author: Peters, C. J.

text:
    State of Connecticut v. Tippetts-Abbett-McCarthy-Stratton State of Connecticut v. Knappen-Tippetts-Abbett-McCarthy et al.
    (13049)
    (13050)
    Peters, C. J., Healey, Shea, Callahan and Spallone, Js.
    Argued May 7
    decision released June 23, 1987

      Arnold J. Bai, with whom were Garie J. Mulcahey, Robert J. Morrin, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Arnold K. Shimelman, assistant attorney general, for the appellant (state).

      William B. Rush, with whom was Sharon A. Cregeen, for the appellees (defendants in each case).
   Peters, C. J.

The dispositive issue in these appeals is the propriety of the trial court’s refusal to allow the jury to consider whether the defendants were liable to the plaintiff under a theory of absolute public nuisance. The defendants, Tippetts-Abbett-McCarthy-Stratton and Knappen-Tippetts-Abbett-McCarthy, designed and supervised the construction of the Mianus River bridge (the bridge) on the Connecticut Turnpike in Greenwich. On June 28,1983, a span of the bridge collapsed into the Mianus River. The plaintiff, the state of Connecticut, brought actions against the defendants seeking damages for expenses it allegedly incurred as a result of the collapse, including, inter alia, the expense of reconstructing the bridge. The cases against the two defendants were consolidated for a jury trial. On August 14, 1986, the jury returned a verdict in the defendants’ favor. The plaintiff appealed the judgments in favor of both defendants to the Appellate Court. This court subsequently transferred the appeals to itself. We find no error.

The following facts are undisputed. The defendants designed the bridge and supervised and inspected its construction pursuant to a June 24,1954 contract with the plaintiff. The plaintiff approved the design of the bridge and accepted the bridge as part of its highway system on June 18, 1959.

The plaintiffs revised complaint, identical in both cases, was in three counts. The first count, sounding in negligence, alleged that the defendants had improperly designed, inspected and supervised construction of the bridge. Specifically, the plaintiff alleged that the defendants had improperly designed the mechanisms that supported and linked the bridge’s horizontal spans, and that these design flaws ultimately had led to the collapse of the bridge and the plaintiff’s resulting damages. The second count of the complaint alleged that the design and construction of the bridge, for which the defendants were responsible, constituted an absolute public nuisance which had continued unabated until the bridge collapsed. The third count of the complaint sought indemnification from the defendants for claims that the plaintiff had paid to third parties as compensation for deaths and injuries that had occurred as a result of the bridge’s collapse.

Trial commenced before a jury of six on July 8,1986. On August 13,1986, at the conclusion of all of the testimony, the trial court ordered the plaintiff’s second count, alleging absolute public nuisance, to be stricken. The plaintiff later took exception to the trial court’s failure to charge the jury on the nuisance count.

On August 14, 1986, the jury returned a verdict in the defendants’ favor on the two remaining counts of the plaintiff’s complaint. In addition, the jury answered several interrogatories submitted to it by the trial court. Interrogatory question one on the negligence count read: “Did the plaintiff, State of Connecticut, prove that the defendants were negligent and that such negligence was the proximate cause of the plaintiff’s injuries?” The jury’s answer was “No.” Interrogatory question two on the indemnification count read: “Did the plaintiff, State of Connecticut, prove that the injuries to third parties were proximately caused by the defendants’ performance of the work covered by the [indemnification] agreement [in the 1954 contract]?” The jury’s answer was “No.”

On August 18, 1986, the plaintiff filed a motion to set the verdict aside, claiming, inter alia, that the court had erred in failing to charge the jury on the second count of the plaintiff’s complaint alleging absolute public nuisance. In a September 3, 1986 memorandum denying the motion to set aside the verdict, the trial court justified its refusal to submit the nuisance claim to the jury on two grounds: (1) the defendants had not used property in an unlawful or unreasonable manner, as required to establish nuisance liability; and (2) the plaintiff, the owner of the bridge, having at most suffered a “private proprietary injury” as a result of the collapse, had not exercised a public right and thus could not make out a claim for public nuisance.

