text:
    State of Connecticut v. William J. Milardo
    (14311)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued September 22, 1992
    decision released January 12, 1993

      Thomas W. Ude, Jr., special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John T. Red-way, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellee (state).
   Callahan, J.

This appeal concerns several issues arising out of the criminal trial of the defendant, William Milardo. The state charged the defendant in a two part information. The first part charged the defendant with the crimes of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-49 (a) (2), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), unlawful restraint in the first degree in violation of General Statutes § 53a-95, and two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The second part of the information charged the defendant with being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b). A jury returned verdicts of guilty of attempted sexual assault in the first degree, unlawful restraint in the first degree and unlawful restraint in the second degree in violation of General Statutes § 53a-96 as a lesser included offense of kidnapping. The jury then convicted the defendant of being a persistent serious felony offender. Following the defendant’s convictions, the court sentenced him to a term of imprisonment of twenty years. He appeals to this court pursuant to General Statutes § 51-199 (b) (3). We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On May 4, 1990, at approximately 12 p.m., the victim, a student at Wesleyan University in Middle-town, was in her bedroom located on the second floor of the two-story house that the defendant, the victim and three others rented. The victim was awake, lying in bed under the covers. At that time, the defendant opened her bedroom door, and, while standing in her doorway, inquired as to the whereabouts of one of their other housemates. The defendant then walked toward the victim, whispering, “Shuh, shuh, shuh,” as he approached her. He then got onto the victim’s bed, pulled her covers off, lay on top of her, and said, “Kiss me.” The victim struggled and the defendant pinned her arms down and placed his hand over her mouth to prevent her from screaming. The defendant also put his hands under the victim’s shirt, grabbed her breasts, and put his hand down her pants and underneath her underpants.

During the encounter another young woman, a friend of the victim, who also lived in the house, returned home. Upon entering, she heard muffled screams. Startled, she went to the victim’s bedroom, opened the door, and saw the defendant lying on top of victim. Seeing the victim’s friend, the defendant climbed off the victim and moved to the edge of the bed. Alarmed, the victim’s friend yelled, “What the hell is going on here?” The defendant responded, “Nothing, nothing.” The victim’s friend then went to her own bedroom and attempted to call campus security.

The defendant entered the bedroom of the victim’s friend and attacked her, grabbing her neck and holding her in a headlock. The victim heard her friend cry out and went to her aid. The victim struggled with the defendant, trying to free the other woman. The two women then screamed and advised the defendant that if he did not leave they would call the police. Eventually, the defendant left the house.

On appeal, the defendant claims that: (1) there was insufficient evidence from which a jury could reasonably have concluded that the defendant attempted to commit sexual assault in the first degree; (2) the trial court improperly instructed the jury on his alibi defense; (3) the trial court failed to instruct the jury properly that in order to convict the defendant of attempted sexual assault in the first degree it must find proven beyond a reasonable doubt that the defendant intended to compel sexual intercourse; (4) the trial court improperly instructed the jury on the charge of sexual assault in the first degree by reciting the entire statutory definition of sexual intercourse; (5) the trial court improperly denied the defendant’s request to instruct the jury that the attempted third degree sexual assault was a lesser included offense of attempted first degree sexual assault; and (6) the trial court’s instruction regarding the persistent serious felony statute denied the plaintiff due process of law.

I

The defendant first claims that there was insufficient evidence from which a jury could have concluded beyond a reasonable doubt that he acted with the intent to commit the crime of attempted sexual assault in the first degree. We disagree.

When reviewing a claim of insufficiency of evidence, our task is twofold: “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

Every element of the crime charged must be established by proof beyond a reasonable doubt. The basic facts underlying the elements of the crime charged, however, may be reasonably inferred by the factfinder. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). “If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992); State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991).

In order to convict the defendant of attempted sexual assault in the first degree in violation of §§ 53a-70 and 53a-49 (a) (2), the state must have proven beyond a reasonable doubt that “the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse”; (emphasis added) State v. Green, 194 Conn. 258, 273, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); and that the defendant took a “substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a) (2).

Intent may be inferred from the conduct of the accused. State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990); State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). The intent of the actor is an issue to be determined by the trier of fact. State v. Carpenter, supra, 83. Likewise, what constitutes a “substantial step” in any given case is a matter of degree and a “question of fact” for the jury. State v. Green, supra, 275. The substantial step must be “at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” Id., 272; State v. Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1954).

The jury heard evidence that the defendant, believing that he was alone in the house -with the victim, entered the victim’s bedroom without invitation and, despite her resistance, lay on top of her, muffled her screams, kissed her, placed his hands under her shirt and pants, and forcibly touched her breasts and genital area. The jury could reasonably have found from this evidence that the defendant intended to compel the victim to engage in sexual intercourse, had he not been interrupted by the victim’s friend soon after the assault had begun. The jury also could reasonably have found from the evidence of his actions that the defendant had taken a substantial step toward the commission of the crime of sexual assault in the first degree, and that the substantial step evinced the defendant’s specific intent to commit that crime.

The defendant also argues that there was insufficient evidence to. prove that he had the requisite intent to commit sexual assault in the first degree because the evidence of intent to compel sexual intercourse cannot be distinguished from intent to compel sexual contact, an element of the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a (a). We disagree.

We have held that even if a jury could infer from a given set of facts that a defendant might have intended to commit a crime other than that charged, the jury is not precluded from reasonably finding that he intended to commit the crime with which he was charged. State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). That holding has application here. After the defendant had pinned down the victim, muffled her screams, and began forcibly touching her breasts and genital area, the defendant’s assault was cut short only when the victim’s friend entered the bedroom and confronted him. The jury could reasonably have inferred that the defendant intended his actions to culminate in compelled sexual intercourse rather than the sexual contact that had already occurred before the victim’s friend interrupted his attack.

Because not every person who commits sexual assault has intercourse as their ultimate objective, the legislature in the penal code has distinguished between sexual assault with sexual intercourse as its goal and sexual assault with sexual contact as its goal. Even though the jury could have found that the defendant had intended to compel only sexual contact, it could also reasonably have inferred that the defendant intended to compel the victim to engage in sexual intercourse. State v. Morrill, supra. We conclude that there was sufficient evidence for the jury to have found proven beyond a reasonable doubt that the defendant had the requisite intent to convict him of attempted sexual assault in the first degree.

II

The defendant next claims that the trial court’s instruction on alibi: (1) improperly shifted the burden of proof to the defendant to raise a reasonable doubt as to his presence at the scene of the crime; and (2) effectively permitted the jury to convict him if it found that he had merely been present at the scene of the crime, thereby violating his state and federal constitutional rights to due process. We do not agree.

At trial, the defendant presented several witnesses who testified that at the time of the alleged sexual assault on the victim he had been at Bud’s Cafe in Portland. The defendant requested the trial court to charge the jury that “[i]n the final analysis, the state, in addition to its ordinary burden of proving the essential elements of its case beyond a reasonable doubt, has as well the burden of disproving the alibi evidence beyond a reasonable doubt.”

