapter for use upon the public highways. . . . Taking into consideration the public safety and convenience with respect to the width and character of the highways and roads affected, the density of traffic thereon and the character of such traffic, said commission shall also adopt regulations, in cooperation and agreement with local traffic authorities, governing the use of state highways and roads on state-owned properties, and the operation of vehicles .... Said commission shall also make regulations, in cooperation and agreement with local traffic authorities, respecting the use by through truck traffic of streets and highways .... Said commission may place and maintain traffic control signals, signs, markings and other safety devices, which it deems to be in the interests of public safety, upon such highways as come within the jurisdiction of said commission . . . .’’General Statutes § 14-298. Nothing within the legislation empowers the commission with responsibility for the environment.

“The concept of standing involves aggrievement, that is, an injury in fact, plus whatever other conditions must exist to allow a party to appeal. . . . Because the plaintiffs claim of aggrievement rested on issues that were not within the authority of the Probate Court to decide, the Superior Court lacked jurisdiction to hear [the] appeal from the Probate Court order.” (Citation omitted.) Burton v. Dillman, supra, 27 Conn. App. 482-83. Because the issues he sought to raise by means of intervention were beyond the scope of the commission’s authority, the plaintiff was not aggrieved and therefore lacked standing. The court properly dismissed the plaintiffs appeal for lack of jurisdiction.

       The other defendants in this action, in addition to the commission and First Stamford, are Richard J. Howard, executive director of the commission; the state department of transportation; and James Sullivan, the acting commissioner of transportation.

       General Statutes § 14-311 (a) provides in relevant part: “No person, firm, corporation, state agency, or municipal agency or combination thereof shall build, expand, establish or operate any . . . shopping center or other development generating large volumes of traffic, having an exit or entrance on, or abutting or adjoining, any state highway or substantially affecting state highway traffic within this state until such person or agency has procured from the State Traffic Commission a certificate that the operation thereof will not imperil the safety of the public.”

       General Statutes § 22a-19 (a) provides in relevant part,: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding . . . involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust, in the air, water or other natural resources of the state.”

       General Statutes § 4-183 (c) provides in relevant part: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court . . . .”

       General Statutes § 4-166 (2) provides in relevant part: “ ‘Contested case’ means a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . .

       note that the department of environmental protection is the state agency authorized pursuant to title 22a of the General Statutes “to conserve, improve and protect [this state’s] natural resources and environment.” (Internal quotation marks omitted.) Glendenning v. Conservation Commission, 12 Conn. App. 47, 51, 529 A.2d 727, cert. dismissed, 205 Conn. 802, 531 A.2d 936 (1987).


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    CHRISTIE MIKOLINSKI v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17835)
    O’Connell, C. J., and Schaller and Hennessy, Js.
    Argued March 30
    officially released November 9, 1999

      Jeffrey D. Brownstein, with whom, on the brief, was Gregory A. Thompson, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff, Christie Mikolinski, appeals from the trial court’s judgment dismissing her appeal from the decision of the defendant commissioner of motor vehicles (commissioner). The court sustained the commissioner’s suspension of the plaintiffs license to operate a motor vehicle on the ground that she had operated her vehicle while her blood alcohol content was in excess of the limit prescribed in General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g). The plaintiff claims that the court improperly concluded that (1) the initial stop of her vehicle was constitutionally valid, (2) her detention by the police for further investigation was proper and (3) there was probable cause to find that she was operating her vehicle on a public highway. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Between 11 p.m. on May 23, 1997, and 3 a.m. on May 24, 1997, the Southington police department conducted a sobriety checkpoint of eastbound and westbound traffic in the area of 1199 Meri-den-Waterbury Turnpike. Signs were posted in each direction alerting motorists to the checkpoint, and routes exiting the turnpike were available to motorists in each direction who chose not to enter the checkpoint.

On May 24, 1997, at approximately 1:35 a.m., the plaintiff entered the checkpoint and stopped her vehicle. While the plaintiff was stopped, a police officer asked her a number of questions. He then directed the plaintiff to an adjacent parking lot where a second officer conducted a detailed investigation. Upon approaching the plaintiffs vehicle, the second officer smelled a strong odor of alcohol on the plaintiffs breath and noticed that her eyes were red and glassy. He administered several sobriety tests, all of which the plaintiff failed. The second officer then placed her under arrest for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. The plaintiff was transported to the Southington police station, where she was advised of her lights and given an opportunity to contact an attorney. After electing not to call an attorney, she agreed to submit to a blood alcohol test, the results of which indicated that her blood alcohol content exceeded the statutory limit.

