author: NORCOTT, J.

text:
    CENTER SHOPS OF EAST GRANBY, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST GRANBY ET AL.
    (SC 16110)
    McDonald, C. J., and Borden, Norcott, Katz and Sullivan, Js.
    Argued February 17
    officially released May 16, 2000

      Donald R. Holtman, for the appellants (defendants).

      John W. Bradley, Jr., with whom was Louis B. Rome, for the appellees (plaintiffs).
   Opinion

NORCOTT, J.

The following facts were stipulated to by the parties. The plaintiffs are the owners of two abutting parcels of land in the town. The individual plaintiffs, Harold L. Pierce, Michael B. Guarco and Philip D. Main, are coowners of a 0.45 acre parcel of land on which they sought to construct a building housing a gasoline service station and a convenience store. The named plaintiff, Center Shops of East Granby, Inc. (Center Shops), owns an adjoining parcel on which it sought to construct an entrance and exit to serve the gasoline service station/convenience store, as well as several parking spaces for use by customers of the gasoline service station/convenience store. Both parcels are located in a business zone subject to the zoning regulations of the town. The plaintiffs B and D Petroleum Sales, Inc., and Decker and Company (Decker) are agents for the plaintiff property owners.

In October, 1995, the plaintiff property owners retained the services of Decker, a Massachusetts corporation, to act as their agent in connection with their applications for site plan approval and a special permit to construct a gasoline service station/convenience store and revised site plan approval to allow for ingress to, and egress from, the gasoline service station/convenience store and for parking spaces for its customers. On September 23, 1996, Decker filed with the commission an application for a special permit accompanied by a site plan as to the parcel owned by Pierce, Guarco and Main, designated application 96-17, and also filed an application for the approval of a site plan relating to the parcel owned by Center Shops, designated application 96-16. On October 30, 1996, Decker agreed to a sixty-five day extension for the commission to take action on the site plan application of Center Shops in order that the consideration of the revised site plan application would coincide with the consideration of the special permit application and site plan approval for the gasoline service station/convenience store.

The commission scheduled a public hearing on the application for a special permit and approval of a site plan for the gasoline service station/convenience store on November 26, 1996. At that hearing, Decker withdrew the applications of the corporate and individual plaintiffs because they needed to obtain an inland wetlands permit. The commission agreed to treat the withdrawn applications as immediately resubmitted and received without payment of additional fees. The commission treated the applications as new and they were renumbered from 96-17 and 96-16, to 96-22 and 96-21, respectively. On January 10, 1997, the town’s inland wetlands agency granted a permit to the plaintiffs with conditions.

Following a request from the commission, dated January 8, 1997, Decker agreed in writing to a one week extension to the start of the required public hearing on the application for a special permit and the approval of the site plan for the gasoline service station/convenience store. The public hearing was then scheduled for February 4,1997. On January 28,1997, the commission published a notice of the public hearing to be held on application 96-22. The notice, however, was not timely published as required by § 8-7d. At the hearing on February 4, 1997, the commission continued the public hearing on the special permit until February 25, 1997, to allow for republication of the notice.

On February 13 and 20, 1997, the commission published notice of the public hearing scheduled for February 25, 1997. This notice did not state the time of the hearing as required by General Statutes § 8-3c (b). At the February 25, 1997 hearing, the plaintiffs did not participate and refused to agree to any further extensions. At its regularly scheduled meeting on April 1, 1997, the commission met and denied application 96-22, the plaintiffs’ application for a special permit and approval of a site plan for a gasoline service station/ convenience store. It also denied application 96-21, Center Shops’ application for approval of its revised site plan showing an entrance, exit and parking spaces to be used in connection with the gasoline service station/ convenience store.

