author: PALMER, J.

text:
    SAMUEL COHEN ET AL. v. CITY OF HARTFORD
    (SC 15754)
    Callahan, C. J., and Borden, Norcott, Palmer and McDonald, Js.

      Argued October 29, 1997
    officially released March 31, 1998

      Michael A. Zizka, for the appellants (plaintiffs).

      Delroy A. Shirley, senior assistant corporation counsel, for the appellee (defendant).
   Opinion

PALMER, J.

In 1990, the defendant, the city of Hartford (city), adopted a regulation pursuant to which a downtown street, Pratt Street, is closed to vehicular traffic from 11:30 a.m. to 2:30 p.m., Monday through Friday, from approximately May through October, so that the street may be used as a pedestrian mall during those times. The plaintiffs, Samuel Cohen and Daniel Cohen, are the owner and manager, respectively, of two office buildings located on Pratt Street. They claim that the regulation is invalid because it is contrary to a requirement in the deed conveying Pratt Street to the city that the land shall be used solely for purposes of a road. The plaintiffs also claim that the regulation is an unlawful exercise of the city’s police power because it is not reasonably related to any legitimate government interest and, further, that even if the regulation is valid, its enforcement constitutes a taking without just compensation under the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution. We affirm the judgment of the trial court rejecting the plaintiffs’ claims.

The following facts and procedural history are relevant to our resolution of this matter. In 1814, John and James Pratt conveyed the land comprising Pratt Street to the city by deed specifying that the property was to be used “for the purpose of a road and for no other purpose.” At that time, the roads in Hartford were used primarily for pedestrian, horse, and horse and carriage traffic. Today, Pratt Street, which is one block long, is a one-way street in an easterly direction between Trumbull and Main Streets. It is paved, and has both curbs and sidewalks.

In 1989, the city received a grant of $2.45 million from the state of Connecticut to help defray the cost of certain improvements to Pratt Street. The purpose of these improvements was to restore Pratt Street to its nineteenth century character and, further, to revitalize the street as an important pedestrian connector between Main and Trumbull Streets. Consistent with this redevelopment plan, and for the purpose of establishing a pedestrian mall, increasing pedestrian safety and maximizing Pratt Street’s attractiveness to retail business, the city, on October 19,1990, adopted a regulation (regulation) pursuant to which the street is closed to vehicular traffic from 11:30 a.m. to 2:30 p.m., Monday through Friday, from approximately May through October.

The plaintiff Samuel Cohen is the owner of two multistory office buildings located at 57 Pratt Street and 75 Pratt Street (properties), and the plaintiff Daniel Cohen manages the properties. The plaintiffs lease space in the properties for commercial, retail and office use. Vehicular access to the properties is available only via Pratt Street, over which the plaintiffs have a private easement of access.

The plaintiffs, having unsuccessfully appealed the closing of Pratt Street to the Hartford city council pursuant to General Statutes § 14-313, commenced this action seeking damages and a temporary and permanent injunction prohibiting the city from closing the street to vehicular traffic. The plaintiffs claimed that: (1) the city lacked the statutory authority to restrict the use of Pratt Street to pedestrian travel; and (2) the closing of Pratt Street violated the terms of the deed from John and James Pratt to the city specifying that the deeded property shall be used solely for purposes of a road. At the evidentiary hearing on the plaintiffs’ application for a temporary injunction, the plaintiffs elicited testimony that, as a result of the street closings: (1) several of the plaintiffs’ tenants had lost clients; (2) at least one tenant had moved out and another was considering doing so; and (3) one tenant had negotiated a lower increase in his rental rate than the plaintiffs would have agreed to had the regulation not been adopted. In addition, Samuel Cohen testified that the occupancy rates at 57 Pratt Street and 75 Pratt Street had declined from 90 percent to 50 percent, and from nearly 100 percent to 75 percent, respectively, due to the street closings. The plaintiffs also indicated that they had been compelled to reduce their rental rates due to the regulation. Although the trial court, Freed, J., found that the plaintiffs had “suffered immeasurably from the closing of Pratt Street for the three hour periods,” the court nevertheless denied the plaintiffs’ application for a temporary injunction, concluding that they had failed to establish either that the city lacked the statutory authority to enforce the regulation or that the regulation violated the terms of the deed conveying Pratt Street to the city.

The plaintiffs thereafter filed an amended complaint seeking a permanent injunction prohibiting the city from enforcing the regulation, as well as damages, interest, costs and attorney’s fees. The amended complaint, like the original complaint, alleged that the regulation authorizing the closing of Pratt Street to vehicular traffic is contrary to the express provisions of the deed conveying Pratt Street to the city. The amended complaint also alleged that: (1) the regulation is unlawful because it was not adopted by ordinance; (2) the regulation is unlawful because it promotes a private, rather than a public, purpose; (3) the impairment of the plaintiffs’ private easement of access caused by the temporary closing of Pratt Street to vehicular traffic violates General Statutes § 13a-55; and (4) the impairment of the plaintiffs’ access easement constitutes a taking without just compensation in violation of the fifth amendment to the United States constitution and article first, § 11, of the state constitution. At trial, the plaintiffs, along with various current and former tenants, testified as to the adverse impact of the regulation on the properties’ occupancy rates and value. Specifically, Samuel Cohen testified that tenant turnover rates had increased as a result of the street closings, and that occupancy rates had remained the same since his testimony regarding those rates at the temporary injunction hearing. Although Samuel Cohen testified that the “vacancies] started when Pratt Street was closed,” he was unable to specify the extent to which the vacancies were attributable to the regulation, rather than to a general downturn in the city’s economy. Samuel Cohen also stated that, in his opinion, which he based on his general knowledge of the city’s real estate market, the street closings had resulted in a reduction in the total value of the properties from $4.5 million to $3 million. The plaintiffs, however, adduced no other expert testimony regarding the effect of the street closings on the properties’ value.

In addition, several tenants testified that, although they did not intend to relocate, they would not have leased space in the properties had they known at that time that the regulation would be adopted. Another witness testified that, when approached by Samuel Cohen with respect to renting office space in one of the properties, he had declined because of the street closings. Yet another witness, a former tenant, stated that the street closings represented one factor, although not the principal one, in his decision not to renew his lease at one of the properties. Finally, Jonathan Cohen, Samuel Cohen’s son and a comanager of the properties with Daniel Cohen, testified that, as a consequence of the street closings, he had reduced the monthly rent for two new tenants from $175 to $160, in one instance, and from $175 to $150 in the other.

At the conclusion of the trial, the court, Wagner, J., rejected the plaintiffs’ claims and rendered judgment for the city, concluding that the “[plaintiffs have not sustained their burden of proving that they have suffered damages as a result of the regulation restricting vehicular traffic [for] three hours daily. The estimate of reduced property value and the loss of tenants claimed by the plaintiffs was not proven to be caused by the three hour closing rather than the general decline [in the value] ... of downtown properties in [the city] because of prevailing economic conditions and the particular needs of certain tenants.”

Thereafter, the plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes §51-199 (c). On appeal, the plaintiffs renew their claim that the enforcement of the regulation contravenes the express language of the deed conveying Pratt Street to the city. The plaintiffs also claim that the regulation is an unlawful exercise of the city’s police power because it serves no legitimate public purpose and, further, because it constitutes a taking under the state and federal constitutions, thereby entitling the plaintiffs to just compensation. We disagree and, consequently, affirm the judgment of the trial court.

I

The plaintiffs first contend that enforcement of the regulation is unlawful because it violates the condition in the deed conveying Pratt Street to the city, which mandates that the land be used “for the propose of a road and for no other purpose.” Specifically, they claim that use “for the propose of a road” necessarily contemplates unrestricted vehicular access. We disagree.