On May 30,1997, the commissioner sent a suspension notice to the plaintiff advising her that due to the results of the blood alcohol test, her license to operate a motor vehicle would be suspended for a ninety day period commencing on June 23, 1997. The notice offered the plaintiff an opportunity, pursuant to § 14-227b, to attend a hearing to contest the suspension prior to the effective date of the suspension.

The hearing was held before a hearing officer, acting for the commissioner, who determined that the four requirements of § 14-227b (f) were met. The plaintiff appealed to the trial court, which affirmed the decision of the commissioner and dismissed the appeal. This appeal followed.

I

REVIEWABILITY

We must first address the threshold question of whether this appeal is reviewable. The record on appeal does not contain a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court. See Practice Book § 64-1 (a), formerly § 4059 (a). The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 61-10, formerly § 4007; Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 87, 733 A.2d 307, cert. denied, 250 Conn. 926, 738 A.2d 653 (1999). This court has repeatedly emphasized the importance of compliance with Practice Book § 64-1 and has frequently declined to review claims when the appellant fails to provide the court with an adequate record for review. State v. Beliveau, 52 Conn. App. 475, 480-81, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998); Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997); State v. Rios, 30 Conn. App. 712, 714-15, 622 A.2d 618 (1993). More specifically, we have declined to afford review where the “record on appeal” failed to contain a signed copy of the trial court’s oral memorandum of decision. Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 607-609; Emigrant Savings Bank v. Erickson, supra, 53-54.

The requirements of Practice Book § 64-1 are not met by simply filing with the appellate clerk a transcript of the entire trial court proceedings. Tolchinsky v. East Lyme, 43 Conn. App. 456, 457, 683 A.2d 747 (1996); see State v. Yopp, 35 Conn. App. 740, 749-50, 646 A.2d 298 (1994) (declining review when neither written memorandum of decision nor transcript signed by trial court was included in record). A transcript is not even required to be filed in all appeals. See Practice Book § 63-4 (a) (3), formerly § 4013.* **** Moreover, a transcript of colloquies between the trial court and counsel is of limited, if any, assistance to the reviewing court. Thus, we have held that the signature of the trial court on an entire trial transcript does not satisfy Practice Book § 64-1. Auric Answering Service, Inc. v. Glenayre Electronics, Inc., supra, 54 Conn. App. 88. Perhaps of greater significance is the fact that the Appellate Court is not even required to consult a transcript, although it may do so in a proper case. Practice Book § 67-1, formerly § 4064.* * Thus, it is more than possible that significant matters that are only in the transcript and not in the briefs or appendices may not come to the attention of the reviewing court. This is because they are not in the “record on appeal.”

A discussion of what we mean by the “record on appeal” may be helpful. The chief clerk of the Appellate Court is responsible for the preparation and certification of the record on appeal. Practice Book § 68-2, formerly § 4085. “Counsel have no responsibility for the preparation of the record other than [that] the appellant and appellee must submit (1) a preliminary statement of issues on appeal; (2) a designation of the specific trial pleadings that they deem necessary to include in the record; and (3) a docketing statement detailing certain background information on the case and the parties. If a party believes the trial record is defective or inadequate, he must resort to a motion for rectification or articulation.” C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 4.3 (a). An example of a defective or inadequate record requiring rectification would be the omission by the clerk of the trial court’s written or transcribed oral decision.

“To determine what to include, the chief clerk must study the case with sufficient care and study the designation of contents of records required to be submitted by the parties. In preparing the record, the chief clerk is permitted to confer with counsel and with the clerk of the court. Although the clerk is responsible for the preparation of the record, the appellant should double check to [e]nsure that all necessary portions are included because an inadequate record may generate an appellate remand or refusal to review.” (Internal quotation marks omitted.) Id., § 4.4 (a).

“In a case tried to the court, the record must contain the decision of the trial judge. If the decision was in writing, the record should include the memorandum of decision. If the decision was oral, the record should include the court reporter’s transcription of the court’s decision, signed by the judge.”* Id., § 4.4 (b). We note that our rales of practice do not provide for the inclusion of the trial transcript as part of the record on appeal. In fact, the contrary is true. “The rules state that no portion of the transcript of evidence should be designated for inclusion, a proscription that also applies to the clerk in the actual printing of the record.” Id., § 3.20; see Practice Book § 63-4 (a) (2).

In the present case, therefore, we could decline to review the appeal on the ground that the trial court’s oral decision, as transcribed, was not included in the record on appeal. On occasion, however, there have been cases in which we have reviewed claims of error despite an unsigned transcript because the transcript contained a sufficiently detailéd and concise statement of the trial court’s findings. Emerald Ridge Property Owners Assn. v. Thornton, 54 Conn. App. 6, 8, 732 A.2d 804 (1999); State v. Sandra O., 51 Conn. App. 463, 465, 724 A.2d 1127 (1999).