On May 8,1997, the plaintiffs brought this mandamus action against the defendants, claiming that the commission violated §§ 8-3c and 8-7d. The plaintiffs alleged that notices of the meetings on the special permit, and its accompanying site plan for a gasoline service station/ convenience store, were legally defective because they did not state the time of the hearing, and one notice was published only eight days before the scheduled hearing of which it purported to give notice. Center Shops also alleged that the commission failed to render a decision on its revised site plan within sixty-five days of receiving the plan. The plaintiffs claimed that the purported hearings held on February 4 and 25, 1997, were nullities and that the statutory violations resulted in automatic approval of both the application for a special permit and site plan approval for a gasoline service station/convenience store and the application for revised site plan approval allowing construction of an entrance, exit and parking spaces. The trial court agreed with the plaintiffs and granted the relief requested. The Appellate Court affirmed the judgment of the trial court, concluding that Center Shops’ revised site plan application was automatically approved pursuant to § 8-3 (g) because the commission had failed to act within the time provided in § 8-7d, and also concluding that the denial of the individual plaintiffs’ applica-lion for a special permit and approval of the site plan was void as a result of the commission’s failure to provide proper notice and that, consequently, the individual plaintiffs’ site plan warranted automatic approval pursuant to § 8-3 (g). Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 52 Conn. App. 772-80. Concluding that the individual plaintiffs’ site plan application and the special permit application were inseparable, the Appellate Court held that the special permit application also was automatically approved pursuant to §§ 8-3 (g) and 8-7d. Id., 780. We granted certification to review the Appellate Court’s holding with respect to the automatic approval of the individual plaintiffs’ application for a special permit.

Upon appeal before this court, the plaintiffs initially remind us that we previously have concluded that §§ 8-3 (g) and 8-7d (b), which provide for the automatic approval of site plan applications, are applicable to the submission of a site plan that is inseparable from an application for a special permit. SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 336-37, 559 A.2d 196 (1989). Indeed, as both parties to the present case suggest, our decisions in cases such as SSM Associates Ltd. Partnership and its progeny have led to some confusion in this particular area of the law. It has been noted that “the concept of a site plan has become muddled, which has led to a confusing series of decisions in the Connecticut Appellate and Supreme Courts. Specifically, the problem lies in the difficulty in distinguishing between a site plan application and a special permit application.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 181. We attempt to resolve this confusion here.

In SSM Associates Ltd. Partnership v. Plan & Zoning Commission, supra, 211 Conn. 336, the parties stipulated before trial that the site plan and special permit applications were inseparable. Accordingly, we noted that “the application for a special permit includes submission of a site plan which is inseparable from the requirement that the [p]laintiffs secure a special permit.” (Internal quotation marks omitted.) Id. We concluded that “[a]s a result of this stipulation, the defendants have no factual basis for mounting a theoretical distinction between a special permit and a site plan. Indeed, as the plaintiffs remind us, the defendants in effect conceded the absence of such a factual distinction in their pleadings at trial. . . . The plaintiffs have never filed, and were never asked to file, a separate application for a special permit.” Id., 336-37. Thus, in SSM Associates Ltd. Partnership, it was this critical lack of distinction between the application for the site plan and the application for the special permit — particular to the factual scenario at hand — that allowed “the Appellate Court correctly [to conclude] that the commission’s failure to act within sixty-five days on the plaintiffs’ application, whether it be denominated a special permit or a site plan application, triggered its automatic approval in accordance with §§ 8-3 (g) and 8-7d (b).” (Emphasis added.) Id., 337.

The narrow, fact-bound determination of SSM Associates Ltd. Partnership, however, is distinguishable from the present case. Here, there was no such stipulation intertwining the site plan application with the application for the special permit. The plaintiffs were required to file an application for a special permit for the gasoline service station. We are not unmindful of the fact that “[p]ursuant to the East Granby zoning regulations, gasoline service stations are permitted in a business zone, subject to the granting of a special permit and approval of a site plan by the commission . . . .” (Emphasis added.) Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 52 Conn. App. 764 n.2. Unlike in SSM Associates Ltd. Partnership, the applications in the present case are separate, in accordance with § X (A) (1) (c) of the East Granby zoning regulations, which provides that “[b]efore the Commission approves a Special Permit, it shall determine that: the accompanying Site Plan application is in conformance with the applicable provisions of these Regulations . . . .” It is also noteworthy that in SSM Associates Ltd. Partnership, the application for a special permit was for the construction of an office building on a property designated a “Designed Research District,” for which construction was permitted without special approval. SSM Associates Ltd. Partnership v. Plan & Zoning Commission, supra, 211 Conn. 333. A hearing was not required to be held on the application and, therefore, the special permit in SSM Associates Ltd. Partnership was not the kind of special permit at issue in the present case, where the special permit is for a use not permitted as of right; it is for a use — namely, the construction of a gasoline service station — that must, under the town zoning regulations, be scrutinized by the commission and reviewed at a required public hearing.