The trial court refused to charge as the defendant had requested. Just prior to instructing the jury on the substantive offenses with which the defendant was charged, however, the court instructed the jury concerning the defendant’s alibi. Contrary to the defendant’s first claim that the trial court’s instruction shifted the burden of proof to the defendant to raise a reasonable doubt as to his presence, the trial court’s initial alibi instruction explicitly charged the jury that the burden of proof remained with the state: “I want to make this clear to you, the burden never shifts from the State, the burden which rests upon the State to prove the accused guilty of the charge beyond a reasonable doubt involves proof that he was present at the scene of the crime when it was committed. The accused does not have to prove his claim that he was elsewhere, it’s the burden of the State to prove that he was at the scene of the crime.”

After the trial court instructed the jury regarding the substantive offenses, the defendant objected to the trial court’s charge to the jury regarding his alibi. In response, the trial court reinstructed the jury that the burden to prove that the defendant had been present at the scene of the crime never shifted from the state, and that, if the alibi witnesses created a reasonable doubt concerning the defendant’s presence, then the jury must find the defendant not guilty.

Under our law of alibi, “where an alibi is asserted and relied upon as a defense, the accused is entitled to have the jury instructed that the evidence offered by him upon that subject is to be considered by them in connection with all the rest, in determining whether he was present, and if a reasonable doubt upon that point exists, it is their duty to acquit.” (Internal quotation marks omitted.) State v. McKnight, 191 Conn. 564, 584, 469 A.2d 397 (1983); State v. Butler, 207 Conn. 619, 631, 543 A.2d 270 (1988). The trial court’s instruction accurately expressed the law. Contrary to the defendant’s contention, the trial court was not required to instruct the jury explicitly that the state must disprove his alibi defense beyond a reasonable doubt.

Even if, as the defendant contends, the trial court was required to instruct the jury, in accordance with his request, that the state had to disprove his alibi beyond a reasonable doubt, the record reveals that the court did in fact do so. In the course of its charge the court stated: “If his defense raises a reasonable doubt you must find him not guilty. If the State’s evidence proves all the elements including his presence beyond a reasonable doubt then necessarily his defense will have been disproved so it is correct for me to say to you that the State’s evidence must disprove his defense beyond a reasonable doubt.” (Emphasis added.) Consequently, the trial court essentially incorporated the defendant’s request to charge in its instruction.

The defendant next argues that the trial court violated his state and federal constitutional rights to due process of law because the court’s alibi instruction had the effect of permitting the jury to convict him if it found that he was merely present at the scene of the crime. The defendant further maintains that, although he did not articulate a constitutional claim when he took exception to the trial court’s charge, his claim is entitled to appellate review.

A defendant can prevail on an unpreserved claim 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 the harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant offers as the source for the alleged constitutional violation the following language from the court’s charge: “If the evidence that was produced by the defendant about his presence raises a reasonable doubt, raises a reasonable doubt in your mind as to his presence at the scene of the crime, you must find him not guilty. If the evidence proves beyond a reasonable doubt that he was at number 5 Frazier Avenue you must find him guilty.” Although this sentence might give rise to a constitutional violation, if read in isolation from the rest of the instructions on alibi, it fails under the third prong of Golding when read in the context of those instructions.

We must, however, view the challenged language in the context of the entire alibi instruction “to determine whether it is reasonably possible that the instruction misled the jury.” State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); State v. Lytell, 206 Conn. 657, 664, 539 A. 2d 133 (1988). We will not sever one part of the instruction and analyze it separately from the whole. State v. Johnson, 185 Conn. 163, 168, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).

Our analysis of the entire charge leads us to the conclusion that the jury was not misled by the court’s instruction. The challenged portion of the trial court’s charge appears in one of seven paragraphs covering two transcript pages devoted to the court’s initial alibi instruction. As mentioned above, the other portions of the initial alibi instruction accurately explained the nature of alibi and the state’s burden. Moreover, after the court charged the jury on the substantive offenses, it again devoted seven paragraphs covering two pages of transcript to reinstructing the jury concerning the defendant’s alibi. In the subsequent alibi instruction, the last heard by the jury, the challenged portion of the language initially used does not appear. State v. Gonzalez, 222 Conn. 718, 726, 609 A.2d 1003 (1992). In the context of the court’s entire instruction, therefore, no reasonable juror could have been misled by the challenged portion of the instruction into convicting the defendant of the crimes charged on proof of his mere presence at the scene of the crime. Therefore, no constitutional violation clearly exists, and the defendant’s challenge to the trial court’s alibi instruction fails under the third prong of the Golding test.

III

We next address the defendant’s claim that the trial court violated his federal constitutional rights to due process of law by failing to instruct the jury that, in order to convict him of attempted sexual assault in the first degree, it must find proven beyond a reasonable doubt that the defendant intended to compel the victim to engage in sexual intercourse. Specifically, the defendant asserts that by not specifying in its charge that the requisite intent for attempted sexual assault in the first degree is intent to compel sexual intercourse, the trial court misled the jury to believe that it could convict the defendant without proof beyond a reasonable doubt that the defendant intended to compel the victim to have sexual intercourse. We are not persuaded.

“It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).” (Internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 37, 561 A.2d 897 (1989). A jury instruction is constitutionally adequate if it provides the jurors with “a clear understanding of the elements of the crime charged, and. . . afford[s] proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985). When examining the propriety of the trial court’s instruction, we must examine the instruction as a whole. State v. Ortiz, supra, 667. This analysis may involve considering the trial court’s instructions on a given issue together with other instructions on a related topic in order to determine whether the jury could have interpreted the charge in an impermissible manner. State v. Vasquez, 182 Conn. 242, 251, 438 A.2d 424 (1980).

In explaining the inchoate offense of attempted sexual assault in the first degree, the trial court first instructed the jury concerning the definition of completed sexual assault in the first degree. The court stated that in order to prove an accused guilty of completed sexual assault in the first degree, the state must prove that the accused used force and actually compelled the act of sexual intercourse. Next, the trial court read the statutory meaning of sexual intercourse, and defined force. Finally, after reading the relevant portions of the attempt statute, the trial court instructed the jury concerning the charged crime of attempted sexual assault. The trial court explained that “the first element that we would have to prove was that the defendant had the specific intent to commit the crime of sexual assault in the first degree.”

By charging as it did, the trial court clearly delineated the state’s burden of proof on every element of the crime of attempted sexual assault in the first degree, including intent to compel sexual intercourse. Thus, despite the fact that the trial court never directly incorporated the talismanic words “compel sexual intercourse” by themselves into its definition of attempted sexual assault, an examination of the totality of the trial court’s instructions concerning the inchoate offense reveals that the jurors were adequately informed that in order to convict the defendant of attempted sexual assault in the first degree the state must prove beyond a reasonable doubt that he intended to compel sexual intercourse. In the context of the entire charge, no reasonable juror could have been misled concerning the proper elements of attempted sexual assault in the first degree. State v. Ortiz, supra.

IV

The defendant next claims that the trial court improperly instructed the jury on the charge of attempted sexual assault in the first degree by reading the entire statutory definition of sexual intercourse when there was insufficient evidence that he had attempted to commit all of the statutorily listed ways of accomplishing intercourse. General Statutes § 53a-65 (2). Further, he alleges that the trial court’s reference to the entire statutory definition of sexual intercourse violated his constitutional rights to notice of the crimes with which he was charged and to conduct an adequate cross-examination. We disagree.