“The principles governing the construction of instruments of conveyance are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780, 687 A.2d 1270 (1997). Moreover, “the words [in the deed] are to be given their ordinary popular meaning, unless their context, or the circumstances, show that a special meaning was intended.” Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 512, 280 A.2d 877 (1971). “Finally, our review of the trial court’s construction of the instrument is plenary.” Lakeview Associates v. Woodlake Master Condominium Assn., Inc., supra, 781.

Application of these principles to the facts of this case supports the trial court’s conclusion that the regulation does not contravene the deed’s requirement that Pratt Street shall be used solely “for the purpose of a road.” First, the plaintiffs point to no other language in the deed to suggest that the original parties to the conveyance intended that the road shall remain open to vehicular traffic at all times and under all circumstances. Furthermore, the plaintiffs presented no evidence at trial regarding the circumstances surrounding the original conveyance of Pratt Street that supports their claim regarding the parties’ intent. Accordingly, the plaintiffs may prevail only if they can establish that, in common parlance, the word “road” connotes a thoroughfare that necessarily is open to vehicular traffic at all times. In ascertaining the common usage of the word “road,” we look to its dictionary definition. See, e.g., Lakeview Associates v. Woodlake Master Condominium Assn., Inc., supra, 239 Conn. 781.

A “road” is defined generally as “an open way or public passage for vehicles, persons, and animals: a track for travel or transportation to and fro serving as a means of communication between two places usually having distinguishing names. . . .” Webster’s Third New International Dictionary. In common parlance, therefore, a “road” is a thoroughfare intended to facilitate travel, including vehicular travel. Nothing in the relevant dictionary definition of the word “road” suggests, however, that the term contemplates unrestricted vehicular use. Contrary to the plaintiffs’ claim, therefore, the word “road,” in ordinary parlance, does not connote a thoroughfare that necessarily remains open to all vehicular traffic at all times. Rather, the common meaning of the word “road” supports the city’s contention that the deed requires it merely to maintain Pratt Street as a public way and not, as the plaintiffs claim, that the city never may close the street to vehicular traffic.

Furthermore, the plaintiffs have not identified any case law, nor have we discovered any, to substantiate the interpretation that they espouse. The sole authority upon which the plaintiffs do rely, Lake Garda Improvement Assn. v. Battistoni, supra, 160 Conn. 503, does not support their claim. In Lake Garda Improvement Assn., we distinguished between a “road” and a “roadway” for purposes of determining the boundaries of a parcel of property that had been conveyed by deed and, in so doing, we noted that “[a] road . . . usually refers to that portion of a roadway over which vehicular traffic passes.” Id., 512. Contrary to the plaintiffs’ claim, however, our observation in Lake Garda Improvement Assn. regarding the physical distinction between a “road” and a “roadway” bears no relation to the altogether different question of whether the word “road” connotes a thoroughfare to which vehicular access never may be restricted.

The plaintiffs have failed to establish that the language of the deed reflects an intent to preclude any limitation on vehicular access to Pratt Street. Therefore, we conclude that the trial court properly determined that the regulation does not violate the condition contained in the deed that Pratt Street shall be used “for the purpose of a road and for no other purpose.”

II

The plaintiffs also contend that the enforcement of the regulation by the city constitutes an unlawful exercise of the city’s police power. In support of this claim, the plaintiffs assert, first, that the regulation serves no legitimate public purpose. They argue that, consequently, they are entitled to a permanent injunction prohibiting the city’s enforcement of the regulation. Alternatively, they claim that the regulation interferes substantially and unreasonably with their private easement of access, and that it has caused a significant decline in the properties’ value. They contend that, as a consequence, the street closings constitute a taking of their property for which they are entitled to fair compensation under the federal and state constitutions. We disagree.

A

We turn first to the plaintiffs’ claim that the regulation fosters no legitimate state interest and, therefore, constitutes an unlawful exercise of the city’s police power. Our resolution of this claim is governed by well established principles. “All private property is held subject to the police power of the state . . . and its use may be regulated in the interest of the public health, safety or welfare.” St. John’s Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 723, 184 A.2d 42 (1962). “ ‘The concept of the public welfare is broad and inclusive .... The values it represents are . . . physical [and] aesthetic as well as monetary.’ ” Figarsky v. Historic District Commission, 171 Conn. 198, 207-208, 368 A.2d 163 (1976). Thus, the police power properly may be used to promote “the economic welfare of the community.” Gionfriddo v. Windsor, 137 Conn. 701, 706, 81 A.2d 266 (1951). Furthermore, “[t]hat the [s]tate may under the police power regulate travel upon the public highways cannot be doubted.” Silver v. Silver, 108 Conn. 371, 377, 143 A. 240, aff'd, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221 (1928).

As the trial court concluded, the city, in adopting the regulation as part of its redevelopment efforts, sought to preserve the “historical integrity and ambience of Pratt Street and to maximize its viability as a commercial center by insuring pedestrian safety and improving the business of establishments located there.” As part of its planning function, the city had conducted extensive studies during the 1980s analyzing its downtown business district to assist it in devising plans to stimulate and manage growth. Recognizing that “[a] healthy downtown is vital for a healthy City”; Hartford Planning Dept., Downtown Development Plan (1984) p. 1; the city established the goals of “increas [ing] the tax base ... [in a manner consistent with the] long-term economic health of the City”; id.; and “easfing] vehicular access and reducing the] traffic congestion . . . which threatens the health and safety of Hartford residents . . . .” Id., p. 2. Pratt Street, identified as a small, active shopping street and an important east-west pedestrian artery connecting the primary retail centers on Main Street and at the Civic Center, was viewed as an integral part of this plan. See id., pp. 36, 56. Studies of downtown pedestrian traffic revealed that peak pedestrian use of Pratt Street, contributing to significant congestion on sidewalks, occurred from 11:30 a.m. to 1:30 p.m., and from 4 p.m. to 4:30 p.m. Id., pp. 19-21. The city concluded that it could encourage pedestrian use of Pratt Street both by restoring the street to its historic state, for which the city procured the $2.45 million state grant, and by prohibiting the use of vehicles during the midday hours. See Halcyon Ltd., “Retail Concept and Design Parameters for Pratt Street — People Density/Car Density,” in Pratt Street Project (1987). The vehicular prohibitions, moreover, would enhance pedestrian safety. In light of these considerations, it is manifest that the regulation, adopted in response to comprehensive studies and intended both to improve the city’s economic well-being and to ensure the safety of persons patronizing downtown business establishments, serves purposes that are central to effective municipal governance. Contrary to the plaintiffs’ claim, therefore, the regulation represents a legitimate use of the city’s police power to advance economic, aesthetic and safety-related goals.

B

We next must determine whether the street closings have impaired the plaintiffs’ access easement to such a degree that, as the plaintiffs contend, they are constitutionally entitled to compensation from the city. We also are not persuaded by this claim.

It is well settled that, where the state, in the exercise of its police power, “authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation.” Yee v. Escondido, 503 U.S. 519, 522, 112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992). Where, however, as in this case, the government entity “merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole.” (Emphasis added.) Id., 522-23. Thus, “a regulatory taking — also known as inverse condemnation — occurs when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding and, therefore, require the government to pay compensation to the property owner.” Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 93 n.3 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153 (1993); see First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 315, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987) (landowner entitled to bring action in inverse condemnation as result of self-executing character of takings clause).

While “ ‘[a]ll property is held subject to the right of government to regulate its use in the exercise of the police power’ Figarsky v. Historic District Commission, 171 Conn. 198, 206, 368 A.2d 163 (1976); “if regulation goes too far, it will be recognized as a taking.” (Internal quotation marks omitted.) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). In analyzing regulatory action to determine whether it “goes too far,” we are mindful that the difference between a regulation that results in a compensable taking and one that does not generally is a matter of degree. Luf v. Southbury, 188 Conn. 336, 349, 449 A.2d 1001 (1982). Although at one extreme a regulation may deprive an owner of the beneficial use of property so as to constitute a practical confiscation, thereby requiring compensation; see Lucas v. South Carolina Coastal Council, supra, 1015; Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 256, 662 A.2d 1179 (1995); if a regulation results in something less than a practical confiscation, “the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public har m to be prevented and to the alternatives available to the landowner. . . . The financial effect on a particular owner must be balanced against the health, safety and welfare of the community.” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., supra, 256; see Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 492, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (determination of whether regulatory action constitutes taking necessarily requires weighing of private and public interests).