For the purposes of clarification, we conclude that this court’s rationale in SSM Associates Ltd. Partnership is limited to the narrow factual pattern presented in that case: when the application for the special permit is integral to and virtually indistinguishable from the application for the site plan, and when the use sought is a permitted use such that a public hearing is not required, the statutory provisions regarding automatic approval are activated. In the absence of such facts, however, and unless otherwise set forth in the relevant town regulations, the special permit and the site plan are not inseparable and, therefore, do not meld into a single entity warranting such statutory procedure. The plaintiffs’ argument in this case is flawed in that it completely denudes the special permit of its particular status. “A specially permitted use enjoys a unique status in a town’s planning and zoning scheme because it generally is not restricted to a particular zoning district. ‘The basic rationale for the special permit [is] . . . that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. Common specially permitted uses, for example, are hospitals, churches and schools in residential zones. These uses are not as intrusive as commercial uses would be, yet they do generate parking and traffic problems that, if not properly planned for, might undermine the residential character of the neighborhood. If authorized only upon the granting of a special permit which may be issued after the [zoning] board is satisfied that parking and traffic problems have been satisfactorily worked out, land usage in the community can be more flexibly arranged than if schools, churches and similar uses had to be allowed anywhere within a particular zoning district, or not at all.’ T. Tondro, [supra, pp. 175-76].” Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 612-13, 610 A.2d 1205 (1992). The factual circumstances in SSM Associates Ltd. Partnership — specifically, the critical combination of both the town zoning regulations at issue in that case (requiring a special permit application for a permitted use) and the factual stipulations made by the parties prior to trial — are not representative of a common link between special permits and site plans. To read it as such, as the Appellate Court did in the present case, is improper in that it renders the special permit a nullity.

Our decision here is distinguishable from that of the Appellate Court in Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358 (1986). In Carr, the Appellate Court noted that “§ 8-3 (g) provides in relevant part: ‘The zoning regulations may require that a site plan be filed with the commission ... to aid in determining the conformity of a proposed building, use or structure with specific proposed regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period in section 8-7d.’ We note that there is an inconsistency in the use of the term, ‘site plan,’ between the first and third sentences of this section. The first sentence connotes that the site plan is but a part of the application approval process, namely, as an aid in determining whether a proposed use conforms to the regulations. The third sentence contemplates automatic approval of a site plan by the passage of time, as if approval of the site plan carries with it approval of the entire application with respect to which, under the first sentence, the site plan is simply an aid to determine the conformity of the proposed use with the regulations. We need not resolve this inconsistency here, however, because in this case we view the plaintiffs site development plan as inseparable from, and part and parcel of, its accompanying documents.” Id., 699-700. Accordingly, our decision in the present case resolves exactly the issue that the court in Carr did not need to address: when a site plan is separable from its accompanying documents and the special permit application is for a use not permitted as of right, the provisions of § 8-3 (g) are not applicable and the time constraints specified in § 8-7d do not control.

We note, however, that the Appellate Court correctly declined to extend our holding in Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993). In that case, the plaintiffs claimed that they were entitled to the automatic approval of their site plan application to permit the construction of an asphalt plant in Colchester because the town zoning board of appeals wrongfully believed that it lacked jurisdiction over the appeal and, therefore, failed to hold a timely public hearing pursuant to § 8-7d. Id., 434. The town zoning commission previously had denied the plaintiffs’ application because of safety and environmental concerns. Id., 435. The plaintiffs had appealed from the denial to the zoning board of appeals. Id. In the meantime, the zoning commission determined that asphalt plants were no longer permitted to be built in Colchester and, consequently, the board of appeals concluded that the appeal regarding the construction of an asphalt plant in Colchester was moot and “left [the zoning board of appeals] with no jurisdiction to act on the [plaintiffs’] appeal.” Id. The plaintiffs then sought a writ of mandamus to compel the zoning board of appeals to issue a certificate approving their site plan application because it had failed to fulfill the statutory obligations of § 8-7d. Id., 436. The trial court granted the plaintiffs’ requested relief and the Appellate Court affirmed. Id., 434. This court reversed the judgment of the Appellate Court, concluding that zoning boards of appeals are not subject to the automatic approval doctrine. Id., 446. “Zoning boards of appeals do not perform the same function as zoning commissions. Zoning boards of appeals do not adjudicate initial land use applications, but review those already acted upon by a municipality’s zoning commission or enforcement officer. . . . The board’s appellate function is not advanced by the substitution of an automatic approval for a decision of an appeal on its merits.” Id., 445.

As the Appellate Court correctly observed here, “[t]he present case is two steps removed from Leo Fedus & Sons Construction Co. It does not involve a zoning board of appeals, and it concerns a special permit filed with a site plan accompanying it, whereas Leo Fedus & Sons Construction Co. concerned a site plan only.” Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 52 Conn. App. 780.