This is one of those cases. Although the plaintiff was derelict in her duty to furnish an appropriate record, the defendant has come to her rescue by including, in his appendix, an unsigned copy of the transcript of the trial court’s oral decision. The posture of this appeal, therefore, is that we have before us an unsigned copy of the couxt’s decision although the plaintiff has failed to make it a part of the record on appeal. To refuse to review the appeal because it was furnished by the wrong paxty and because the couxt’s signature is lacking would exalt foim over substance. Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993) (where transcript contained detailed and concise statement of trial court’s findings and conclusions, this court reviewed defendants’ claim on appeal in absence of written memorandum or signed ti’anscxipt of oi'al decision so as not to exalt form over substance). Accordingly, because we can discern the court’s reasoning from the material furnished to us by the defendant, we will exercise our discretion and review the appeal.

II

CONSTITUTIONALITY

The plaintiff first claims that there was insufficient evidence of probable cause for her arrest because the initial stop was unconstitutional. We commence our analysis by xxoting that review of the commissioner’s action is highly restricted. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). Neither the trial court nor this court, may retry the case or substitute its judgment for that of the commissioner. Buckley v. Mustio, 200 Conn. 1, 3, 509 A.2d 489 (1986). “In order to sustain an administrative decision, all that is required is that the determination be reasonably supported by the evidence in the record. . . . [T]he plaintiff bears the burden of proving that the commissioner’s decision to suspend a motor vehicle operating privilege was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” (Citation omitted; internal quotation marks omitted.) Costello v. Kozlowski, 47 Conn. App. 111, 114-15, 702 A.2d 1197 (1997). Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue reasonably could be inferred. Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 331, 732 A.2d 144 (1999). Accordingly, “if there is evidence . . . which reasonably supports the decision of the commissioner, [the trial court] cannot disturb the conclusion reached by him.” DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975).

The plaintiff contends that the checkpoint stop was an unconstitutional seizure. It is well established law that even though stopping a vehicle at a checkpoint is a seizure under both the federal and state constitutions, such investigatory seizures and detention are permitted under both constitutions. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990); State v. Boisvert, 40 Conn. App. 420, 426, 671 A.2d 834, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996).

This court has held that a roadside checkpoint, established for the purpose of detecting violations of § 14-227a (a), does not violate our state constitution. State v. Boisvert, supra, 40 Conn. App. 426. We concluded in that decision that “sobriety checkpoints are a valid exercise of police power under our state constitution, that no requirement of a ‘reasonable or articulable suspicion’ must exist for the initial stop, and that the balancing test ... is the proper test to be utilized. That test determines whether the strength of the public interest in combating the threat to public safety of operators of motor vehicles whose ability to operate may be impaired due to the consumption of intoxicating liquor, and the effectiveness of roadside checkpoints outweigh the minimal intrusion on a motorist’s privacy.” Id.

In balancing the public interest in safety against the privacy rights of motor vehicle operators, “[minimal intrusion in the interest of public safety may be allowed in the form of checkpoint stops when the stop is conducted pursuant to a practice embodying neutral criteria.” Id. The proper approach is to apply the balancing test on a case-specific basis to ensure that “[a] citizen’s reasonable right to privacy [is not] subject to random or arbitrary intrusions merely at the whim of law enforcement.” Id.

Itr the present case, the record reflects that the South-ington police set up a checkpoint, stopped traffic going in both directions, posted signs alerting drivers to the checkpoint’s existence and provided them with the opportunity to exit the turnpike prior to the checkpoint. All vehicles that entered the checkpoint were stopped. The officers asked specific questions to each operator and looked for signs that the operator might be under the influence of intoxicating liquor or drugs.

Our review of the circumstances surrounding the checkpoint satisfies us that the stop of the plaintiffs vehicle did not subject her to a random or arbitrary intrusion. The court reasonably could have concluded that the checkpoint was operated according to neutral guidelines, and that the underlying facts justified the hearing officer’s conclusion that the need to deter fatal and personal injuries clearly outweighed the minor intrusion on the operator’s right to privacy.

Ill

ARTICULABLE SUSPICION

The plaintiff next claims that the police improperly detained her for further investigation. As stated in part II of this opinion, there is no requirement of a reasonable or articulable suspicion to effectuate a valid stop at a checkpoint. Id. For the officer to continue his investigation, however, he must have a reasonable and articulable suspicion that the person has committed or is about to commit a crime. See Price-Crowley v. Kozlowski, 49 Conn. App. 481, 485, 714 A.2d 719, cert. denied, 247 Conn. 919, 722 A.2d 811 (1998). The plaintiff argues that, because the record does not evidence a reasonable or articulable suspicion as to why the first officer detained the plaintiff for additional questioning, the continued detainment was unconstitutional. More specifically, the plaintiff bases her argument on the fact that the A-44 police form was completed by the second officer, and not the first officer. We are not persuaded.