Thus, when reviewing a takings claim based upon an alleged infringement of an owner’s legal right of access to property, a court must ascertain the degree to which such access is impaired by the regulatory action; see, e.g., Colorado Dept. of Highways v. Davis, 626 P.2d 661, 664 (Colo. 1981); including the extent to which the regulation deprives the owner of a reasonably convenient and suitable means of access. See, e.g., Falls Riverway Realty, Inc. v. Niagara Falls, 732 F.2d 38, 40 (2d Cir. 1984); Johnson v. United States, 479 F.2d 1383, 1391 (Ct. Cl. 1973); Palm Beach County v. Tessler, 538 So. 2d 846, 847 (Fla. 1989); DuPuy v. Waco, 396 S.W.2d 103, 109 (Tex. 1965). Although we consistently have held that “[a] landowner who, as a result of governmental action, suffers a total and permanent loss of his right of access to the public way ... is entitled to recover damages”; Luf v. Southbury, supra, 188 Conn. 342; see Slavitt v. Ives, 163 Conn. 198, 207, 303 A.2d 13 (1972) (destruction of sole right of access to landlocked property constitutes taking); Cone v. Waterford, 158 Conn. 276, 279-80, 259 A.2d 615 (1969) (discontinuance of road providing property owner with only practical means of access amounts to taking); “some impairment of access rights and some diminution in the total value of property do not, without more, justify a conclusion that there has been an unconstitutional taking . . . .” (Citations omitted.) Luf v. Southbury, supra, 354.

Application of these principles to the facts of this case supports the trial court’s conclusion that the street closings do not constitute a taking of the plaintiffs’ property. According to the trial testimony adduced by the plaintiffs, the restrictions placed upon the use of Pratt Street pursuant to the regulation have made access to the properties, at certain times, somewhat more inconvenient for at least some of the consuming public, thereby causing some degree of tenant dissatisfaction. This, the plaintiffs claim, has resulted in higher vacancy rates and lower rental rates, causing a decline in the value of the properties from $4.5 million to $3 million. The plaintiffs’ evidence, however, purported to establish the loss of only two tenants and one potential tenant as a consequence of the street closings. Moreover, the plaintiffs identified only two tenants for whom they claimed rental rates were reduced as a result of the city’s enforcement of the regulation. In light of the paucity of evidence tending to establish a causal relationship between the street closings, on the one hand, and any decline in the value of the properties, on the other, the trial court concluded that the plaintiffs had failed to meet their burden of proving a link between the two. The trial court, moreover, expressly rejected the plaintiffs’ claim that any loss in rental income was the result of the street closings. Because we cannot say that the plaintiffs’ evidence required a contrary determination, we will not disturb the trial court’s fact-bound conclusions. See, e.g., Herbert S. Newman & Partners, P.C. v. CFG Construction Ltd. Partnership, 236 Conn. 750, 762, 674 A.2d 1313 (1996) (trial court’s factual findings binding on this court unless clearly erroneous in light of all evidence).

We note, furthermore, that the limited nature of the impairment to the plaintiffs’ access easement caused by the street closings lends support, to the trial court’s conclusion regarding the plaintiffs’ failure to substantiate their claim of economic loss. The regulation restricts vehicular access for only three hours each weekday, and for only a portion of the year. At all other times, vehicles are free to travel on Pratt Street without restriction, and the properties are fully accessible by foot at all times. Moreover, persons seeking access to the properties when the vehicular restrictions are in force may, by obtaining motor transportation either to the intersection of Pratt and Main Streets or to the intersection of Pratt and Trumbull Streets, shorten their walk to the properties to a distance of less than one city block. Thus, although the street closings may, at times, pose some minor inconvenience to persons seeking access to the properties, the plaintiffs have failed to prove that they have been “unfairly singled out ... to bear a burden that should be borne by the public as a whole.” Yee v. Escondido, supra, 503 U.S. 522-23.

The judgment is affirmed.

In this opinion the other justices concurred.

       The fifth amendment to the United States constitution provides in relevant part: “[N]or shall private property be taken for public use, without just compensation.” The takings clause of the fifth amendment is made applicable to the states through the fourteenth amendment. See, e.g., Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980).
      Article first, § 11, of the state constitution provides: “The property of no person shall be taken for public use, without just compensation therefor.”

       The Hartford municipal code authorizes the city manager to adopt rules and regulations regarding the control of traffic and parking in the city. See Hartford Municipal Code, c. V, § 7. Pursuant to that authority, the city manager adopted the regulation regarding the closing of Pratt Street to vehicular traffic. The regulation was amended on May 1, 1992, to correct a typographical error in the regulation as originally promulgated.

       By agreement between Aetna Property Services, Inc. (Aetna), and the city, Aetna serves as the city’s agent for the purpose of opening and closing the street to vehicular traffic in accordance with the terms of the regulation.

       The regulation, as amended, provides, without limitation, that Pratt Street “shall be closed daily from 11:30 a.m. to 2:30 p.m. for use as a pedestrian mall.” We were apprised by the plaintiffs’ counsel at oral argument, however, and it is not disputed, that the city closes Pratt Street to vehicular traffic only on weekdays. In addition, it also is undisputed that the regulation is not enforced from approximately November through April. Because the parties have treated this case as involving only these limited street closings, we do so, as well.

       Samuel Cohen acquired his interest in the 57 Pratt Street and 75 Pratt Street properties in 1969 and 1972, respectively.

       Samuel Cohen testified that 57 Pratt Street and 75 Pratt Street contain 127 and 50 offices, respectively.

       By contrast, the other buildings located on Pratt Street have rear or side entrances to which vehicular access may be gained from Church Street to the north, Asylum Street to the south, and Trumbull Street to the west.

       It is not disputed that the plaintiffs possess an access easement by reason of their ownership of the properties. Connecticut law recognizes that the existence of a public highway “creates two easements: the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits the landowners who abut the highway to have access to the highway and to the connecting system of public roads.” Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982).

       General Statutes § 14-313 provides: “Appeal. Any person aggrieved by any order or regulation made by any traffic authority under the provisions of this chapter, relating to the establishment of through streets, the making of safety zones, the establishment of parking restrictions or the location of loading and unloading zones, or by the performance of any act pursuant to any provision of this chapter, may take an appeal therefrom to the court of common council or to the board of aldermen of the city, to the town council or board of selectmen of the town, or to the warden and burgesses of the borough, wherein such traffic authority is located, or to the superior court for the judicial district in which it is located. Such appeal shall be to the next session of such court or board which will allow sufficient time for the service of the notice required herein. A written notice of such appeal, addressed to such traffic authority, shall be deposited with, or forwarded by registered or certified mail to, such traffic authority at least ten days before the return day thereof. Upon such hearing, such court or board shall determine whether the order or regulation appealed from is reasonable, and shall thereupon sustain or revoke such order or regulation.”

       The testimony adduced at the hearing on the plaintiffs’ application for a temporary injunction focused, to a large extent, on difficulties purportedly encountered by the plaintiffs’ tenants, such as attorneys, physicians and hairdressers, whose clientele include persons who either are elderly or have disabilities and for whom, as a consequence, vehicular transportation directly to and from the properties is, at times, necessary. The plaintiffs, however, did not establish the extent to which the properties’ income is derived from such tenants.

       The plaintiffs, however, produced no documentary or other evidence to substantiate their assertions of lost revenue.

       The trial court, however, made no specific finding as to any actual pecuniary loss that the plaintiffs may have suffered as a result of the street, closings.