Where, as here, the special permit application necessarily must contain a site plan, that fact, by itself, does not trigger automatic approval of either the special permit or its accompanying site plan, pursuant to §§ 8-3 (g) and 8-7d, when the commission does not meet the time limits set forth by § 8-3c (b). Automatic approval would negate the meaning that we have long attached to the concept of a special permit. By virtue of its unique status, a special permit for a purpose not permitted as of right necessarily must be considered by a town’s planning and zoning commission. It would be folly for a party to escape the categorization of a special permit merely because of bureaucratic error. Such a draconian result is unwarranted and unreasonable in that the public — and the environment — are those that possibly would suffer from such an outcome.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court, and to remand the case to the trial court with direction to render judgment for the defendants.

In this opinion the other justices concurred.

       Pursuant, to the town zoning regulations, gasoline service stations are permitted in a business zone, subject to the granting of a special permit and approval of a site plan by the commission, and retail stores are permitted in abusiness zone, subject only to the approval of a site plan by the commission.

       There are two site plans involved in this case. One site plan accompanied the special permit application of the individual plaintiffs for a gasoline service station/convenience store, and the other site plan is the revised site plan of Center Shops seeking to construct an entrance, an exit, and parking spaces. “The parties stipulated to the factthatthe specialpermitapplication contained other documents and that Center Shops filed one site plan and the individual plaintiffs filed another site plan.” Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 52 Conn. App. 779. Action on the revised site plan did not require apublic hearing, whereas action on the specialpermit and approval of the site plan for a gasoline service station/convenience store did require apublic hearing because gasoline service stations are not apermitted use.

       Because the applications were received on November 26,1996, the sixty-five dayperiodsetforthin§ 8-7d, together with the seven day extension agreed to by the plaintiffs as to the public hearing on the special permit application, expired on February 6,1997.

       The notice also did not state the time of the hearing as required by General Statutes § 8-3c (b), but this defect was not included in the stipulation of the parties.

       General Statutes § 8-7d provides in relevant part: “(a) Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.
      “(b) Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan. . . .”

       General Statutes § 8-3c (b) provides in relevant part: “Notice of the time and place of such hearing [for a special permit] shall be published ... at least twice, at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before the date of such hearing. . . .”

       General Statutes § 8-3c provides in relevant part: “(b) The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2 ... . The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. . . . Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice . . . . Such commission shall decide upon such application or request within the period of time permitted under section 8-7d. Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision. ...”

       General Statutes § 8-3 (g) provides in relevant part: “Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. . . .”

       In Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 446 n.7, 623 A.2d 1007 (1993), we overruled Carr to the extent that it was inconsistent with our decision there.

       Although our grant of certification concerned only the individual plaintiffs’ application for a special permit and approval of the site plan that accompanied it, we reverse the judgment of the Appellate Court as to Center Shops’ application for a revised site plan as well, due to the fact that the two applications, although filed by separate legal entities, concern a single project. We note that at oral argument before the Appellate Court, the plaintiffs conceded, in response to a question by Judge Schaller, that approval of Center Shops’ revised site plan was of no benefit to them without approval of the individual plaintiffs’ application for a special permit and approval of the site plan for the gasoline service station/convenience store.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES GRIFFIN
    (SC 16019)
    McDonald, C. J., and Borden, Katz, Palmer and Sullivan, Js.

      Argued January 13
    officially released May 16, 2000

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was Neal Cone, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

After a jury trial, the defendant, James Griffin, was convicted of felony murder in violation of General Statutes § dSa-Mc, and aiding and abetting robbery in the first degree in violation of General Stat-ules §§ 53a-134 (a) (2) and 53a-8. The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed. On appeal, the defendant claims that he is entitled to a new trial because: (1) the verdict was against the weight of the evidence; and (2) the trial court improperly instructed the jury on reasonable doubt. We reject both of these claims and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In December, 1995, the defendant, who resided in an apartment located at 50 Button Street, New Haven, regularly purchased drugs from Ian Brown, a cocaine dealer known as “Ryder.” The defendant generally contacted Ryder through Ryder’s paging device when the defendant wished to purchase narcotics from him. Ryder usually delivered the drugs to a location across the street from the defendant’s apartment. Although the defendant sometimes picked up the drugs from Ryder, he frequently sent someone else to do so.