“[I]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . . . the decision must be upheld.” (Internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 709, 692 A.2d 834 (1997). Under the substantial evidence rule, evidence is sufficient to sustain an agency’s finding if it affords a substantial basis of fact from which the fact in issue reasonably can be inferred. Id.

Here, the original officer stopped the plaintiff when she entered the checkpoint. Upon questioning her, the first officer directed her to pull into a nearby parking lot for further investigation by a second officer. The plaintiff claims that there is no articulable suspicion for continuing the investigation with a second officer because there is nothing in the record from the first officer to support it. The second officer, who continued the investigation, clearly stated in his A-44 form that he smelled a strong odor of alcohol as he approached the plaintiff and that her eyes were red and glassy. The hearing officer logically could have inferred that, if the second officer noticed a strong odor of alcohol and observed the plaintiffs red, glassy eyes, those characteristics existed moments before and that the first officer relied on them as his articulable suspicion for the extension of the initial stop. Accordingly, we conclude that there was substantial evidence to support the finding that a reasonable and articulable suspicion existed to warrant further investigation.

IV

PUBLIC HIGHWAY

The plaintiffs final claim is that the police lacked probable cause to arrest her for operation of a motor vehicle on a public highway. The plaintiff relies on the fact that the A-44 form is defective because the police officer failed to put a check mark in a box on the form labeled “Operation on a Public Road.” This argument must fail.

A similar omission occurred in Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987), where the endorsement by a witness to the refusal to take a blood alcohol test was omitted from the police report. Because no objection was raised to the admission of the report at the license suspension hearing, our Supreme Court held that consideration of it by the hearing officer was not improper and the absence of the endorsement did not preclude reliance on the form to justify suspension of the plaintiffs license to operate a motor vehicle. Id.

In the present case, the plaintiff attempts to distinguish Volck on the grounds that the plaintiff in Volck failed to object to the defective report, whereas the plaintiff in this case objected to its admission. The plaintiff, however, expressly stated, through counsel, that she had no objection to the admission of the A-44 form, although she did object to the narrative attached thereto. Additionally, at the hearing before the trial court, the plaintiffs counsel expressly acknowledged the failure to object to the admission of the A-44 form at the motor vehicle hearing. Accordingly, Volck is directly on point.

The plaintiff further argues that there is nothing in the record from which a hearing officer reasonably could infer that the location where the plaintiff was stopped was a public highway. The question of whether a roadway is a public highway is a question of fact. Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984). Except for the missing check mark, there is nothing in the A-44 form, or the narrative attached thereto, that gives any suggestion that the Meriden-Waterbury Turnpike is not a public highway. In fact, the opposite is true. To conclude that it was not a public highway, we would have to commence with the assumption that the Southington police went onto private property to set up a sobriety checkpoint. Without supporting evidence, that, is not a reasonable assumption.

Furthermore, this was not, a criminal prosecution in which the state had the burden of proving every element beyond a reasonable doubt. This was an appeal from an administrative hearing in which the plaintiff had the burden of showing that the commissioner, through his hearing officer, acted contrary to law and in abuse of his discretion. Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 17, 327 A.2d 569 (1973). The silence of the record as to an issue does not satisfy the plaintiffs burden of proof. See Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 207, 493 A.2d 275 (1985). This claim, therefore, has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g), provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both ... (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such pei-son was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. ...” (Emphasis added.)

       General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drag or both if he operates a motor vehicle on apublie highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       See footnote 1.

         See footnote 1.

       At the time this appeal was taken, Practice Book § 4059 (a), now § 64-1, provided as follows: “Except in small claims actions and as provided in Sec. 4060 [now § 64-2], (1) in judgments in trials to the court in civil and criminal matters, (2) in decisions on aggravating and mitigating factors in capital penalty hearings conducted to the court, (3) in decisions upon motions to dismiss under Sec. 814 [now § 41-8], (4) in decisions on motions to suppress under Sec. 820 [now § 41-12], and (5) in decisions granting a motion to set aside a verdict under Sec. 320 [now § 16-35], and (6) in any other decisions which constitute a final judgment for purposes of appeal under Sec. 4000 [now § 61-1], but do not terminate the proceedings, the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and ihe factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, Ihe trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office."