       Because the plaintiffs adduced uncontradicted evidence that Aetna Property Services, Inc. (Aetna), acting as the city’s agent; see footnote 3; had prohibited parking on Pratt Street at times other than the three hour period from 11:30 a.m. and 2:30 p.m., the trial court entered an order “restraining [the] city from permitting Aetna . . . from prohibiting parking on Pratt [Street] except as authorized by duly adopted regulations.” The court otherwise denied the plaintiffs’ application for temporary injunctive relief.

       General Statutes § 13a-55 provides: “Right-of-way of property owners bounding a discontinued or abandoned highway or a highway any portion of which is discontinued or abandoned. Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which apublic highway maybe now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”

       The parties also agreed to the admissibility of the transcript of the testimony that had been adduced at the hearing on the plaintiffs’ application for a temporary injunction and, in addition, entered into a stipulation of undisputed facts.

       Although Daniel Cohen testified that “in bad times tenants seem to look for less expensive office space and . . . our business seems to flourish,” the plaintiffs produced no documentary or other evidence to substantiate this assertion.

       Although courts in other jurisdictions have defined the word “road” in various manners; see, e.g., Northwestern Telephone Exchange Co. v. Minneapolis, 81 Minn. 140, 154, 86 N.W. 69 (1900) (“ ‘a public way for passage or travel; a strip of ground appropriated for travel, forming a line of communication between different places; a highway, hence any similar passage for travel public or private’ ”); State ex ret. Wabash Railway Co. v. Public Service Commission, 340 Mo. 225, 237, 100 S.W.2d 522 (1936) (“nothing more than a strip of ground set aside, improved and dedicated to the public for use as a passageway”); Boykin v. State Highway Dept., 146 S.C. 483, 489, 144 S.E. 227 (1928) (“ ‘a place where one may ride; an open way or public passage for vehicles, persons and animals; a track for travel, forming a means of communication between one place and another’ ”); we have discovered no case that expressly or impliedly supports the plaintiffs’ interpretation of the term as used in this deed.

       The plaintiffs have not provided an independent analysis of their takings claim under the state constitution. For purposes of this appeal, therefore, we assume, without deciding, that the plaintiffs are entitled to the same level of protection under article first, § 11, of the state constitution as they are under the fifth amendment to the federal constitution.

       The plaintiffs assert that the regulation was not enacted for reasons of pedestrian safety. Contrary to this claim, the record contains substantial evidence indicating that the city’s concern for pedestrian safety was a factor in its decision to adopt the regulation.

       The city introduced the following studies into evidence: Pratt Street Project (1987); Central Downtown Urban Design Plan, Hartford, Connecticut (1986); Hartford Planning Dept., Downtown Development Plan (1984); Urban Land Institute, An Evaluation of Downtown Retail Development Strategies (1983); and Project for Public Spaces, Inc., Downtown Hartford: Managing for Change (1980).

       We note that compensation is required when a property owner suffers a permanent, physical occupation of his or her property, “no matter how minute the intrusion, and no matter how weighty the public purpose behind it . . . .” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992).

       In Luf v. Southbury, supra, 188 Conn. 350-54, we concluded that the plaintiffs, who claimed that the defendant town’s discontinuance of an unimproved highway that abutted their property constituted a taking, had failed to establish a present, nonspeculative diminution in the value of their property by virtue of the town’s action.

       The plaintiffs assert that Judge Wagner was required to adopt, as a factual finding, the observation made by Judge Freed at the conclusion of the temporary injunction hearing that the plaintiffs had “suffered immeasurably” as a result of the street closings. They argue that, had Judge Wagner accepted Judge Freed’s characterization of the harm suffered by the plaintiffs, he could not have concluded properly that the plaintiffs had failed to meet their burden of proof with respect to their takings claim. We disagree with this argument for several reasons. First, in light of the fact that Judge Freed denied the plaintiffs’ application for temporary injunctive relief because they had failed to establish either of their two legal claims, his statement regarding the nature of the harm suffered by the plaintiffs is dicta. Second, at the time of the temporary injunction hearing, the plaintiffs had not yet raised a takings claim; consequently, Judge Freed’s observation regarding the harm caused by the street closings was wholly unrelated to the analysis underlying such a claim. Finally, and most importantly, we emphasize that Judge Wagner, in rejecting the plaintiffs’ takings claim, considered not only the transcript of the testimony adduced at the temporary injunction hearing, but also the testimony of Samuel Cohen, Daniel Cohen and Jonathan Cohen, as well as the testimony of various of the plaintiffs’ current and former tenants. Contrary to the plaintiffs’ contention, therefore, Judge Wagner properly conducted an independent evaluation of the credibility of the witnesses and the weight of the evidence to determine, for himself, whether the plaintiffs had met their burden of proving their takings claim.

      We note that “[t]he financial burden imposed on a landowner by a regulation is measured by the extent to which the regulation interferes with the property owner’s reasonable investment-backed expectations of use of the property. ... A regulation does not constitute a compensable taking if it does not infringe on such reasonable investment-backed expectations.” Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 257. Because the plaintiffs have failed to establish that the street closings have resulted in any economic loss, we are not required even to address the plaintiffs’ reasonable investment-backed expectations.

       The plaintiffs cite to D’Addario v. Commissioner of Transportation, 180 Conn. 355, 429 A.2d 890 (1980), in support of their claim that anything less than unrestricted access to the properties amounts to a compensable taking. We disagree. In D’Addario, we sustained an award of damages to the owner of undeveloped land resulting from the state’s temporary appropriation of a constructive easement of access where the state, during a period of more than two years, restricted the owner’s use of his driveway due to public road construction. We observed that the owner, as a result of being denied unrestricted access to his property, had been unable to develop his property commercially and, consequently, had been deprived of the highest and best use of the property for over two years. Id., 368. The case before us, by contrast, does not involve the restriction of the right to develop land, nor can it reasonably be maintained that the regulation deprives the plaintiffs of the highest and best use of the properties.

       In support of their takings claim, the plaintiffs rely on cases in which the challenged regulatory action caused the landowner to suffer a complete denial of all vehicular access to the subject property for months or even years. See, e.g., Stock v. Cox, 125 Conn. 405, 419, 6 A.2d 346 (1939) (taking occurred where land condemned for highway bisected property, completely cutting off access from portion of property until highway construction completed); DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979) (temporary but complete loss of access to property resulting in destruction of established business constitutes taking). Because the regulation at issue in this case prohibits vehicular access to Pratt Street for only a small portion of each weekday, and not for any extended period of time, these cases are inapposite.
      The plaintiffs also contend that their takings claim is supported by several cases from other jurisdictions in which the permanent closing of a street to vehicular traffic has been deemed to be a taking. See Fargo v. Fahrlander, 199 N.W.2d 30, 34 (N.D. 1972) (abutting property owners entitled to compensation under state constitution for permanent closure of three blocks of street to create pedestrian mall); Wolfe v. Providence, 77 R.I. 192, 206-208, 74 A.2d 843 (1950) (permanent ban of all through vehicular traffic and designation of use of portion of street solely for parking was taking, entitling abutting business to compensation); see also Gengarelly v. Glen Cove Urban Renewal Agency, 69 App. Div. 2d 524, 526-27, 418 N.Y.S.2d 790 (1979) (remanding for determination of whether “suitable access” was denied abutting property owner, giving rise to action in eminent domain, where street closure for pedestrian mall allowed vehicular access to emergency vehicles only); but see Boulder v. Kahn’s, Inc., 190 Colo. 90, 94, 543 P.2d 711 (1975) (four block permanent closure of street for pedestrian mall, restricting access to all but emergency vehicles, and to delivery vehicles except before 10 a.m. and after 4 p.m., not sufficiently unreasonable or substantial to constitute taking). We disagree that these cases compel a conclusion that, in the far different circumstances of this case, the plaintiffs are entitled to compensation. A regulation that permanently bans all vehicular travel over a street gives rise to a far greater impairment of an abutting owner’s easement rights than does a regulation, like the instant one, that results in the closing of a street to vehicular traffic for a few hours each day, Monday through Friday, for a portion of the year.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD AUSTIN
    (SC 15369)
    Callahan, C. J., and Berdon, Norcott, Palmer and McDonald, Js.
    Argued December 5, 1997
    officially released March 31, 1998

      Susan M. Hankins, assistant public defender, with whom, on the brief, was Temmy Ann Pieszak, supervisory assistant public defender, for the appellant (defendant).