On December 13, 1995, at approximately 6 p.m., Carlyle Herring, an acquaintance of the defendant, arrived at the defendant’s apartment. Herring, who was then fifteen years old, had been to the defendant’s apartment to use drugs on a few previous occasions. After engaging Herring in small talk, the defendant told him about a drug dealer named Ryder, whom Herring did not know. The defendant then suggested robbing Ryder of the drugs and cash that Ryder customarily carried. Specifically, the defendant proposed a plan whereby he would contact Ryder to set up a drug buy, and Herring, rather than the defendant, would meet with Ryder, ostensibly to pick up and pay for the drugs. Instead of purchasing the drugs from Ryder, however, Herring would rob Ryder of the drugs and any money that Ryder had in his possession. The defendant further explained that Ryder would be unable to identify Herring because Ryder and Herring did not know one another. After initially rejecting the defendant’s suggestion, Herring agreed to the robbery plan.

The defendant then left the apartment and, upon returning, informed Herring that he had contacted Ryder, who had agreed to deliver the drugs to the usual location. The defendant gave Herring a .38 special revolver, and both Herring and the defendant walked across the street to await Ryder’s arrival. Soon thereafter, the defendant saw Ryder’s car approaching and pointed it out to Herring. As the car pulled up, the defendant hid so that Ryder could not see him.

Herring walked over to Ryder’s car. Ryder was driving and Ira Lawrence, whom Herring also did not know, was sitting in the front passenger seat. Ryder asked Herring to identify himself. Herring stated that he was “Coco’s” little brother and that the defendant had sent him to pick up the “stuff.” Ryder, who knew Coco, identified himself to Herring, and Herring got into the back seat of Ryder’s car. After driving around the block, Ryder pulled over and parked a short distance from the defendant’s apartment.

The three men remained in the car, and Ryder handed Herring a plastic package containing one ounce of cocaine. When Herring did not immediately pay for the cocaine, Ryder told him to return the package and get out of the car. With the package in his possession, Herring exited the vehicle, removed the revolver from his coat pocket, put the revolver to Ryder’s head and threatened to kill Ryder if he did not give Herring all of the money and drugs in his possession. Ryder complied, handing Herring two to three ounces of cocaine and several hundred dollars in cash. Herring then fired two shots, striking Ryder in the thigh and Lawrence in the chest. Ryder drove to the hospital, where Lawrence died as a result of the gunshot wound to his chest. After the shooting, Herring gave the stolen drugs and money to the defendant.

I

The defendant first claims that he is entitled to a new trial on the ground that the verdict was against the weight of the evidence. The state contends that this claim is not reviewable because the defendant failed to seek such relief in the trial court. Alternatively, the state maintains that, even if the defendant’s claim is reviewable, the verdict was not against the weight of the evidence. We conclude that the defendant’s claim is not reviewable.

We first note that the defendant does not contend that the state’s evidence, which consisted primarily of the accomplice testimony of Herring, was insufficient, as a matter of law, to establish the defendant’s guilt beyond a reasonable doubt. The defendant, therefore, does not seek a judgment of acquittal. Rather, he asserts that the state’s case, which was predicated on Herring’s testimony, was so flimsy as to raise a substantial question regarding the reliability of the verdict. Thus, the defendant claims that he should be granted a new trial because of the serious danger that he was wrongly convicted.

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence.” Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988). That power, however, is subject to specific limitations. “The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality. . . . Within these parameters, furthermore, the trial court may set a verdict aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.” (Citation omitted; internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992). The authority of the trial court to set aside a verdict that is against the weight of the evidence is grounded in the fact that “the action of a jury may be as unreasonable, and as suggestive of being produced by improper influences, in passing upon the credibility of witnesses and in the weighing of conflicting testimony, as in any other respect. It is one of the duties of a judge, in the due performance of his [or her] part injury trials, to see to it that such influences, apparently operating upon the jury, do not prevail, and manifest injustice thereby be done.” (Internal quotation marks omitted.) State v. Avcollie, 178 Conn. 450, 457, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), quoting Roma v. Thames River Specialties Co., 90 Conn. 18, 20, 96 A. 169 (1915).

As we repeatedly have emphasized, the trial court is uniquely situated to entertain a motion to set aside a verdict as against the weight of the evidence because, unlike an appellate court, the “trial [court] has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence.” Palomba v. Gray, supra, 208 Conn. 24-25; accord Ginsberg v. Fusaro, 225 Conn. 420, 431, 623 A.2d 1014 (1993); see also American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 775. Indeed, we have observed that, “[i]n passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict.” (Internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 267, 604 A.2d 793 (1992); accord State v. Avcollie, supra, 178 Conn. 456. “[T]he trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” Palomba v. Gray, supra, 25; accord Ginsberg v. Fusaro, supra, 431. Of necessity, therefore, an appellate court’s inquiry must focus on whether the trial court abused its broad discretion in acting on a motion to set aside a verdict that allegedly is contrary to the weight of the evidence. See, e.g., Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000); American National Fire Ins. Co. v. Schuss, supra, 774-75; Palomba v. Gray, supra, 24.