       Practice Book § 63-4 (a), formerly § 4013, provides in relevant part: “At the time the appellant sends a copy of the endorsed appeal form and the docket sheet to the appellate clerk, the appellant shall also send the appellate clerk an original and one copy of . . .

        “(3) A certificate stating that no transcript is deemed necessary, or a copy of the transcript order acknowledgement form . . .

       Practice Book § 67-1, formerly § 4064, provides in relevant part: “The evidence referred to in the brief, and in the appendix if one is filed, will be deemed to embrace all testimony produced at the trial material to the issues on the appeal, although the court may, if sufficient cause appears, consult the transcript of evidence on file or the trial court case file to supplement or explain the evidence. . . .” (Emphasis added.)

       Practice Book § 68-2, formerly § 4085, provides: “As soon as possible after the filing of the appellant’s brief, the appellate clerk shall prepare and certify the record for use upon the hearing in the court having appellate jurisdiction of any case the file of which has been delivered to or prepared by such clerk.
      “Upon certification of the record by the appellate clerk, the appellant shall cause the record to be photocopied in accordance with these rules.”

       Practice Book § 68-11, formerly § 4096, provides: “The oral or written decision shall become a part of the record on appeal. See Sections 64-1 and 64-2.”

       We do not intend this opinion to be critical of the trial court, which properly stated its findings of fact and conclusions of law in accordance with the letter and spirit of Practice Book § 4059, now § 64-1. See footnote 5. The problem arose when appellate counsel failed to take the necessary steps to have the transcribed oral decision signed and filed as part of the record on appeal.

       The trial court in an oral decision stated as follows: “I’m prepared to rule on this case. Regarding the issue of the checkpoint stop. In State v. Boisvert, 40 Conn. App. 420, [426, 671 A.2d 834, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996)] the court holds: ‘Minimal intrusion in the interest of public safety may be allowed in the form of checkpoint stops when the stop is conducted pursuant to a practice embodying neutral criteria.’ Now in that case, which of course was a criminal case and involved an operating under the influence checkpoint, they did have extensive information about the state procedures that were followed, the state police procedures. . . .
      “Now, as to the second issue that [the plaintiffs counsel] raises, when you send someone from the checkpoint for further testing, reasonable, articulable suspicion has to exist. I think, you know, that for the purposes of an administrative appeal, it’s not the weight of the evidence, it’s whether substantial evidence exists, and I think it’s a reasonable inference to make that if the other officer shortly after notices a strong odor of alcohol as he approached [the plaintiffs] vehicle, that odor of alcohol would have existed shortly before that, and her reddened, glossy eyes would similarly have existed before that.
      “On the public highway issue, I’ve looked at the cases cited, and the cases that involve administrative hearings are the parking lot cases, which I think are distinguishable from this case. The reference to the Meriden-Waterbury Turnpike suggests a public highway, the fact that the Southington police chose this road to establish a checkpoint also suggests that it’s a public highway. Sol find that 1 here is substant ial evidence that it is a public highway.
      “Clearly, she was operating, the officers had probable cause, as clearly demonstrated in the report, and she was tested and exceeded the limits, and was, of course, arrested. So I’m going to dismiss the appeal.”

       The fourth amendment to the United States constitution states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       In Michigan Dept. of State Police v. Sitz, supra, 496 U.S. 450, the United States Supreme Court upheld the constitutionality of the “use of sobriety checkpoints generally.”

       The plaintiff improperly assumes that the guidelines promulgated in the department of public safety’s administrative and organizational manual apply to local police departments as well as to the state police.

       The parties did not raise and we do not decide the following: Is the question of whether the police have reasonable and articulable suspicion to justify an investigative stop outside the scope of the four issues to be considered at a § 14-227b license suspension hearing.

       The plaintiffs brief states that she objected to the admission into evidence before the hearing officer of the form A-44 police report. The following excerpt from the transcript of the hearing does not support this.
      “My name is William Grady and I will be the hearing officer. At this hearing, the form prescribed by subsection (c) of § 14-227b, the A-44 form, will be offered for evidence. Attorney [for the plaintiff], would you identity yourself for the record.
      “Plaintiffs Counsel: Yes, good afternoon Mr. Commissioner, my name is Gregory Thompson.
      “Hearing Officer: Thank you. At this time I would offer to be placed into evidencie and marked as state’s exhibit A, a copy of the A-44, test record and a five page supplement. Any objection?
      “Plaintiffs Counsel: Yes, commissioner. No as to the A-44, yes as to the attached narrative.” (Emphasis added.)
      The A-44, as well as the attached narrative, was admitted into evidence by the hearing officer.

       See footnote 2.

       See footnote 17.