During the trial court’s charge on attempted sexual assault in the first degree, the court referred to the elements of the crime of completed sexual assault in the first degree. The trial court’s definition of completed sexual assault in the first degree included the definition of sexual intercourse found in General Statutes (Rev. to 1991) § 53a-65 (2) which provides that “ ‘[sjexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex.”

It strains reason to suggest that reference to the statutory definition of sexual intercourse in the court’s instruction created a burden upon the state to provide sufficient evidence to prove the defendant’s intent to commit each of the acts listed in § 53a-65 (2). The crime of which the defendant was convicted was the inchoate crime of attempt. The state did not have to prove that a specific act of sexual intercourse had occurred because, by definition, no such completed act is part of an attempt. Rather, the state had only to prove that the defendant took a substantial step in a course of conduct that was planned to culminate in intentionally compelling another person to engage in sexual intercourse. Thus, the charge on the element of intent necessary for attempted sexual assault in the first degree need not be more specific than instructing, as the trial court did here, that the state must prove that the defendant intended to compel sexual intercourse, regardless of which of the listed acts in the statutory definition might ultimately have been performed had not the defendant’s attack on the victim been interrupted.

The defendant’s arguments are based on his claim that the state, after first apparently proceeding on a theory that he had attempted only one of the listed acts of sexual intercourse to the exclusion of the others, then effectively switched its theory when the court charged the jury on the entire statutory definition of sexual intercourse and consequently expanded the scope of the substantive offense. The defendant asserts that this alleged error denied him notice of the crimes with which he was charged and his right to cross-examine the witnesses. We disagree.

Contrary to the defendant’s claims, he was clearly afforded notice of the offense with which he was charged and his defense suffered no prejudice because of the trial court’s reading of the entire definition of sexual intercourse. Where the defendant can demonstrate neither unfair surprise nor prejudice, he cannot claim an infringement of his constitutional right to fair notice of the crimes with which he is charged or the denial of his right to conduct an adequate cross-examination. State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); see also State v. Scognamiglio, 202 Conn. 18, 23, 519 A.2d 607 (1987). The instruction on attempted sexual assault in the first degree conformed to and was consistent with both the information and the theory of the prosecution. The first count of the long form information did not specify which of the listed acts of sexual intercourse the defendant was alleged to have intended. The information merely stated that the defendant “did attempt to compel another person [the victim] to engage in sexual intercourse by use of force against such person; all in violation of Sections 53a-70 and 53a-49 (a) (2) of the Connecticut General Statutes.” The fact that the information was in long form and cited to a provision in the General Statutes pertaining generically to compelled sexual intercourse afforded the defendant constitutionally adequate notice of the possibility that the trial court could ultimately incorporate the entire statutory definition of sexual intercourse in its charge to the jury.

The jury was never informed that the state was proceeding on the single theory that the defendant intended to compel vaginal intercourse to the exclusion of the other forms of sexual intercourse listed in § 53a-65 (2). The state’s charged theory of the crime was unitary; ultimately, after clarifying its position with the trial court, it requested that the court charge the complete statutory definition of sexual intercourse. In addition, the testimony of the state’s witnesses tended only to prove that the defendant intended to compel “sexual intercourse,” not that the defendant intended to compel any one of the particular acts of sexual intercourse listed in § 53a-65 (2).

Finally, the defendant’s entire defense was predicated on his alibi that he was not present at the scene of the crime when it occurred. There is nothing in the record to suggest that the defendant would have altered his defense had the defendant believed that the state was proceeding on a theory that the defendant intended one of the particular acts of sexual intercourse to the exclusion of the others listed in § 53a-65 (2). State v. Scognamiglio, supra.

On the basis of these facts, the defendant’s constitutional claims fail because he was not subjected to unfair surprise and he was not prejudiced in the preparation or implementation of his defense by the trial court’s instruction on attempted sexual assault in the first degree.

V

The defendant next claims that the trial court improperly denied his request to charge the jury that attempted sexual assault in the third degree is a lesser included offense of attempted sexual assault in the first degree. We do not agree.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we set forth the test for whether a defendant is entitled to a charge on a lesser included offense. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id.

At trial, the defendant requested an instruction on attempted sexual assault in the third degree. He now argues that his proposed charge satisfied the Whistnant test and should have been given by the court because it is impossible to have attempted to compel sexual intercourse, an element of attempted sexual assault in the first degree, without also having attempted to achieve sexual contact, an element of attempted sexual assault in the third degree.

The crime of sexual assault in the first degree requires that the state prove beyond a reasonable doubt that (1) “the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse”] (emphasis added) State v. Green, supra, 273; and (2) the defendant took a “substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a) (2).

Attempted sexual assault in the third degree, on the other hand, includes an additional element not found in the crime of attempted sexual assault in the first degree, namely, proof that the defendant intended to compel sexual contact for the purpose of either the sexual gratification of the actor or the humiliation or degradation of the victim. See General Statutes § 53a-65 (3).

Because attempted sexual assault in the third degree requires proof of this specific purpose for which sexual contact is made, and attempted sexual assault in the first degree does not require such proof, the two crimes are separate offenses. Consequently, it is possible to commit attempted sexual assault in the first degree without first committing attempted sexual assault in the third degree. Therefore, the defendant’s claim that the trial court improperly denied the defendant’s request to instruct the jury on attempted sexual assault in the third degree fails under the second prong of the Whistnant test. The defendant was not entitled to an instruction on attempted sexual assault in the third degree as a lesser included offense.

VI

The defendant finally claims that the trial court improperly charged the jury on the persistent serious felony offender statute by instructing it that, to convict him of being a persistent serious felony offender, the state did not have to prove that the defendant had actually served one year in prison. In addition, the defendant claims that the trial court effectively directed a verdict of guilty on the persistent serious felony offender count. We disagree with both claims.

During trial on the second part of the information, an assistant clerk of the court testified that the defendant had been convicted of sexual assault in the first degree in 1987, and had been sentenced to a term of imprisonment of seven years, execution suspended after three years. A sheriff testified that on July 19, 1987, he had transported the defendant to prison to begin serving that sentence. Finally, the defendant’s probation officer testified that on August 22,1988, the defendant had told her that he had been released from prison on August 19, 1988.

The trial court gave the following charge: “One of the things that the state must prove beyond a reasonable doubt was that Mr. Milardo was in prison under an imposed term of more than one year for the prior crime. The state must prove beyond a reasonable doubt that the defendant William Milardo was convicted and in prison under an imposed term of more than one year. That means that the state must prove that the defendant received a sentence imposing a period of imprisonment in excess of one year, that means that he had to have served 365 days or more in jail. They do not have to prove, however, any specific length of time that the defendant was actually incarcerated.

“If you find the defendant was sentenced to a period of imprisonment greater than one year then the state has met its burden as to that element and you will recall the testimony of the clerk as to the sentence on the prior crime.”

The defendant argues that the trial court was required to charge that the state must prove beyond a reasonable doubt that the defendant had actually served one year or more in prison. General Statutes (Rev. to 1991) § 53a-40 (b) provides in part that “[a] persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death . . . for a crime. ...”

“Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction or a review of the legislative history.” All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989). Although ambiguities in criminal statutes are ordinarily to be resolved in favor of the defendant, such “statutes are not to be read more broadly than their language plainly requires.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986).