It follows inexorably from the nature of the defendant’s claim, namely, that the testimony of the state’s key witness, Herring, was not believable, that the defendant’s failure to raise such a claim in the trial court is fatal to his claim on appeal. On a cold record, we cannot meaningfully assess Herring’s credibility to determine whether his testimony, which, if credited, concededly was sufficient to support the defendant’s convictions, nevertheless was so unworthy of belief as to warrant a conclusion that allowing the verdict to stand would constitute a manifest injustice. See Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 334, 732 A.2d 144 (1999) (“[b]ecause we have nothing before us but a cold record, credibility determinations are not within our bailiwick”); State v. Hodge, 248 Conn. 207, 253-54, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999) (“appellate review of a cold record is no substitute for the ability of the trial court to witness firsthand a [witness’] responses and demeanor”). Only the trial judge was in a position to evaluate Herring’s testimony, along with the other relevant evidence, to make such a determination. We, therefore, decline to review the defendant’s claim.

II

The defendant also contends that the trial court’s jury instructions on reasonable doubt improperly diluted the state’s burden of proof in violation of his rights under the fourteenth amendment to the federal constitution and article first, §§ 8 and 9, of the Connecticut constitution.* Because the defendant raised no objection at trial to the court’s charge on reasonable doubt, he concedes that his claim is impreserved. The defendant asserts, however, that he is entitled to a new trial because he has satisfied the requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in which we 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 in original.) Id., 239-40. Although we agree with the defendant that the record is adequate for our review of his claim, he cannot prevail because he has failed to establish a constitutional violation.

The defendant argues that four separate statements contained in the trial court’s charge on reasonable doubt violated his federal and state constitutional rights to due process. Specifically, the defendant contends that the court improperly explained to the jury that reasonable doubt is: (1) “not a surmise, a guess or mere conjecture”; (2) “areal doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence”; and (3) “such a doubt, as in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act in matters of importance.” The defendant also challenges the language in the court’s charge providing that, “[i]f two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, you must adopt the one of innocence.”

“It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) .... The [reasonable doubt concept] provides concrete substance for the presumption of innocence— that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [Id.], 363. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). [Consequently] [t]he defendants in a criminal case are entitled to a clear and unequivocal charge by the court that the guilt of the defendants must be proved beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. DelVecchio, 191 Conn. 412, 419-20, 464 A.2d 813 (1983).

In determining whether a trial court’s charge satisfies constitutional requirements, however, “individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is 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. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 536-37, 679 A.2d 902 (1996).

We previously have applied this standard of review in rejecting each of the claims advanced by the defendant, concluding that, in the context of the court’s entire charge on reasonable doubt, the challenged language did not dilute the state’s burden of proof. Thus, we have approved a reasonable doubt instruction containing the statement that such a doubt is not “a surmise, a guess or a conjecture”; (internal quotation marks omitted) State v. Simms, 201 Conn. 395, 420, 518 A.2d 35 (1986); see also State v. Derrico, 181 Conn. 151, 170, 171 & n.4, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980) (“not a surmise or a guess or a conjecture”); and an instruction explaining that a reasonable doubt is not a “surmise, or a guess, or a speculation . . . .” State v. Butler, 207 Conn. 619, 634, 543 A.2d 270 (1988); see also State v. Small, 242 Conn. 93, 114-15 & n.17, 700 A.2d 617 (1997) (rejecting constitutional challenge to charge containing explanation that reasonable doubt “is more than a guess or a surmise”). We also repeatedly have upheld the constitutionality of an instruction characterizing reasonable doubt as “a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence”; (internal quotation marks omitted) State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); see also State v. Hines, 243 Conn. 796, 816-20, 709 A.2d 522 (1998). Furthermore, both the United States Supreme Court; see Victor v. Nebraska, 511 U.S. 1, 18, 21, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994); and this court; see State v. Morant, 242 Conn. 666, 688, 701 A.2d 1 (1997); State v. Smith, 210 Conn. 132, 147-50, 554 A.2d 713 (1989); have reached the same conclusion with respect to an explanation that reasonable doubt is a doubt that would cause a reasonably prudent person to “hesitate” to act in matters of importance. The defendant has provided no persuasive reason why these challenged instructions, when viewed in the context of an otherwise accurate and thorough charge on reasonable doubt, diminish the state’s burden of proof.