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The defendant, Richard Austin, was convicted by a jury of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal from the judgment of the trial court, the defendant challenges the propriety of several of the trial court’s jury instructions, as well as the admission of certain identification evidence. Specifically, the defendant claims that the court improperly instructed the jury concerning: (1) the element of intent; (2) consideration of his mitigating evidence of intoxication; (3) manslaughter in the first degree pursuant to General Statutes § 53a-55 (a) (3) by describing it as “reckless indifference manslaughter”; and (4) the definition of the term “extreme” as used in his affirmative defense of extreme emotional disturbance. The defendant further claims that the trial court improperly denied his motions to suppress identifications of him as the assailant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Gloria Austin, were married in 1989. During the summer of 1991, the couple began having marital problems that resulted in domestic disturbances. The defendant was arrested twice in 1991, for incidents involving violence against his wife but the victim chose not to press charges. She did, however, obtain a restraining order on two separate occasions.

The defendant and the victim separated in October, 1992. The victim and the couple’s three children remained in the family’s apartment at 393 Sherman Avenue in New Haven, and the defendant moved into his mother’s house on Southwest Drive in New Haven. In the spring of 1992, the victim filed for a divorce, which became final on December 30, 1992. At that time, the victim was employed as a nurse’s aid at a New Haven nursing home. On January 16, 1993, the victim, who was scheduled to work at 11 p.m., left her apartment to go to work at approximately 10:30 p.m.

That night, Marie Garrett, who lived next door to the victim, went to her window because she heard a woman shouting for help. Garrett saw a woman running down Sherman Avenue with a man chasing her. The woman tried to get into a car that was stopped at a traffic light but the car pulled away. The woman then ran across the street. Garrett subsequently heard a gunshot and saw the woman fall. Thereafter, the man stood over her body and fired several more shots. He then ran across the street into an alley between two houses. Garrett was unable to identify the man.

Rosco Sheffield and Priscilla Knox also observed the shooting. Sheffield saw a woman running down Sherman Avenue with a man chasing her with a gun in his hand. Sheffield heard the man shout at the woman: “[Y]ou’re dead wrong!” Sheffield saw the woman try to get into a car that was stopped for a light but the car sped off when the man pointed a gun at the windshield. The woman then ran toward Sheffield, with the man still chasing her. Frightened, Sheffield ran up Goffe Street away from the shooter and, as he did, he heard three gunshots. Sheffield came back to Sherman Avenue after running around the block and saw the woman lying on the ground.

Priscilla Knox was standing on the comer of Goffe Street and Sherman Avenue waiting for a friend, when she saw a woman running down Sherman Avenue screaming: “Somebody help me! He’s going to shoot me.” Knox saw the woman, with a man following her, ran to a car that was stopped at a traffic fight and the car pull away. Although the man was not directly facing her, Knox could see his face. When he was approximately five to six feet away from the woman, Knox heard gunshots and saw the woman fall to the ground, after which Knox heard additional gunshots.The victim was taken to the hospital where she died of a gunshot wound to the back of her head. Two .25 caliber shell casings were found at the scene of the shooting.

Thereafter, Sheffield and Knox each identified the defendant as the shooter. At trial, the defendant testified and admitted that he had shot the victim. He claimed, however, that he did not intend to kill her. According to the defendant, although he and the victim were separated and she had filed for divorce, he was unaware that the divorce had become final and he had hoped for a reconciliation.

At trial, the defendant raised the affirmative defense of extreme emotional disturbance pursuant to § 53a-54a (a) and introduced evidence of intoxication in accordance with General Statutes § 53a-7. Because the defendant admitted that he had shot the victim, the central issue in the trial was his intent. The defendant’s testimony concerning the immediate circumstances surrounding his shooting of the victim was as follows. On January 13, three days before the shooting, he found a card and love letter from the victim to another man. Feeling “disappointed” and “distraught,” the defendant decided to quit his job and move to Atlanta. On January 16, the defendant found another card and letter from the victim to the other man. When he telephoned the victim, she refused to speak to him. When he called again, a man answered the telephone and told the defendant not to call there anymore. The defendant testified that he then went to the victim’s house but she was not at home. His daughter told him that the victim was seeing another man and had obtained a restraining order against the defendant. He returned to his mother’s house where he proceeded to drink alcohol and use narcotics.

The defendant was familiar with the victim’s work schedule and decided to confront her that night when she left for work. He carried a .25 caliber handgun in his pocket for protection, which, according to his testimony, was a common practice. He walked from his mother’s house to the victim’s house and waited in the driveway by the rear of her car for the victim to come out. As the victim was standing outside the apartment locking the front door, the defendant asked her why she was having another man in the house with the children present. According to the defendant, the victim replied: “ ‘He’s not in our house. He is upstairs right now in your bed.’ ” The defendant said he “went ballistic” and yelled: “You’re dead wrong!” He then pulled out his gun. The victim screamed and ran away from him. He testified that he chased her, intending to grab her and take her back to the house to confront the other man. He fired two shots at the victim, who fell to the ground. He denied firing any shots after she fell. The defendant then ran from the scene and hid the gun under a discarded tire.

The jury found the defendant guilty of murder. Thereafter, the trial court denied the defendant’s motions for a new trial and judgment of acquittal and rendered judgment in accordance with the jury verdict. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant’s specific claims.

I

We first address the defendant’s challenge to the trial court’s instruction on the element of intent. In its preliminary instructions, the trial court charged the jury that “a person acts intentionally with respect to a result or to conduct [described by a statute defining an offense] when his conscious objective is to cause such result or to engage in such conduct.” The defendant contends that the portion of the definition relating to conduct improperly permitted the jury to find him guilty of murder if it found that he had the intent to engage in the conduct of firing his weapon. The state, on the other hand, argues that the trial court repeatedly gave a proper statement of the elements of each offense and that the jury was properly guided in its deliberations. The state argues that, in view of the entire charge and the instructional sheets that were distributed to the jury that properly listed the elements of each offense, the jury could not have been misled. We agree with the state.

The following additional facts are relevant to our resolution of this issue. During the trial court’s preliminary instructions, the court read the statutory definition of intent contained in General Statutes § 53a-3 (ll). The court then instructed the jury on the elements of murder, stating that in order to find the defendant guilty of murder, the jury must find that he specifically intended to cause the death of the victim. The trial court also instructed the juiy on intoxication, extreme emotional disturbance and the lesser included offense of manslaughter in the first degree pursuant to General Statutes § 53a-55. At the conclusion of the court’s charge, the defendant objected to the conduct portion of the instruction on intent. The trial court did not reinstruct the jury. The trial court then provided the jury with instructional handouts that listed the elements of the various crimes and did not contain a definition of intent.

During their deliberations, the jurors inquired of the court: “At what point in the event is intent determined? We are looking for clarification of ‘intent.’ Can it happen when the trigger is pulled?” The defendant reiterated his concern that the portion of the definition on intent relating to conduct may have confused the jury. The court reread its original charge and reinstructed the jury that: “[I]n order to prove the defendant guilty of murder, the state has the burden of proof beyond a reasonable doubt (1) that the defendant specifically intended to cause the death of the victim . . . and (2) acting with that intent, the defendant shot [the victim] and thereby caused her death. So the intent exists at the time of the shooting.” The court reinstructed on the elements of intentional manslaughter in the first degree pursuant to § 53a-55 (a) (1). The jurors also requested that the testimony of the witnesses who saw the shooting be read back. The jurors later requested that the court reread the instructions on how intoxication can affect intent. The trial court then reiterated its instructions on intoxication and the statutory definition of intent.