       In the trial court,, the plaintiffs counsel stated: "The last issue is simply that I believe, unfortunately, that, the A-44 was not objected to, from what I understand, as being admitted into evidence.”


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. ALBERT J. GREEN
    (AC 18704)
    Schaller, Spear and Spallone, Js.
    Argued June 1
    officially released November 9, 1999

      Jeremiah Donovan, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Albert J. Green, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70, kidnapping in the first degree in violation of General Statutes § 53a-92 and threatening in violation of General Statutes § 53a-62. The defendant claims that the trial court improperly (1) allowed the victim’s father to testify concerning her out-of-court statements about the sexual assault, (2) excluded evidence that the defendant and the victim had engaged in consensual sex on the day preceding the incident, (3) admitted a coat hanger as an exhibit, (4) limited voir dire concerning the authenticity of a knife and its ultimate admission as an exhibit, (5) denied the defendant’s motion for acquittal on the charge of kidnapping because of insufficiency of the evidence and (6) excluded testimony that the victim refused to meet with an investigator from the public defender’s office. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim lived with her two children. She and the defendant, who is the father of her five year old son, had been involved in a seven year relationship. After approximately six years of living with the defendant, the victim, and her children moved to an apartment to which the defendant did not have a key. The defendant was not on the lease and did not take responsibility for any of the utility bills. The defendant, however, visited the apartment almost every day, and kept clothes and received some mail there.

Prior to August 31, 1997, the relationship between the defendant and the victim had deteriorated to a point where they engaged in daily confrontations. The defendant, despite the denials of the victim, was suspicious and jealous of other men, including boyfriends of the victim during her high school years. The victim was considering ending her relationship with the defendant.

On August 31, 1997, while the children played and watched television, the victim and the defendant went to the bedroom, where the defendant, in an agitated condition, began to look through the telephone book. He told the victim that he was checking on her. He referred to a former boyfriend of the victim and said he believed that she was “cheating” and that he “wanted the truth.” The defendant procured a knife from the kitchen, returned to the bedroom and shut the door, stating that he was “going to find out the truth.” The victim began to cry and continued to deny any involvement.

The defendant declared that he did not believe her, that he was tired of her crying and whining. He stuffed two socks in the victim’s mouth and tied a belt around her head and mouth to secure the socks. With the knife he had brought from the kitchen, he stabbed the mattress, about one foot from the victim, three times. He warned the victim that if he did not get the truth from her, he would cripple her by sticking the knife into her right leg above her knee and twisting it. He placed the knife on her knee but did not push it in. He then placed the knife on the bed and told the victim to pick it up. After she refused, the defendant retrieved the knife and told her to remove her pants. The victim did so, after which she was told to lie on the bed, to bring her knees to her chest and to put her arms to her side. The defendant then tied her arms and legs together. While the victim was tied, the defendant assaulted the victim by inserting a wire coat hanger and moving it back and forth, first in the victim’s vagina, then in her rectum.

The victim struggled and, in so doing, broke away from the belt with which the defendant had bound her. The victim begged the defendant to stop. The defendant responded that if he were in her position he also would beg. The defendant acknowledged that he had gone too far and “had to finish it.” He stated that he was so angry that he was “ready to kill somebody.”

The victim pleaded that if he loved her he would stop. The defendant, pausing, responded, “I’m going to give you a chance. Take the kids and go now.” The victim, after cleaning blood from her body in the bathroom, put on a pair of jeans, gathered her children and left.

The victim went directly to her parents’ house where she met her father in the yard and told him of the events that occurred. The father drove her to a hospital where she was examined by Russell Stokes, an expert in emergency medicine.

Stokes testified that his examination disclosed red marks and bruising on the victim’s left wrist, which was consistent with her having been bound. His internal pelvic examination disclosed several recent scratches and lesions in the area of her vaginal opening. He also found internal scratches and the presence of blood in the victim’s rectal area, leading him to conclude that they were caused by recent trauma. On cross-examination, Stokes testified that the injuries he described could not have been caused during sexual intercourse, particularly in the rectal area.

When the police apprehended the defendant, he denied his identity at first. The police also went to the victim’s apartment and seized the two belts with which the victim had been bound. Also retrieved was the telephone book, which was on the bed, a small knife with a black handle attached to it by three rivets and a coat hanger. The hanger, after examination at the police forensic laboratory, was found to be encrusted with dried blood and also contained urobilinogen, a component of feces.

I

The defendant first claims that the trial court improperly permitted the victim’s father to testify as to what the victim had related to him about the incident with the defendant in violation of our Supreme Court’s holding in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). We do not agree.