We also have rejected challenges to an instruction providing that, if two conclusions reasonably can be drawn from the evidence, one of guilt and one of innocence, the jury must adopt the conclusion of innocence. E. g., State v. Smith, 219 Conn. 160, 166-67, 592 A.2d 382 (1991); State v. Dyson, 217 Conn. 498, 503-504, 586 A.2d 610 (1991). We previously have approved this so-called “two-inference” instruction in light of the fact that it did not “diminish the state’s burden where [t]he charge as a whole correctly instructed the jury as to the state’s burden of proof.” (Internal quotation marks omitted.) State v. Smith, supra, 166, quoting State v. Dyson, supra, 504. In upholding the use of the language, we recognized that the United States Court of Appeals for the Second Circuit, at the time of our decision in Dyson, recently had prohibited the use of such an instruction because the “instruction by implication suggests that a preponderance of the evidence standard is relevant, when it is not. Moreover, the instruction does not go far enough. It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but not strong enough to be beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Dyson, supra, 504, quoting United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987); see also State v. Gant, 231 Conn. 43, 49, 646 A.2d 835, cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995) (recognizing possible danger of two-inference instruction).

We see no reason to depart from our prior determination that the two-inference charge, when viewed in the context of an otherwise proper instruction on reasonable doubt, does not impermissibly dilute the state’s burden of proof. Consequently, the defendant cannot prevail on his final claim of constitutional impropriety. Nevertheless, we now are persuaded, for the reasons articulated by the Second Circuit, that “standing alone, such language may mislead a jury into thinking that the [state’s] burden is somehow less than proof beyond a reasonable doubt.” United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989); accord United States v. Khan, supra, 821 F.2d 93. We, therefore, invoke our supervisory authority over the administration of justice to direct that, in the future, our trial courts refrain from using the “two-inference” language so as to avoid any suchpos-sible misunderstanding.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides in relevant part: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a-134 provides in relevant pail: “(a) 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 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”
      General Statutes § 53a-133, which defines robbery, provides: “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 for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-8 provides in relevant part: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. ...”

       The trial court sentenced the defendant to concurrent prison terms of forty-five years and twenty years on the felony murder and the robbery charges, respectively, for a total effective sentence of forty-five years.

       The defendant appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       Ryder, who testified at trial, expected to be paid $800 for the ounce of cocaine.

       Herring testified that he did not know why he had fired the revolver after Ryder had complied with his demand to turn over the drugs and money.

       The defendant moved for a judgment of acquittal at the close of the state’s case and after the defendant had rested without presenting any evidence. On appeal, he does not challenge the trial court’s denial of these motions.

       At the time of trial, Herring had pleaded guilty to felony murder, robbery and assault for his role in the robbery and shooting, and faced a maximum prison term of 100 years. The defendant claims that the state’s case against him rested entirely on Herring’s uncorroborated and self-serving testimony; the state maintains that Herring’s testimony was supported by significant circumstantial indicia of reliability. Our review of the record indicates that, although Herring’s testimony provided the sole direct evidence of the defendant’s guilt, Herring’s version of the events was buttressed by other evidence regarding the manner in which the robbery was conceived and carried out. We do not address this issue further, however, in light of our conclusion that the defendant’s claim for a new trial, raised for the first time on appeal, is not reviewable.

       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 . . .

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “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 trial court charged the jury on reasonable doubt as follows: “In this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with this defendant when he was first presented for trial in this case. It continues with him throughout this trial unless and until such time as all the evidence produced here in the orderly conduct of the case, considered in the light of these instructions of law, and deliberated upon by you in the jury room, satisfies you beyond a reasonable doubt that he is guilty.
      “The burden to prove the defendant guilty of the crimes 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.
      “Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony but on the nature and quality of the testimony. Please bear in mind that one witness’ testimony is sufficient to convict if it establishes all of the evidence of the crime beyond a reasonable doubt.
      “The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture. Nor is it a doubt suggested by the ingenuity of a juror not warranted by the evidence. It is such a doubt, as in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion. If two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, you must adopt the one of innocence.”
      We also note that, in its jury instructions on the elements of the crimes charged, the trial court repeatedly emphasized that the state bore the burden at all times to establish each of the elements of those crimes beyond a reasonable doubt.