We begin by reviewing the relevant legal principles that govern our consideration of the defendant’s claim of improper jury instructions. “It is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991); see State v. Faust, 237 Conn. 454, 473-74, 678 A.2d 910 (1996).

We first note that “ ‘[t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.’ ” State v. Prioleau, 235 Conn. 274, 322, 664 A.2d 743 (1995). “Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged . . . including intent where intent is one of those elements.” (Internal quotation marks omitted.) State v. Stevenson, 198 Conn. 560, 568, 504 A.2d 1029 (1986). “[A]n improper instruction on an element of an offense ... is of constitutional dimension.” (Internal quotation marks omitted.) State v. Prioleau, supra, 284. The trial court, in defining intent, read the entire statutory definition of § 53a-3 (11), which contains references both to intent to cause a result and to intent to engage in proscribed conduct. Although we have stated that “[i]t is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute”; State v. Chapman, 229 Conn. 529, 537, 643 A.2d 1213 (1994); that is not dispositive. We next must determine “ ‘whether it is reasonably possible that the jury was misled’ ” by the trial court’s instructions. State v. Prioleau, supra, 284.

In Prioleau, where we faced a similar situation, the trial court read the entire statutory definition of intent in a murder trial where it was not warranted by the pleadings or evidence. Although we agreed with the defendant that the portion of the instruction regarding the intent to engage in proscribed conduct was irrelevant to a murder prosecution pursuant to § 53a-54a, we rejected his claim that the instruction warranted reversal of his conviction. Our review of the record revealed that the corut referred to the intent to “ ‘engage in conduct’ ” only once and “repeatedly instructed the jury that in order to find the defendant guilty of murder, it first had to find that he had intended to cause the death of the victim.” Id., 322.

The defendant argues that Prioleau is distinguishable because, in the present case, the trial court read the improper definition of intent both in its initial charge and in its supplemental charge in response to the jurors’ requests for “clarification on ‘intent’ ” and “how intoxication can impact intent . . . .” The defendant posits that the jurors’ requests for clarification indicate that confusion existed regarding intent. Based on their questions and the trial court’s response, the defendant contends that it was possible that the court’s instructions on intent permitted the jury to find that the defendant’s intent to engage in the conduct of firing the gun satisfied the intent to cause the death of the victim. We disagree.

Our careful review of the entire charge persuades us that, as in Prioleau, any possible risk of jury confusion over the element of intent was eliminated by the trial court’s numerous proper instructions on the elements of murder. Specifically, the trial court expressly stated both in its initial charge and supplemental charge that in order to find the defendant guilty of murder, the state must prove beyond a reasonable doubt that the defendant specifically intended to cause the death of the victim. See footnote 8 of this opinion. Moreover, in its instruction on intentional manslaughter, the court distinguished between the specific intent to cause death, required for a conviction of murder, and the specific intent to cause serious physical injury, necessary for a conviction of intentional manslaughter. The trial court also provided the jury with instructional handouts that properly listed the elements of the offenses.

In addition, the factual issues of this case mitigate against the possibility of jury confusion. “A court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial.” State v. Kuroin, 186 Conn. 555, 558, 442 A.2d 1327 (1982). The defendant admitted that he pulled the trigger and shot the victim. Counsel for both parties agreed that the sole issue in dispute was the defendant’s mental state. Under the circumstances, “[i]t strains reason to believe that the jury could have [understood] the challenged instruction as not requiring that the state prove beyond a reasonable doubt that the defendant intended to kill [the victim].” (Internal quotation marks omitted.) State v. Prioleau, supra, 235 Conn. 322.

II

The defendant next argues that the trial court’s instructions regarding intoxication misled the jury and deprived him of his constitutional right to due process. Specifically, the defendant claims that: (1) the jury instructions set an improperly high standard for the jury’s consideration of the evidence of intoxication and diluted the state’s burden of proving intent beyond a reasonable doubt; and (2) the trial court improperly limited the jury’s consideration of intoxication to specific intent offenses.

A

The defendant contends that the court’s instructions failed to advise the jury of the distinction between finding that he was capable of forming a specific intent, on the one hand, and finding that he actually formed the required intent, on the other.

At trial, the defendant testified that he was under the influence of alcohol and cocaine at the time of the shooting. The trial court instructed that: “If you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether or not he was in such a state of intoxication as to be incapable of forming the required specific intent which is a necessary element for the commission of that particular crime. If you believe that the defendant, although intoxicated, was still capable of possessing the specific criminal intent, then his responsibility as to that particular crime is the same as if he were not intoxicated. You must first decide whether the defendant was intoxicated at the time of the alleged crime, and second, whether he was incapable of possessing the requisite specific criminal intent. . . . The state always has the burden of proving beyond a reasonable doubt that the defendant was capable of forming the required specific intent.”

As a preliminary matter, we note that “[w]hile intoxication is neither a defense nor an affirmative defense to a murder charge in Connecticut, evidence of a defendant’s intoxication is relevant to negate specific intent which is an essential element of the crime of murder.” State v. Stevenson, supra, 198 Conn. 568; see State v. Traficonda, 223 Conn. 273, 279, 612 A.2d 45 (1992) (“ ‘criminal defendant’s intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime’ ”).

The defendant argues that the trial court improperly instructed the jury that the evidence of intoxication negated specific intent only if the jury determined that he was incapable of possessing the requisite intent. The defendant contends that this instruction imposes too high a threshold for the consideration of intoxication because it fails to inform the jury of the distinction between whether the defendant had the capacity to form specific intent and whether he actually formed such an intent. We are unpersuaded.

“We have eschewed, and continue to eschew, judging individual instructions in artificial isolation from the overall charge.” State v. Stevenson, supra, 198 Conn. 571. In the present case, the trial court properly informed the jury that it must decide: (1) whether the defendant was intoxicated at the time of the offense; and (2) if so, whether that intoxication rendered him incapable of forming the intent required for the commission of the charged offenses. See State v. Rivera, 223 Conn. 41, 50, 612 A.2d 749 (1992). Our review of the jury instructions as a whole discloses that the court adequately informed the jury that the state had the burden of proving that the defendant actually possessed the requisite intent. We are unpersuaded that the challenged instructions, when considered in the context of the entire charge, either created an unlawful threshold for the jury’s consideration of intoxication or diluted the state’s burden of proof of specific intent.

B

The defendant next claims that the trial court’s failure to instruct the jury that his intoxication could be considered as affirmative proof that his mental state had been one of recklessness violated his due process rights. Specifically, the defendant claims that the trial court improperly instructed the jury to apply its instructions on intent and intoxication only to the specific intent crimes of murder and intentional manslaughter. The state argues that this claim is unpreserved and should not be reviewed. We agree with the state.

The defendant concedes that this claim was not preserved at trial but maintains that he is entitled to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine pursuant to Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5.

In State v. Ortiz, 217 Conn. 648, 659, 588 A.2d 127 (1991), we rejected a virtually identical request for review. In Ortiz, the defendant in a murder trial claimed that the trial court had improperly failed to instruct the jury that they could consider his intoxication as proof “that his mental state had been the less culpable one of recklessness”; id., 658; and sought review under Golding. Id., 658-59. We concluded that review of the defendant’s unpreserved jury instruction claim under Golding was unavailing “[b]ecause a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights . . . .” (Citations omitted.) Id., 659. We further concluded that the defendant’s claim was not reviewable as plain error because such review “is reserved for those truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., 659-60. Accordingly, in the present case, we decline to afford the defendant’s claim further consideration.