Even if the court improperly admitted the father’s testimony, such error, in the context of the entire evidence, was harmless. The court made an evidentiary ruling, not constitutional in nature, which requires the defendant to establish on appeal that the error was harmful. State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980). The defendant must establish “that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); State v. Wilkes, 236 Conn. 176, 188, 671 A.2d 1296 (1996). Further, the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict. State v. Askew, 245 Conn. 351, 371-72, 716 A.2d 36 (1998).

The defendant has failed to satisfy either of those requirements. The father’s testimony was minimal and did not elaborate on any lurid details of the crime. The court instructed the jury that the testimony should not be considered substantively, but only in evaluating the victim’s credibility. The challenged testimony followed the victim’s lengthy and highly detailed testimony. It preceded the detailed testimony of Stokes, the emergency room physician, which included a much more detailed history of the events related by the victim as well as a detailed account of the physical observations made by Stokes. The details testified to by the physician so overwhelm the minimal testimony of the father that it would be pure speculation to believe that the father’s testimony was a major consideration of the jury as to the substance of the events that occurred.

II

In his second claim, the defendant asserts that the trial court improperly precluded him from offering evidence of prior consensual sexual activity with the victim. We are not persuaded.

The defendant made several attempts to introduce evidence that he and the victim had engaged in consensual sexual intercourse on the day preceding the sexual assault. Defense counsel stated to the court: “The reason I ask about sex is that I think those injuries that are described would be consistent with having performed vaginal and anal sex sometime in close proximity to the events alleged.” The court precluded the inquiry, but indicated that it would reconsider the request at a later stage in the trial, provided the defendant established a proper medical foundation.

The court properly exercised its discretion in precluding such evidence because there was no medical foundation for how consensual intercourse could be the source of the internal rectal scratches and bleeding, particularly since defense counsel specifically disavowed any claims of anal intercourse in the time period preceding the sexual assault. As to the vaginal scratches, the defendant presented no evidence whatsoever to support his contention that they could have been caused by consensual intercourse. In fact, the testimony of Stokes, the attending physician, was that he did not believe that it was possible for the vaginal scratches to be caused in the course of consensual intercourse. Further, Stokes inadvertently mentioned prior consensual sex between the victim and the defendant, thereby placing such activity before the jury. Notwithstanding that the evidence did not establish the time frame of the consensual sex, the defendant failed to make any effort to establish that it occurred the day preceding the alleged crimes.

Again, the defendant’s assertion, without an offer of medical proof that consensual intercourse could cause vaginal scratches and rectal bleeding, is speculative, not probative. The medical evidence that was introduced directly refuted such an assertion. The court properly excluded the evidence as irrelevant.

Ill

As a third claim of impropriety, the defendant alleges that the trial court abused its discretion in admitting the coat hanger into evidence. He claims that the state failed to lay a foundation that adequately established the identity and unaltered condition of the hanger from the time it was seized from the victim’s home to when it was examined by a state criminologist. There is no merit to such a contention.

An object connected with the commission of a crime must be shown to be in substantially the same condition as when the crime was committed before it can be properly admitted into evidence. State v. Pollitt, 205 Conn. 61, 88, 530 A.2d 155 (1987); State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). The court has broad discretion on this evidentiary issue, and its ruling may not be overturned on appellate review except for a dear-abuse of discretion. State v. Johnson, supra, 233. The state’s burden with respect to establishing a chain of custody is met by showing “that it is reasonably probable that the substance has not been changed in important respects . . . .” State v. Jones, 167 Conn. 228, 239-40, 355 A.2d 95 (1974). “The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it . . . .” (Internal quotation marks omitted.) State v. Piskorski, 177 Conn. 677, 697, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). There is no hard and fast rule that the state must exclude or disprove all possibility that the article has been tampered with. State v. Conroy, 194 Conn. 623, 625, 484 A.2d 448 (1984).

There was no evidence presented indicating that the coat hanger was tampered with in any way. The defendant’s assertions to the contrary are merely speculative. See State v. Burns, 23 Conn. App. 602, 615, 583 A.2d 1296 (1990). The defendant has the obligation of affirmatively showing that the evidence was in some way tampered with, altered, misplaced, mislabeled or otherwise mishandled to establish an abuse of the court’s discretion in admitting the evidence. See State v. Barnes, 47 Conn. App. 590, 596-97, 706 A.2d 1000 (1998). The court properly admitted the coat hanger in this case.

IV

The defendant’s next claim is that the trial court improperly admitted into evidence a knife seized from the victim’s home. The essence of the defendant’s argument is that the court unduly limited his voir dire of the victim when he attempted to inquire about a statement she gave to the police on August 31,1997, in which she described the knife used in the assault as containing two rivets in the handle as opposed to the three rivets shown in the exhibit.