Under the plain reading of § 53a-40 (b), actual service in excess of one year is not an element of the offense. The clear meaning of the words “convicted of and imprisoned under an imposed term of more than one year” requires that the state prove only that the defendant served some amount of time in confinement under a sentence having a term that exceeded one year. Although it is necessary that the persistent serious felony offender actually have been imprisoned, the crucial element of the statute is that the imposed term exceeded one year. If the legislature had intended that one year need actually be served in prison, it could have stated this requirement in § 53a-40 (b).

The defendant also claims that the trial court essentially directed a verdict of guilty on the charge that he was a persistent serious felony offender. We are not persuaded. Following the instructions on the elements required for conviction of the defendant on the persistent serious felony offender count, the trial court stated to the jury: “You can retire to the jury room for your deliberations. You can select a foreperson and you can begin your deliberations when you receive the information. You can render, well, there’s only one verdict and it must be unanimous. When you [have] reached a verdict inform the sheriff that you have reached a verdict but don’t tell him what your verdict is. You’ll be asked to return to the courtroom to announce your verdict, the foreperson will announce the verdict and the rest will be asked whether you agree.” (Emphasis added.)

If viewed in isolation, the trial court’s statement that there was “only one verdict” appears inappropriate. In the context of the entire charge, however, the defendant’s claim is almost frivolous. The court’s statement that there was “only one verdict” obviously referred to the fact that, at this second stage of the trial, where the defendant was charged with only one offense, an offense that entailed no lesser included offenses, there could be but a single verdict, guilty or not guilty. The court’s reference to “only one verdict” could not possibly have led the jury to believe that there were not two alternatives to the one verdict ultimately to be returned. In the context of the charge as a whole, the trial court accurately conveyed to the jury that alternative verdicts were to be considered, namely, guilty or not guilty, although for this one offense ultimately there would be “only one verdict.”

The judgment is affirmed.

In this opinion Peters, C. J., Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. On the basis of the inadequate instructions given, I am convinced that the jury could not have known that the state was required to prove that the defendant intended to compel the victim to engage in sexual intercourse in order to find that he was guilty of attempted sexual assault in the first degree. The trial court never gave this instruction.

I agree with the majority of this court that we must examine the trial court’s instruction as a whole in determining whether the jury charge is sufficient. State v. Avila, 223 Conn. 595, 607, 613 A.2d 731 (1992). But the majority ignores a corollary to this rule—that the jury is presumed to follow the court’s instructions on the law. State v. DellaCamera, 166 Conn. 557, 567, 353 A.2d 750 (1974).

Not only do I believe that the instructions recited by this court in its majority opinion were insufficient, but that portion of the instructions that is missing from the majority’s analysis compels the conclusion that the jury could not have known that intent to compel sexual intercourse was an essential element of the crime.

The majority fails to acknowledge that the trial court first instructed the jury that the state did not have the burden of proving all the elements of sexual assault in the first degree in order to prove attempted sexual assault in the first degree. The court charged as follows: “It’s not the State’s burden to prove all the elements I talk about here. It’s their burden to prove that the defendant’s intent was to commit this act, not that he actually did.” The trial court then explained the elements of sexual assault in the first degree: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by use of force against such other person.” Thereafter, the court defined sexual intercourse. When it came to explaining the elements of attempted sexual assault in the first degree, however, the court stated: “The first element which the State must prove beyond a reasonable doubt to sustain a conviction of this defendant on this charge of attempted sexual assault in the first degree, the first element that we would have to prove was that the defendant had the specific intent to commit the crime of sexual assault in the first degree in any of the ways that I have defined them.” The court never specifically instructed the jury that in order to convict the defendant of attempted sexual assault in the first degree it was required to find beyond a reasonable doubt that he intended to compel sexual intercourse.

To have the specific intent merely to commit the crime of sexual assault in the first degree is insufficient. In State v. Green, 194 Conn. 258, 273, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985), we held that “[t]he state must prove that the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse. ‘It is not enough [just] to show that the defendant intended to do some unspecified criminal act.’ LaFave & Scott, Criminal Law § 59, p. 429.”

On the basis of the instructions given by the trial court, the jury, even if composed of six lawyers, could not have known that the intent to engage in sexual intercourse was an essential element of the crime charged. “Charging a jury is not a matter of abracadabra. No part of the conduct of a criminal trial lays a heavier task upon the presiding judge. The charge is that part of the whole trial which probably exercises the weightiest influence upon jurors. It should guide their understanding after jurors have been subjected to confusion and deflection from the relevant by the stiff partisanship of counsel.” Andres v. United States, 333 U.S. 740, 765-66, 68 S. Ct. 880, 92 L. Ed. 1055 (1948) (Frankfurter, J., concurring.). The jury must receive clear and concise instructions as to what the state must prove in order to find the defendant guilty of the crime charged. No such instructions were given in this case.

The instructions in this case were especially important because the facts that pertained to the crime of attempted sexual assault in the first degree could have been found to satisfy, just as easily, nothing more than sexual contact. As stated in the majority opinion, only the following facts were supported by direct evidence: “He . . . got onto the victim’s bed, pulled her covers off, lay on top of her, and said, ‘Kiss me.’ The victim struggled and the defendant pinned her arms down and placed his hand over her mouth to prevent her from screaming. The defendant also put his hands under the victim’s shirt, grabbed her breasts, and put his hand down her pants and underneath her underpants.” As these facts illustrate, the line between attempted sexual assault in the first degree and sexual contact is very fine. It is difficult to determine when sexual contact becomes an attempted sexual assault. As Justice Holmes noted in Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55 (1901): “[Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a [crime] although there is still a locus penitentiae in the need of a further exertion of the will to complete the crime.”

Anything short of a clear and concise instruction that requires the jury to focus in on the crucial element of the crime charged—that is, intent to compel sexual intercourse—deprives the accused of his constitutional right of due process. The jury’s ability to distinguish between attempted sexual assault in the first degree and sexual assault in the third degree depended entirely on the trial court’s instruction. For all we know, the jury may have thought that sexual contact, instead of the intent to have sexual intercourse, was sufficient to convict the defendant of attempted first degree sexual assault.

I also disagree with the majority’s decision that the trial court properly instructed the jury on the charge of attempted sexual assault in the first degree when it read the entire statutory definition of sexual intercourse. The court instructed the jury as follows: “I would also tell you that sexual intercourse means vaginal intercourse, anal intercourse, fellatio or cunnilingus between parties regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse, fellatio and does not require the emission of semen. Penetration, however, is not required for the commission of cunnilingus. Penetration may be committed by an object placed by the actor into the genital or anal opening of the victim’s body . . . .”

There was absolutely no evidence, nor could any reasonable inference be drawn, to support a jury instruction on methods of attempted intercourse other than vaginal intercourse. On more than one occasion, this court has stated that “[wjhere a person may have been convicted under more than one statutory alternative, the judgment cannot be sustained unless the evidence was sufficient to establish that the defendant was guilty under each statutory provision upon which the jury could have relied. State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).” State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); see also State v. Silveira, 198 Conn. 454, 458-59, 503 A.2d 599 (1986). The basis for this rule is the well established principle, stated at the beginning of this dissent, that jurors are presumed to follow the instructions given by the judge; State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977); and that an instruction on a method of committing a crime that is not supported by the evidence implies that there is a factual issue for the jury to resolve in regard to the method. State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987).