       The defendant contends that the state constitution “require [s] a more stringent view of instructions intended to explain the concept of ‘proof beyond a reasonable doubt’ than the more forgiving federal jurisprudence . . . .” We need not resolve this claim, however, because, even if it is assumed, arguendo, that the state constitution “requirejs] a more stringent view” of a trial court’s instructions on reasonable doubt than the federal constitution, the defendant cannot prevail under that more stringent standard.

       We note, however, that the “hesitate to act” instruction has been criticized as unhelpful “because the analogy it uses seems misplaced. In the decisions people make in the most important of their own affairs, resolution of conflicts about past events does not usually play a major role. Indeed, decisions we make in the most important affairs of our lives — choosing a spouse, a job, a place to live, and the like — generally involve a very heavy element of uncertainty and risk-taking. They are wholly unlike the decisions jurors ought to make in criminal cases.” (Internal quotation marks omitted.) Victor v. Nebraska, supra, 511 U.S. 24 (Ginsburg, J., concurring in part;), quoting Federal Judicial Center, Pattern Criminal Jury Instructions (1987) pp. 28-29, commentary on Instruction No. 21. Moreover, Judge Jon O. Newman, of the United States Court of Appeals for the Second Circuit, has stated: “Although, as a district judge, I dutifully repeated [the ‘hesitate to act’ language] to juries in scores of criminal trials, I was always bemused by its ambiguity. If the jurors encounter a doubt that would cause them to ‘hesitate to act in a matter of importance,’ what are they to do then? Should they decline to convict, because they have reached a point of hesitation, or should they simply hesitate, then ask themselves whether, in their own private matters, they would resolve the doubt in favor of action, and, if so, continue on to convict?” J. Newman, “Beyond ‘Reasonable Doubt,’ ” 68 N.Y.U. L. Rev. 979, 982-83 (1993); see also note, “Reasonable Doubt: An Argument Against Definition,” 108 Harv. L. Rev. 1955, 1968-69 (1995) (“the commonly used ‘hesitate to act’ definition, which defines a reasonable doubt as ‘the land of doubt that would make a reasonable person hesitate to act in the most important of his own affairs,’ has drawn widespread criticism for trivializing a criminal verdict by analogizing it to decisions jurors make in their personal lives”).

       We wish to underscore the fact that, “[although [the reasonable doubt] standard is an ancient and honored aspect of our criminal justice system, it defies easy explication.” Victor v. Nebraska, supra, 511 U.S. 5. Indeed, “[w]e have recognized that [attempts to explain the term reasonable doubt do not usually result in making it any clearer to the minds of the jury. . . . We have further noted that [¡Judicial attempts to clarify the meaning of the phrase reasonable doubt by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead.” (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 476, 678 A.2d 910 (1996); accord State v. Webb, 238 Conn. 389, 457, 680 A.2d 147 (1996); State v. Figueroa, 235 Conn. 145, 184, 665 A.2d 63 (1995); State v. Marra, 222 Conn. 506, 536, 610 A.2d 1113 (1992); State v. Butler, supra, 207 Conn. 636; State v. DelVecchio, supra, 191 Conn. 420. Thus, “we have repeatedly stated that attempts to clarify reasonable doubt should be avoided because they often tend to obfuscate that concept.” State v. Faust, supra, 476.

       “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers.” (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 175-76 n.47, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

       We note that we previously have invoked our supervisory authority to prohibit the use of certain instructional language, even though we previously had approved the use of such language, because the challenged portion of the instruction, when considered in isolation, gave rise to a danger of juror confusion or misunderstanding. See State v. Delvalle, 250 Conn. 466, 473-76, 736 A.2d 125 (1999) (prohibiting future use of charge that reasonable doubt is not “a doubt suggested by the ingenuity of counsel” [internal quotation marks omitted]); State v. Schiappa, 248 Conn. 132, 168, 175, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999) (prohibiting future use of charge that requirement of proof beyond reasonable doubt is “a rule of law . . . made to protect the innocent and not the guilty” [internal quotation marks omitted]).

       The following is a permissible alternative to the two-inference charge: “If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.” 5 D. Borden & L. Orland, Connecticut Practice: Criminal Jury Instructions (Sup. 1999) § 2.9, pp. 2-3. This language, if utilized, logically would follow the instruction given by the trial court in this case that “[p]roof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.” Footnote 12 of this opinion; see also 5 D. Borden & L. Orland, supra, § 2.9, p. 2.