Ill

The defendant next claims that the trial court confused the jury by improperly referring to manslaughter in the first degree under § 53a-55 (a) (3) as “reckless indifference manslaughter.” The defendant reasons that this reference “minimized the gravity of the [defendant’s] conduct” such that it was reasonably possible that the jury would conclude that “the defendant should not be found guilty under this subsection, because his culpability was far greater” than reckless indifference. This claim is also without merit.

Our examination of the entire charge reveals that, while the trial court did use the phrase “reckless indifference manslaughter,” there was no reasonable possibility that the jury could have been misled regarding the requirement of extreme indifference. The defendant concedes that the trial court repeatedly instructed the jury properly regarding the elements necessary to convict him of manslaughter pursuant to § 53a-55 (a) (3), and provided a proper definition in its instructional handout. Furthermore, the trial court on two separate occasions stated that the term it used to describe the crime had no significance and instructed the jury that it should focus instead on the elements of the crime. “The jury is presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Raguseo, 225 Conn. 114, 131, 622 A.2d 519 (1993). Finally, as the state aptly notes, it is not reasonably possible that the jury was misled because it convicted the defendant on the charge of murder and, therefore, did not even reach the elements of the lesser included offenses.

IV

In the defendant’s final challenge to the juiy instructions, he argues that, in instructing on his affirmative defense of extreme emotional disturbance, the trial court improperly defined the term “extreme” as “the greatest degree of intensity away from the normal state of the defendant.” The defendant contends that this definition reasonably could have misled the juiy to find that a person who had been violent in the past is not entitled to use the defense because “a violent incident is not ‘the furthest’ away from the norm for the defendant.” The state argues that this claim is unpreserved and should not be reviewed. Again, we agree with the state.

The following additional facts are relevant to the defendant’s claim. The defendant submitted a request to charge on the defense of extreme emotional disturbance that defined extreme as “ha[ving] its ordinary meaning . . . [of] great or substantial.” The defendant further requested “that the Court not charge that ‘extreme’ means the ‘greatest degree of intensity away from the norm, away from the normal or usual state, for the defendant.’ ” (Emphasis in original.) At the conclusion of the juiy instructions, the defendant objected to the trial court not having used his proffered definition of extreme.

We note that “[ejxtreme emotional disturbance operates as a partial affirmative defense to murder. One who kills while under the influence of an extreme emotional disturbance cannot be convicted of murder but can be found guilty of manslaughter.” State v. Fair, 197 Conn. 106, 108, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986).

The defendant, in both his brief and at oral argument before this court, argues that the definition the trial court used was too restrictive. He advocates that we adopt a new definition of extreme as “ ‘excessive, or far advanced, or grievous.’ ” This was not, however, the definition that was proffered by defense counsel to the trial court. We decline to review this issue because the specific language that the defendant requests this court to adopt was not raised at trial. Thus, the trial court never had an opportunity to rule on the language that the defendant now advocates. Moreover, we note that the defendant’s claim does not warrant review under Golding because we previously have determined that improper jury instructions concerning the defense of extreme emotional disturbance are not of constitutional dimension. State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990); State v. Suggs, 209 Conn. 733, 751, 553 A.2d 1110 (1989). The defendant’s claim, moreover, does not warrant review under the plain error doctrine because the trial court properly instructed the jury. See footnote 18 of this opinion. Accordingly, no manifest injustice resulted to the defendant.

V

The defendant claims that the trial court improperly denied his motions to suppress the identifications of him as the shooter by Sheffield and Knox in violation of his due process rights. He argues that both identifications resulted from unnecessarily suggestive procedures and were unreliable. We disagree.

The following additional facts are relevant to our resolution of this issue. Prior to trial, the trial court held a hearing on the defendant’s motions to suppress both identifications. At the hearing, Sheffield testified that he had informed the police that he was at the scene of the shooting and that he had seen the shooter. He was directed by the police to go to the police station and was told to wait outside the station to see if he could identify the shooter.

At that time, the defendant, who had been taken to the police station for an interview and had declined to make a statement without his counsel present, was leaving the station in the company of two officers, who were supposed to drive him home. Sheffield identified the defendant as the shooter as the defendant was leaving the police station. Sheffield stated that he “immediately recognized” the defendant and, during the suppression hearing, Sheffield made an in-court identification of the defendant as the shooter.

Knox told a friend that she had seen the shooting and the friend subsequently contacted the police. On January 25,1993, Knox gave a tape-recorded statement to the police in which she described the shooter as a “brown skinned” male who wore a pair of jeans, a blue, gray and red coat, and sneakers. In her statement, Knox stated that she was “pretty sure” that she would be able to identify the shooter if she were to see him again. The next day, the police showed Knox a photographic array containing photographs of eight persons from which she identified the defendant as the shooter, stating that she was certain that the defendant was the man that she had seen shoot the victim. She was then shown an individual photograph of the defendant, and she again identified him as the shooter. At the suppression hearing, Knox made an in-court identification of the defendant as the shooter.

After hearing testimony, the trial court denied the defendant’s motions to suppress. The trial court stated that, with regard to the identification made by Sheffield, “[e]ven though a one-on-one showing may in certain circumstances tend to be suggestive, the court finds that under the circumstances of this case, there was no suggestiveness,” and “[t]here was no suggestion by any police officer who to identify . . . .” The trial court concluded that Knox’s identification of the defendant should not be suppressed because “ [t]he photo [graphic] array was not suggestive in any manner, and she made the identification, positively, of the defendant as the shooter.” Finally, the trial court determined that the identifications by both Sheffield and Knox were reliable.

In determining whether identification procedures violate a defendant’s due process rights, “[t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless rehable based on an examination of the totality of the circumstances. ... To prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. ... An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. ... If the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable.” (Citations omitted; internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 498-99, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). “The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” State v. White, 229 Conn. 125, 162, 640 A.2d 572 (1994). “Generally, ‘[t]he exclusion of evidence from the jury is . . .a drastic sanction, one that is limited to identification testimony which is manifestly suspect.’ ” State v. Wooten, 227 Conn. 677, 685-86, 631 A.2d 271 (1993); see State v. Figueroa, 235 Conn. 145, 159, 665 A.2d 63 (1995).

We turn first to the question of whether the procedures used in Sheffield’s identification were unnecessarily suggestive. The defendant contends that the combination of the one-on-one confrontation, the police’s request to help them identify the shooter, the police station setting of the identification, and the presence of two police officers flanking the defendant as he exited the station rendered Sheffield’s identification of the defendant as the shooter unconstitutionally suggestive.

“We have recognized that generally a one-to-one confrontation between a [witness] and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the [witness] that the police believe the suspect is guilty.” (Internal quotation marks omitted.) State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991). We have concluded, however, that under certain circumstances such a procedure does not constitute impermissible suggestiveness. See State v. Wooten, supra, 227 Conn. 686-87; State v. Collette, 199 Conn. 308, 310-11, 507 A.2d 99 (1986); State v. Amarillo, 198 Conn. 285, 292, 503 A.2d 146 (1986); State v. Hamele, 188 Conn. 372, 377-78, 449 A.2d 1020 (1982).

In State v. Wooten, supra, 227 Conn. 686, the defendant was seated in the back of a police car when the victim identified him as her assailant. We stated that the confrontation “although suggestive, was nonetheless not unnecessarily so because the exigencies of the situation justified the procedure . . . .” (Internal quotation marks omitted.) Id. The identification procedure provided “the victim with the opportunity to identify her assailant while her memory of the incident was still fresh”; id.; and permitted the police to quickly eliminate the person as a suspect and to “ ‘continue the investigation with a minimum of delay . . . . Id.

As in Wooten, we are persuaded that the identification procedure in the present case, although suggestive, was not unnecessarily so. “As we have remarked, [a]n immediate viewing of the suspect may be justified where it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay.” (Internal quotation marks omitted.) Id., 686-87. In the present case, the defendant was not under arrest, he had refused to make any statement, and it was necessary for the police to make a prompt identification in order to detain him. Furthermore, the trial court noted that there was no evidence that the police at any time suggested to Sheffield that the defendant was the shooter.