Accordingly, although I agree that there was sufficient evidence upon which the jury could infer that the defendant was guilty of attempted sexual assault in the first degree by attempting to have vaginal intercourse with the victim, albeit very thin, I would reverse and order a new trial for the following reasons: (1) the trial court failed to instruct the jury that the intent to compel sexual intercourse was an essential element of the crime charged; and (2) there was no evidence to support an instruction on methods of sexual intercourse other than vaginal intercourse.

I respectfully dissent.

       “[General Statutes (Rev. to 1991)] Sec. 53a-70. SEXUAL ASSAULT IN THE first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a persons [sic] under thirteen years of age.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
      General Statutes § 53a-49 (a) (2) provides: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes (Rev. to 1991) § 53a-92 (a) (2) (A) provides: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually. . . .”

       “[General Statutes (Rev. to 1991)] Sec. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.
      “(b) Unlawful restraint in the first degree is a class D felony.”

       “General Statutes § 53a-61 (a) (1) provides: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person.”

       General Statutes (Rev. to 1991) § 53a-40 (b) and (g) provide: “(b) A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) and the prior conviction was for a crime other than those enumerated in subsection (a) of this section. . . .
      “(g) When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1,1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.”

       General Statutes § 51-199 (b) (3) provides: “(b) The following matters shall be taken directly to the supreme court . . . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.” (Emphasis added.) Although none of the underlying convictions of the defendant would have qualified his case for appeal directly to this court, his conviction of being a persistent serious felony offender subjected his conviction of attempted sexual assault in the first degree, a class B felony, to the aggravated sentence “for the next more serious degree of felony”; General Statutes (Rev. to 1991) § 53a-40 (g); namely, class A felony. Thus, his appeal was properly filed in this court, rather than in the Appellate Court.

       General Statutes (Rev. to 1991) § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person . . . .”

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

       Because the defendant fails to brief or analyze independently any state constitutional protections, we limit our review to the relevant federal constitutional claim. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       Because, here again, the defendant fails to brief or analyze independently any state constitutional protections, we limit our review to the relevant federal constitutional claim. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       General Statutes (Rev. to 1991) § 53a-65 (2) provides:" ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him . . . .”
      Because, once again, the defendant fails to brief or analyze independently the applicable state constitutional protections, we limit our review to the counterpart federal constitutional claim. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       The defendant claims that the trial court was required constitutionally to specify in its instruction which of the acts listed in the statutory definition of sexual intercourse the defendant had intended to perform. Just as it has been a permissible practice, however, that an information, particularly a long form information, need not specify which act, among others listed, was the means by which a crime was committed; Andersen v. United States, 170 U.S. 481, 500, 18 S. Ct. 689, 42 L. Ed. 1116 (1898); the defendant also is not constitutionally entitled to a charge on the precise manner in which the act was committed. Schad v. Arizona, 501 U.S. , 111 S. Ct. 2491, 2497, 115 L. Ed. 2d 555 (1991). The United States Supreme Court held in Schad that if a single crime can be committed in various ways, the court need not instruct the jury upon the specific method of committing the crime. The same principle holds true with respect to elements of a crime that involve mental states, such as, in this case, the intent to commit sexual intercourse; a court need not specify in its charge to the jury which of the alternative means of satisfying a mens rea element of a particular crime the defendant achieved. Id.

       Indeed, Justice Borden, in his criminal jury charges, points this out when he recommends the following instructions: “In order for you to convict on this offense of attempted sexual assault in the first degree, then, you must be satisfied: (1) that the defendant acted with the intent to compel the victim, by force, to engage in sexual intercourse, and ... (2) he intentionally did anything which, under the circumstances as he believed them to be, was an act constituting a substantial step in a course of conduct which he planned to end in his compelling her to engage in sexual intercourse.” (Emphasis added.) 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 10.3, pp. 281-82.

       General Statutes (Rev. to 1991) § 53a-72a provides in relevant part: “(a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact. . . .” General Statutes (Rev. to 1991) § 53a-65 (3) provides in pertinent part: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .”

       “A jury instruction is constitutionally adequate if it provides the jurors with a ‘clear understanding of the elements of the crime charged,’ and affords ‘them proper guidance for their determination of whether those elements were present.’ . . . An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution.” (Citations omitted.) State v. Avila, 223 Conn. 595, 603, 613 A.2d 731 (1992). .


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Altray Company, Inc. v. John G. Groppo, Commissioner of Revenue Services
    (14468)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued October 29, 1992
    decision released January 26, 1993

      Kenneth E. Werner, with whom, on the brief, was Donald M. Griswold, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Peters, C. J.

The principal issue in this appeal is whether a New York corporation having its primary place of business in Connecticut has engaged in sufficient activity in New York to satisfy the “conducts business” requirement of General Statutes (Rev. to 1985) § 12-218, thereby qualifying the corporation for an apportionment of its taxable income between Connecticut and New York. The plaintiff, Altray Company, Inc. (taxpayer), sought to amend three previously filed tax returns, upon which it had paid Connecticut corporation income taxes, because it claimed the right to apportion income to New York. The defendant, the commissioner of revenue services (commissioner), denied the amended returns and the corresponding request for refund of a portion of the taxes previously paid. The taxpayer sought review in the Superior Court of the commissioner’s final decision denying the refund request. The trial court dismissed the appeal. The taxpayer appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The parties stipulated to the following facts. The taxpayer is a New York corporation with its principal place of business in Greenwich, Connecticut. It is engaged in the import business and primarily acts as an agent facilitating domestic purchases of candies and confectioneries from foreign vendors. In the course of this business, the taxpayer purchases and resells the candies, and arranges to have them shipped from foreign vendors and delivered to subsequent purchasers’ warehouses located in states other than Connecticut and New York.

During 1983,1984 and 1985, the taxpayer augmented the business conducted at its Connecticut office through its president’s numerous, repeated and regular meetings with foreign vendors at his residential apartment in New York City. These meetings averaged in number approximately three per month. At these meetings, held in New York for the convenience of visiting overseas suppliers, the taxpayer placed orders with the foreign vendors.

Because of its incorporation in New York, the taxpayer was subject to that state’s corporation franchise tax. For the relevant income years it paid the statutory minimum tax due to New York. The taxpayer also paid taxes to Connecticut for the privilege of carrying on business in this state, pursuant to General Statutes (Rev. to 1985) § 12-214. In its original returns, filed in 1983, 1984 and 1985, the taxpayer paid the Connecticut tax measured by its entire net income. In 1986, however, the taxpayer filed amended returns for the three prior years that apportioned its net income between Connecticut and New York. Pursuant to this apportionment, the taxpayer recalculated its previously paid Connecticut corporation taxes due. Because this recalculation resulted in a claimed reduction of its tax liability, the taxpayer requested a refund of excess taxes paid, with interest.

The commissioner denied the amended returns, determining that the taxpayer “does not conduct business without the State of Connecticut.” The taxpayer protested this denial, and requested a hearing before the commissioner so that it could present additional evidence regarding its right to apportion its income between Connecticut and New York. After the hearing, the commissioner issued a final order denying the taxpayer’s protest. It concluded that “[t]his company has not established that it conducts business outside of Connecticut .... The audit assessment is found to be correct and lawful.” The commissioner neither decided nor addressed the merits of the taxpayer’s position regarding the amount of the claimed refund or the figures offered to support the refund amount in the event that apportionment should be allowed.