In response to further voir dire, the victim was sure that the knife shown to her at trial was the one used in the incident. The defendant’s claim of impropriety is totally without merit. Although the court limited the voir dire as to the victim’s prior statement, the defendant was not restricted from a full cross-examination of the victim concerning the knife and, in fact, he makes no claim that his cross-examination was subject to any court imposed limitation. This claim therefore fails.

V

The defendant’s fifth claim is that there was insufficient evidence to support his conviction of kidnapping in the first degree. He claims that the state failed to present sufficient evidence to establish an abduction. We disagree.

In reviewing claims of insufficiency of the evidence, an appellate court must first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts impliedly found by the jury. The court must then determine, on the facts thus established and the inferences reasonably drawn therefrom, whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Stanley, 223 Conn. 674, 677, 613 A.2d 788 (1992).

The defendant claims that the evidence failed to establish an abduction, a necessary element of the crime of kidnapping in the first degree. The court instructed the jury pursuant to General Statutes § 53a-91 (2) (B), that “abduct” means to restrain a person with intent to prevent his liberation by using or threatening to use physical force or intimidation.

Our Supreme Court has repeatedly held that if all of the elements of kidnapping, including specific intent to restrain, are proven beyond a reasonable doubt, the defendant may be convicted of kidnapping in addition to another crime, even if both offenses arise from the same conduct. State v. Vass, 191 Conn. 604, 614-15, 469 A.2d 767 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). Where the perpetrator’s underlying motive for detention is the consummation of another crime, such intent does not preclude a conviction for kidnapping. State v. Lee, 177 Conn. 335, 344, 417 A.2d 354 (1979).

The defendant claims that the restraint applied in this case was merely incidental to the commission of the sexual assault. The question for the jury to decide is not whether the kidnapping was incidental to the sexual assault; State v. Williamson, 206 Conn. 685, 709-10, 539 A.2d 561 (1988); but whether the evidence of intent to restrain was sufficient to support a conviction for kidnapping. State v. Briggs, supra, 179 Conn. 339; State v. Burak, 12 Conn. App. 613, 615-16, 533 A.2d 237 (1987) (defendant may be convicted of two crimes that derive from same conduct where state able to prove beyond reasonable doubt essential elements of each crime). Further, the kidnapping statute does not require proof of restraint for any length of time or asportation for any distance to establish an abduction. State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977).

The evidence presented to the jury was that the defendant held the victim on the bed with a knife to her throat, threatened to cripple her by stabbing her in the knee, bound her arms and legs with belts, stabbed the knife into the mattress and stuffed socks into her mouth to prevent an outcry. That evidence provides an ample basis for the jury’s conviction of kidnapping in the first degree.

VI

The defendant claims last that the trial court improperly precluded him from offering evidence that the victim had declined to meet with an investigator from the public defender’s office who was working on the defendant’s behalf. We do not agree.

Additional facts are necessary for the resolution of this claim. On November 10,1997, Arthur Brautigan, an investigator from the public defender’s office, contacted the victim and scheduled an appointment to interview her on November 12,1997. Prior to the interview, the victim canceled, stating that she felt uncomfortable discussing the case with him. On December 2, 1997, however, a social worker employed by the public defender’s office working on the defendant’s behalf conducted a lengthy telephone interview with the victim. The social worker prepared a five page summary of that interview, which essentially repeated the victim’s testimony and detailed other abuse by the defendant. Those facts were not refuted by the defendant.

The defendant’s claim is not constitutional but is evidentiary in nature. Our standard of review is whether the court abused its wide discretion in ruling on the relevance of the disputed evidence. State v. Alvarez, 216 Conn. 301, 309, 579 A.2d 515 (1990).

When the defendant attempted to cross-examine the victim concerning her cancelation of the November 12, 1997 interview, the state objected on the ground of relevance. The court declined to rule at the time, stating: “Why don’t you go on to something else and we’ll pick it up later.” The defendant, however, concluded his examination of the victim without pursuing the issue further and did not ask the court to rule. In addition, the court was well aware that the victim had cooperated with the defendant subsequent to the canceled interview when she submitted to a later telephone interview with the social worker. We find no abuse of discretion and hold this claim to be without merit.

Our close review of all the claims set forth by the defendant fails to disclose that the court’s rulings were improper or not in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       In State v. Troupe, supra, 237 Conn. 304, our Supreme Court modified the constancy of accusation doctrine, holding “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.” The defendant did not raise a Troupe claim in the trial court, but suggests that this claim was preserved at trial by his hearsay objection to the victim’s father’s testimony.

       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; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person . . . .”