Even if we were to assume that the identification procedure was unnecessarily suggestive, Sheffield’s identification was reliable under the totality of the circumstances. “[Reliability is the linchpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, we must weigh the corrupting effect of the suggestive procedure in light of certain factors such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [that person’s] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Citation omitted; internal quotation marks omitted.) Id., 687-88.

At the suppression hearing, Sheffield testified that he was standing approximately thirty feet from where the shooting had occurred. His attention was focused on the scene of the man, with a gun in his hand, chasing the woman. The area was well lit and he had an unobstructed view of the man’s face. The identification was made within hours of witnessing the incident. Sheffield stated that he recognized the defendant immediately and he displayed no uncertainty in identifying the defendant. We agree with the trial court that Sheffield’s identification was reliable and, accordingly, we conclude that the trial court properly denied the defendant’s motion to suppress Sheffield’s identification.

We next consider whether Knox’s identification should have been suppressed because, as the defendant alleges, the photographic array was unnecessarily suggestive. In her interview with Detective James Ponteau, Knox described the man as “brown skinned.” The defendant claims that the photographic array contained eight photographs, “only one of which has an apparently ‘light’ skin tone, one has a medium tone, and six others have very dark skin tones.” The defendant contends that the “unique light skin characteristic of the defendant’s photograph in relation to others in the array rendered the identification procedure unnecessarily suggestive.”

“The presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure in the absence of any unfairness or other impropriety in the conduct of the exhibit.” (Internal quotation marks omitted.) State v. White, supra, 229 Conn. 162.

After reviewing the challenged array, we conclude that it was not impermissibly suggestive. The photographic array shown to Knox was a black and white photocopy of eight photographs rather than an array of color photographs, thus rendering any distinction based on skin tone extremely subtle. The defendant was depicted with seven other black males who all appeared to be approximately the same age. All of the individuals had short hair and mustaches. Although the defendant’s skin tone arguably appears somewhat lighter than the other individuals, “ ‘[a]ny array composed of different individuals must necessarily contain certain differences.’ ” State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987); see State v. Taylor, supra, 239 Conn. 499-500 (“[w]e note that there exists no constitutional mandate that gives the defendant the right to a photographic array of look-alikes”). The defendant’s photograph was not so distinctive in skin tone from the other individuals in the photographs as to “ ‘suggest to [Knox] that [the defendant] was more likely to be the culprit.’ ” Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir. 1986). Moreover, there was no evidence that the array was presented in a suggestive manner. Because we conclude that the array shown to Knox was not unnecessarily suggestive, we need not reach the defendant’s second claim that her identification was not reliable. State v. White, supra, 229 Conn. 164; State v. Tatum, supra, 219 Conn. 727.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”

       General Statutes § 29-35 provides in relevant part: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “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 . . . for which the maximum sentence which may be imposed exceeds twenty years . . . .” Section 51-199 (b) has since been amended by Public Acts 1997, No. 97-178, § 2.

       The trial court sentenced the defendant to sixty years imprisonment on his murder conviction and five years imprisonment on his conviction for carrying a pistol without a permit, to be served concurrently, for a total effective sentence of sixty years.

       General Statutes § 53a-7 provides: “Effect of intoxication. Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       The gun was not recovered.

       General Statutes § 53a-3 (11) provides: “Aperson acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . .

       The trial court’s instruction to the jury provides in relevant part: “First, I will instruct, you regarding the crime of murder. A person is guilty of murder when with intent to cause the death of another person, he causes the death of such person. In this case, the state has the burden to prove beyond a reasonable doubt two elements in order to prove the defendant guilty of the crime of murder: (X) the defendant specifically intended to cause the death of the victim . . . and (2) acting with that intent, the defendant did shoot [the victim] and thereby caused her death.
      “As to the first element, the state must prove beyond a reasonable doubt that the defendant specifically intended to cause the death of the victim. You will recall and apply my instruction regarding intent and intoxication in this regard.
      “As to the second element, the state must prove beyond a reasonable doubt that the defendant, acting with the specific intent to cause the death of the victim, did, in fact, shoot the victim and thereby caused the death of the victim. This means, of course, that the state must prove that the death of the victim was caused by the actions of the defendant.
      “As I have said, a person is guilty of murder when with specific intent to cause the death of another person, he causes the death of that person.”

       General Statutes § 53a-55 provides: “Manslaughter in the first degree: Class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       The relevant portion of the defendant’s objection to the trial court’s instruction on intent was as follows:

        “Mr. Ullmann [Defense Counsel]: I also take exception to the portion of Your Honor’s definition of intent, which includes with respect to conduct as opposed to the result. And that can be interpreted by the jury to mean that the conduct in firing the weapon, itself, [is] enough to prove the next step, which is the intent to cause death. The statute reads that the definition of intent is with respect to a rule or to conduct. I don’t think ‘or to conduct’ applies in this case ....
      “The Court: Well, I specifically told them it was the specific intent to cause the death.
      “Mr. Ullmann: I know Your Honor did, but you also gave this definition, which I think is over inclusive [in this] case . . . .”

       The defendant invokes his due process rights under both the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant does not claim, however, that he is entitled to any greater protection under the due process clause of the state constitution than he is under the analogous provision of the federal constitution. For purposes of this appeal, therefore, we treat the state and federal due process clauses as embodying the same level of protection. See
        State v. Joyce, 243 Conn. 282, 288-89 n.6, 705 A.2d 181 (1997); Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 273 n.6, 696 A.2d 315 (1997).
      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 trial court instructed the jury as follows: “You will not apply my instruction regarding intent and intoxication to this crime of reckless indifference manslaughter in the first degree.”

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

       Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5, provides in relevant part that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       General Statutes § 53a-55 provides in relevant part: “(a) A person is guilty of manslaughter in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. . . .”

       The trial court instructed the jury in relevant part as follows: “A person is guilty of reckless indifference manslaughter in the first degree when under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. There is no element of intent involved in this crime. You will not apply my instruction regarding intent and intoxication to this crime.
      “In order to prove a person guilty of the crime of reckless indifference manslaughter in the first degree, the state must prove three elements. First, that the defendant recklessly engaged in conduct which created a grave risk of death to [the victim]; second, he did so under circumstances which evinced or demonstrated an extreme indifference to human life; and third, that he thereby caused the death of [the victim].”

       The trial court’s specific statements were as follows: “Now, the words I use to label each one of these [crimes] is not significant. What is significant, as I will explain later, are the essential elements of each of these crimes.
      * * *
      “Reckless indifference, as I told you, my designation of these various labels on these various manslaughter categories, the labels are not important, it is the elements that are important.”

       The definition of extreme used by the trial court is precisely the one we adopted in State v. Elliott, 177 Conn. 1, 10, 411 A.2d 3 (1979). ’in Elliott, we reviewed the defendant’s challenge to instructions on the extreme emotional disturbance defense and stated that “[i]n its charge, the trial court should explain that the term ‘extreme’ refers to the greatest degree of intensity away from the norm for that individual.” Id.

       The colloquy between the defense counsel and the trial court provided in relevant part:
      “Mr. Ullmann: And finally, that the definition of the word ‘extreme,’ which is the greatest degree of intensity is—
      “The Court: You had—
      “Mr. Ullmann: Different from the one that I had.
      “The Court: Yes. Yes. Court’s charge will remain the same.”

       Because we conclude that the identification procedures were not unnecessarily suggestive and, in any event, were reliable under the totality of the circumstances, we need not address the state’s argument that the defendant’s testimony that he shot the victim is dispositive of the reliability of the identifications.

       We also note that Knox’s very general description of the shooter’s complexion as “brown skinned” necessarily embraced a wide degree of graduations in skin tone.