The taxpayer appealed to the Superior Court pursuant to General Statutes (Rev. to 1985) § 12-237, complaining that it was entitled to apportion its income. Specifically, the taxpayer maintained that its activity in New York amounted to conducting business for the purpose of § 12-218. The taxpayer also maintained that, even if its activity was not sufficient to allow apportionment, the commissioner was estopped in this case from denying the claim for a refund. Finally, the taxpayer sought a judgment awarding it the full amount of its requested refund instead of a remand to the commissioner.

The trial court, following a de novo review of the taxpayer’s claim, dismissed the appeal. The trial court determined that § 12-218 was a tax exemption statute that should be construed against the taxpayer. The trial court also determined that the proper meaning of the § 12-218 “conducts business” requirement was “carrying on business” as defined in related tax provisions and that, pursuant to that standard, the taxpayer had not conducted business in New York. The trial court dismissed the taxpayer’s estoppel argument on the grounds that the commissioner’s response was neither binding on the commissioner nor had it been relied upon by the taxpayer.

On appeal, the taxpayer challenges the trial court’s determination that it did not conduct business in New York during the income years 1983, 1984 and 1985. The taxpayer claims that: (1) the trial court improperly determined that § 12-218 is a tax statute that provides an exemption rather than one that imposes a tax; (2) the trial court improperly interpreted the “conducts business” requirement in § 12-218 in disregard of the commissioner’s pretrial discovery statement adopting a standard that would give legal effect to the taxpayer’s incorporation in New York; (3) the trial court, under any reasonable construction of the “conducts business” requirement of § 12-218, misapplied that requirement in light of the taxpayer’s stipulated New York activities; and (4) if this court sustains its appeal, it has established its entitlement to a refund in the amount requested. Our review of these claims is plenary; see Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992); and we will reverse the trial court if its conclusions are legally or logically incorrect or find no support in the facts that appear in the record. Id.; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Because we agree with the taxpayer, first, that the apportionment provision is an imposition statute, and, second, that the taxpayer satisfies even the commissioner’s standard for “conducts business,” the appeal must be sustained.

I

As a preliminary matter, the taxpayer asks us to review the trial court’s determination that § 12-218 is properly considered a tax exemption statute, and not a tax imposition statute. If a statute that imposes a tax is ambiguous either on its face or in its application, a taxpayer is entitled to a construction in its favor; conversely, a statute providing for a tax exemption must be construed in favor of the state. Morton Buildings, Inc. v. Bannon, supra, 54; The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A. 2d 352 (1971). We agree with the taxpayer that § 12-218 involves the imposition of a tax, and, therefore, that any ambiguity must be resolved in its favor and against the commissioner.

In Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987), which addressed the construction of the apportionment formulae provisions of § 12-218, we resolved ambiguities in the statute in favor of the taxpayer. See also The B. F. Goodrich Co. v. Dubno, supra. Although our decision did not turn on an explicit determination that § 12-218 was an imposition statute, we now hold that this is the proper characterization and rule of construction to apply in cases involving disputes over any provision of § 12-218.

The apportionment statute, although itself not a taxing statute, provides the criteria and formulae for determining net income subject to the state’s corporation tax. Section 12-214, which imposes the corporation tax, provides that the tax is “to be measured by the entire net income . . . from business transacted within the state during the income year.” (Emphasis added.) Significantly, § 12-214 does not provide any guidance to determine the measure of “business transacted within the state.” Such guidance is found, however, in § 12-218. That section states that a taxpayer is to apply the formula “provided in this section” to calculate net income taxable within this state. Because § 12-218 is an integral component of this state’s tax imposition scheme; see also Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 594, 522 A.2d 771 (1987); it cannot properly be characterized as a statute providing a taxpayer exemption.

The commissioner resists this characterization on the ground that apportionment of net income under § 12-218 operates to exclude from taxation a portion of corporate income otherwise subject to § 12-214. Emphasizing that qualification for apportionment is a separate inquiry from application of the various apportioning formulae, the commissioner argues that cases such as Schlumberger Technology Corporation v. Dubno, supra, do not control the resolution of this appeal because, in those cases, neither the multistate nature of the corporation nor the resulting qualification to apportion income was at issue. Conceding that the application of apportionment formulae is an imposition of taxing authority; id., 423; the commissioner asserts nonetheless that the taxpayer’s prerequisite showing that it qualifies for the right to apportion its net income requires the conclusion that § 12-218 operates as an exemption provision for such purposes. In effect, the commissioner asks us to bifurcate the characterization of the apportionment statute. An analysis of whether a corporation qualifies to apportion income would proceed under § 12-218 as a tax exemption statute; an analysis of questions regarding the application of apportionment formulae would proceed as if the statute imposed a tax.

We decline to adopt the commissioner’s bifurcated analysis for two reasons. As a statutory matter, the commissioner’s argument cannot be reconciled with the language of § 12:214, which limits the reach of the corporation tax to that income from business “transacted within the state.” This statutory limitation mirrors the second difficulty with the commissioner’s position, which is that it ignores established federal constitutional constraints on state taxation of interstate corporations.

Well established federal law limits the taxing power of a state in accordance with the provisions of the commerce and due process clauses of the federal constitution. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977) (commerce clause); Mobil Oil Corporation v. Commissioner of Taxes of Vermont, 445 U.S. 425, 436-37, 100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980) (due process clause). Without apportionment, the state’s corporation tax would be constitutionally suspect. Cf. Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S. Ct. 45, 65 L. Ed. 165 (1920). Because the state does not have the power to tax that portion of income attributable to activity outside its borders, the apportionment provisions necessarily operate to determine the extent of the state’s power to impose a tax. Accordingly, the state cannot assert a right to impose a tax on a corporation’s entire net income, regardless of its origin, and then characterize as an exemption the corporation’s claim that the state lacked the authority to tax in the first instance.

We conclude, therefore, that in cases involving the right to apportion income under § 12-218, as in other cases involving the imposition of a tax, the applicable principles of construction favor the taxpayer rather than the commissioner. Morton Buildings, Inc. v. Bannon, supra. In case of ambiguity in the governing statute, it must be construed in favor of the taxpayer.

II

Viewing § 12-218 as a statute that imposes a tax, we now turn to the substantive issue of the application of its apportionment requirement to the taxpayer in this case. We must decide how to construe the provision in § 12-218 that “[f]or purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business,” and then apply the statute to the stipulated facts concerning the taxpayer’s commercial conduct in New York.

The phrase “conducts business” is not defined either by statute or by a properly promulgated tax regulation. The commissioner proposes that we construe “conducts business” to be the equivalent of “carrying on business,” as that phrase is used in other provisions of the corporation tax statutes and regulations. The taxpayer counters, however, that the commissioner has elsewhere embraced a broader rule encompassing not only “carrying on business,” but also “the right to carry on business.” The taxpayer relies, for this contention, on the commissioner’s answer to a pretrial interrogatory that explicitly stated this broader test for the measure of “conducts business.” The commissioner responds that the taxpayer has misconstrued its reply to the interrogatory, and continues to advance “carrying on business” as the proper test for “conducts business.”

The taxpayer has assigned as a separate claim of error the trial court’s alleged failure to give appropriate weight to the commissioner’s reply to its interrogatory. We need not address that contention, however, because we conclude that the taxpayer’s right to apportionment can be sustained even if we apply the commissioner’s construction of “conducts business.” Furthermore, an agency’s construction of the statutes entrusted to it for enforcement is generally persuasive, even if it is not dispositive. See Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128-30, 527 A.2d 672 (1987); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, supra, 599.

The commissioner’s test equating “conducts business” with “carrying on business” refers us to the definition of “carrying on business” that appears in related corporate tax statutes and regulations. General Statutes (Rev. to 1985) § 12-213 defines “carrying on or doing business” as “mean[ing] and includ[ing] each and every act, power or privilege exercised or enjoyed in this state, as an incident to, or by virtue of, the powers and privileges acquired by the nature of any [corporate] organization.” This statutory definition is effectively narrowed, according to the commissioner, by the definition of “carrying on business” contained in § 12-214-1 (a) of the Regulations of Connecticut State Agencies. The regulation states that “[a] company is ‘carrying on business in this state’ if, within this state, it engages in one or more of the following activities, including but not limited to: [e.g.] ... (2) maintaining an office ... (3) selling tangible personal property (as opposed to soliciting orders therefor) ... (7) having an employee, wherever based . . . coordinate the delivery of merchandise.” (Emphasis added.)

The taxpayer maintains that its meetings in New York meet the statutory definition of “carrying on business.” During the period of years in issue in this case, the taxpayer had a regular practice of using New York, the state in which it was incorporated, for the negotiation and placement of orders from foreign vendors. These activities, the taxpayer insists, represent the essence of its business as an agent dealing in tangible goods and therefore manifest “each and every act, power or privilege exercised ... as an incident to, or by virtue of” its incorporation in New York.

The commissioner, emphasizing his narrower regulation, maintains that the taxpayer was not “carrying on business” in New York because the taxpayer had no property or place of business, no payroll, and no sales in that state, and furthermore, that the taxpayer did not conduct there any of the activities listed in § 12-214-1 (a). Even if we accept the commissioner’s incorporation by reference of the terms of § 12-214-1 (a), we are not persuaded that the regulation supports his argument. Although the activities representative of the taxpayer’s business are not explicitly recognized in the regulation, § 12-214-1 (a) unequivocally provides that the list “includ[es], but [is] not limited to” the activities identified therein. The taxpayer claims that it negotiated for and made purchases of candies and confectioneries from foreign vendors. These meetings and purchases are virtually identical to the conduct of its business in Connecticut, and lie at the heart of its corporate purpose. Furthermore, this type of purchasing activity is not explicitly excluded from “carrying on business,” as, for instance, is the mere solicitation of orders for tangible personal property.

Viewing the statute at issue as a statute imposing a tax and therefore construing any ambiguity in favor of the taxpayer, we agree with the taxpayer that it was “conducting business” because it was “carrying on business” under either § 12-213 or § 12-214-1 (a). In Northeastern Pharmaceutical & Chemical Co. v. Heffernan, 179 Conn. 363, 367-70, 426 A.2d 769 (1979), we held that a corporation was required to apportion losses out of state because another state could have imposed a franchise tax on the corporation, and the corporation’s “activity” was only accrued losses on the sale of machinery and equipment as it was winding up its operation in that state. It is as appropriate to recognize that the taxpayer here may apportion its income out of state, although this may entail a loss of revenue for the state, as it was to require the corporation in Northeastern Pharmaceutical & Chemical Co. v. Heffernan, supra, to apportion its losses out of state, thereby increasing this state’s revenue. The commissioner must permit apportionment of income in the circumstances of this case.

Ill

Anticipating the possibility that the judgment of the trial court might be reversed, and the taxpayer’s appeal sustained, the parties have addressed the framing of a proper remand. Although the taxpayer urges us to direct the entry of a judgment for a refund in the amount to which it claims to be entitled, we agree with the commissioner that such an order would be inappropriate. The record reflects that there has been no administrative determination of the validity or accuracy of the amount of the taxpayer’s claimed refund. The parties stipulated to many of the relevant facts, but they did not stipulate to the amount of any refund. Further, the commissioner in his pleadings in the trial court denied the taxpayer’s allegation that an uncontested refund amount was due. The plenary review that the statutes authorize for tax appeals; Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 144-45, 527 A.2d 679 (1987); presupposes an underlying administrative determination of fact. A remand to the commissioner is the appropriate course in the absence of such an administrative determination.

The judgment is reversed and the case is remanded to the trial court with direction to remand the case to the commissioner for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1985) § 12-218 provides in relevant part: “apportionment of net income. Any taxpayer which is taxable both within and without this state shall apportion its net income as provided in this section. For purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business and is subject to a net income tax, a franchise tax for the privilege of doing business, or a corporate stock tax, or if such state has jurisdiction to subject such taxpayer to such a tax, regardless of whether such state does, in fact, impose such a tax.”
      Section 12-218 also provides a variety of formulae to determine the apportionment percentage for purposes of calculating a taxpayer’s net income subject to Connecticut’s corporation tax. Only the taxpayer’s qualification to apportion its income, and not the application of any of § 12-218’s formulae, is at issue in this appeal. Furthermore, the parties agree that, regarding the taxpayer’s qualification for apportionment, the issue in this appeal involves only the application of the “conducts business” portion of § 12-218. The parties do not question New York’s authority to tax the taxpayer.

       General Statutes (Rev. to 1985) § 12-214 provides in relevant part: “imposition of tax. Every . . . company carrying on, or having the right to carry on, business in this state . . . shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity or as an unincorporated association taxable as a corporation for federal income tax purposes or maintaining an office within the state, such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state during the income year and to be assessed for each income year at the rate of eleven and one-half per cent.”

       General Statutes (Rev. to 1985) § 12-237 provides in relevant part: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain . . . .”

       The basis for the taxpayer’s estoppel claim was the commissioner’s response to a 1986 letter from the taxpayer that requested advice about the operation of the apportionment rules. In that response, the commissioner indicated that “[i]f the sales are destined outside Connecticut,” a New York corporation with offices in Connecticut might qualify for an apportionment percentage of greater than zero, thus reducing the amount of net income subject to this state’s corporation tax. In light of this response, the taxpayer filed the amended returns at issue here. The taxpayer has not pursued this estoppel claim on appeal.

       General Statutes § 12-214 is entitled “Imposition of tax.” See footnote 2; see generally W. O’Neill, “Connecticut Taxes Affecting Business Entities,” 54 Conn. B.J. 496, 499-512 (1980).

       The constitution of the United States, article one, § 8, provides in relevant part: “The Congress shall have Power ... To regulate Commerce . . . among the Several States . . . .” The commerce clause prohibits state taxation that discriminates against interstate commerce. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977).
      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.” The due process clause prohibits imposition of state taxes unless there is a minimal connection between the activities being taxed and the taxing state. See Mobil Oil Corporation v. Commissioner of Taxes of Vermont, 445 U.S. 425, 436-37, 100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980).

       Chapter 208, entitled “Corporation Business Tax,” of the General Statutes, § 12-213 et seq., and the regulations promulgated pursuant thereto; see General Statutes § 12-2; provide for the corporation tax.

       The discussion in the trial court regarding the commissioner’s actual rule in use took the following form. In response to an interrogatory in which the taxpayer asked for the department of revenue services’ rule for interpreting “conducts business,” the commissioner stated that “if a company is ‘carrying on or [has] the right to carry on business’ as those words are used in Conn. Gen. Stat. § 12-214-1 of the Regulations of Connecticut State Agencies, in a state other than Connecticut, then that company ‘conducts business’ within the meaning of Conn. Gen. Stat. § 12-218.” Following the taxpayer’s argument to the trial court that, because it has a “right to carry on business” in another state by virtue of its incorporation in New York, it satisfies this interpretation of § 12-218, the commissioner argued that “[w]hile the Commissioner’s interrogatory response might have been clearer, it is easy enough to see that his use of the words ‘carrying on or [has] the right to carry on business’ is drawn from the language of Conn. Gen. Stat. § 12-214 and the title of § 12-214-1 of the Regulations of Connecticut State Agencies. In fact, the ‘conducts business’ requirement of § 12-218 is coextensive with the ‘carrying on’ portion of § 12-214 and subsection (a) only of the Regulation, that is the ‘carrying on business in this state’ part of § 12-214-1.” In its memorandum of decision, the trial court determined that “[t]he [commissioner] further maintains that the ‘conducts business’ requirement of section 12-218 is coextensive with the ‘carrying on’ business portion of Conn. Dept. Reg. section 12-214-1 (a) only, not section 12-214-1 (b) as the [taxpayer] argues. The court agrees with the [commissioner]. Section 12-214-[1] (b) is inapplicable to this case.” The parties have continued this debate in their briefs and oral arguments on appeal.

       General Statutes (Rev. to 1985) § 12-213 provides in relevant part: “definitions. . . . ‘[C]arrying on or doing business’ means and includes each and every act, power or privilege exercised or enjoyed in this state, as an incident to, or by virtue of, the powers and privileges acquired by the nature of any organization whether the form of existence is corporate, associate, joint stock company or fiduciary . . . .”

       Section 12-214-1 (a) of the Regulations of Connecticut State Agencies provides: “carrying on, or having the right to carry on, business
      “(a) A company is ‘carrying on business in this state’ if, within this state, it engages in one or more of the following activities, including but not limited to:
      “(1) owning or leasing (as lessee) real property;
      “(2) maintaining an office, or compensating its employee for the use of his home if such employee works from such home; if its property, including product samples, brochures and advertising materials, and instructions on product usage, is stored in such home; and if the address or telephone number of such home is listed in its advertisements and public announcements;
      “(3) selling tangible personal property (as opposed to soliciting orders therefor);
      “(4) performing or soliciting orders for services;
      “(5) selling or soliciting orders for real property;
      “(6) maintaining a stock of inventory in a public warehouse;
      “(7) having an employee, wherever based: engage in managerial or research activities; make collections on regular or delinquent accounts; offer technical assistance and training to its customer or user of its product after the sale; repair or replace faulty or damaged goods; install or assemble its product; visit its customer or user of its product to determine customer or user satisfaction; pick up returned merchandise from its customer or user of its product; rectify or assist in rectifying any product, credit, shipping or similar complaint arising from the purchase or use of its product; verify the destruction of damaged merchandise; coordinate the delivery of merchandise, whether or not special promotions are involved; distribute replacement parts; inspect the installation of its product by its customer or user of its product; or conduct credit investigations or arrange for credit and financing for its customer or user of its product;
      “(8) delivering merchandise inventory on consignment to its distributors or dealers;
      “(9) owning or leasing (as lessee) personal property which is not related to solicitation of orders; and
      “(10) participating in the approval of servicing distributors and dealers where its customer or user of its product can have such product serviced or repaired.”

       The commissioner’s emphasis on the taxpayer’s lack of property, payroll, and sales in New York is explicitly relevant to the formulae contained in General Statutes § 12-218 that determine the taxpayer’s apportionment percentage, which arguably may be zero. The determination of the apportionment percentage is not, however, an issue before this court.


author: Per Curiam.

text:
    Harry Hyatt v. City of Milford
    (14430)
    Callahan, Borden, Berdon, Norcott and Katz, Js.
    Argued December 10, 1992
    decision released January 26, 1993

      Rickard G. Kascak, Jr., with whom, on the brief, was Serge G. Mikaly, for the appellant (plaintiff).

      Marilyn J. Lipton, city attorney, for the appellee (defendant).
   Per Curiam.

The question posed by this certified appeal is whether the Appellate Court properly affirmed the judgment of the trial court dismissing the plaintiff Harry Hyatt’s action, brought pursuant to General Statutes § 31-300, seeking the recovery of a sum allegedly due the plaintiff from a compensation award previously rendered against the city of Milford. The trial court had dismissed the plaintiffs action for his failure to exhaust his administrative remedies.

The Appellate Court determined that the issue presented by the plaintiffs action was not simply the collection of a liquidated sum, as claimed by the plaintiff, but rather “the proper calculation of § 7-433c benefits and whether or how pension payments may reduce such benefits under § 7-433b.” Hyatt v. Milford, 26 Conn. App. 194, 199, 600 A.2d 5 (1991), cert. granted, 221 Conn. 905, 600 A.2d 1359 (1992). The Appellate Court concluded that the “administration and interpretation of § 7-433c benefits is a primary function of the workers’ compensation commissioner and the compensation review division” and that the plaintiff’s claim “should proceed through the workers’ compensation system.” Id., 199, 200. The Appellate Court therefore affirmed the trial court’s judgment. Id., 200.

After having carefully examined the record on appeal and having given due consideration to the briefs and arguments of the parties, we have concluded that certification was improvidently granted and that the plaintiff’s appeal should be dismissed. The issues raised by the plaintiff have been fully considered and correctly decided by the Appellate Court’s opinion and it would serve no useful purpose for this court to repeat the discussion contained in that opinion. See State v. Santiago, 218 Conn. 483, 590 A.2d 434 (1991); State v. Soltes, 215 Conn. 614, 577 A.2d 717 (1990).

The appeal is dismissed.

       “[General Statutes] Sec. 31-300. award as judgment, interest, attorney’s FEE. PROCEDURE ON DISCONTINUANCE OR REDUCTION. As SOOn as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his award. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. No employer or insurer shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance or reduction in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance or reduction in writing. The commissioner shall render his decision within fourteen days of receipt of such notice. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any wrongful payments received from the day the commissioner receives the notice of discontinuance or reduction until the day of approval of such discontinuance or reduction. In any case where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments.”

       The plaintiff was a uniformed fire fighter for the city of Milford at the time he incurred his disability. He subsequently retired.

       “[General Statutes] Sec. 7-433c. benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       “[General Statutes] Sec. 7-433b. survivors’ benefits for firemen and policemen, maximum cumulative payment, (a) Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police benefit fund or other retirement system, the survivors of any uniformed or regular member of a paid fire department or any regular member of a paid police department whose death has been suffered in the line of duty shall be eligible to receive such survivor benefits as are provided for in the workers’ compensation act, and, in addition, they shall receive such survivor benefits as may be provided for in the retirement system in which such department member was a participant at the time of his death; provided such pension benefits shall be adjusted so that the total weekly benefits received by such survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such deceased at the time of his death. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such survivors, provided total weekly benefits paid shall not exceed said one hundred per cent of the weekly compensation.
      “(b) Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”