On appeal, the plaintiff reiterates its claim that the trial court erred in refusing to submit the nuisance claim to the jury. Essentially, the plaintiff argues that it produced sufficient evidence at trial to permit the jury reasonably to find that the bridge, as designed and engineered by the defendants, constituted an absolute public nuisance for which the defendants could be held liable. In response, the defendants claim that the trial court acted properly because: (1) the plaintiff failed to prove the elements of nuisance; (2) the defendants could not be held liable for nuisance in the absence of a showing of an unreasonable or unlawful use of land on their part; (3) the defendants could not be held liable for nuisance when they did not create or maintain the bridge, which was the source of the claimed nuisance; and (4) the plaintiff could not recover for public nuisance because it had not established its exercise of a public right.

Apart from these arguments about the parameters of the law of nuisance, the defendants also claim that the plaintiffs appeals are moot. This argument relies on the inferences to be drawn from the findings of the jury, evidenced by its responses to the interrogatories, that, according to the defendants, definitively establish that “the collapse was not caused by the negligence of the defendants and that the damages and injuries claimed by the [plaintiff] were not ‘proximately caused by the defendants’ performance of the work covered by the agreement.’ ”

If this claim were truly one of mootness, we would be obligated to consider its validity before turning to the merits of the remaining issues concerning the law of nuisance. It is familiar learning that mootness is jurisdictional. Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496-97, 522 A.2d 264 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). The defendants’ label of mootness does not, however, characterize their claim appropriately. In reality, they are raising an argument of collateral estoppel: that is, that the plaintiff is precluded from challenging the jury’s disposition of an essential question of fact, namely proximate causation, in any subsequent litigation. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 205, 520 A.2d 208 (1987); see generally State v. Fritz, 204 Conn. 156, 527 A.2d 1157 (1987). The term “mootness,” by contrast, typically applies to a situation where, during the pendency of an appeal, events have occurred that make an appeals court incapable of granting practical relief through a disposition on the merits. See State v. Hope, 203 Conn. 420, 424, 524 A.2d 1148 (1987); Hartford Principals’ & Supervisors’ Assn. v. Shedd, supra, 496-97; Shays v. Local Grievance Committee, supra, 571-72. As a claim of collateral estoppel, the defendants’ argument would require us to undertake a close examination of the record to discern what issues, if any, have been determined in prior litigation and thus may not be relitigated. See generally Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Ellis, 197 Conn. 436, 467-70, 497 A.2d 974 (1985). In the circumstances of this case, we have decided that it is preferable for us to address the merits of the nuisance claim directly.

On the merits, we agree with the trial court, and the defendants, that the count of the plaintiff’s complaint alleging absolute public nuisance was properly withdrawn from the jury because the defendants did not use property in an unreasonable or unlawful manner, and thus could not, as a matter of law, be found liable on a nuisance theory. Accordingly, we need not address the other issues concerning the law of public nuisance raised by the parties in these appeals.

As a threshold matter, we agree with the plaintiff that the trial court’s withdrawal of the nuisance claim from the jury was tantamount to a directed verdict on that issue. For this reason, in reviewing the court’s refusal to charge the jury on the nuisance claim, and its subsequent denial of the plaintiff’s motion to set aside the verdict based on that refusal, “ ‘this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff.’ ” Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).

Our prior decisions have established that in order to prevail on a claim of nuisance, a plaintiff must prove that: “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs’ injuries and damages.” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972); Heilig v. LeQuire, 4 Conn. App. 125, 127, 492 A.2d 542 (1985). In this case, where absolute public nuisance is alleged, the plaintiff’s burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public; Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943); Nolan v. New Britain, 69 Conn. 668, 678, 38 A. 703 (1897); 4 Restatement (Second), Torts § 821B; and (2) that the alleged nuisance was absolute, that is, that the defendants’ intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance. Kostyal v. Cass, supra, 98; Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942); Dingwell v. Litchfield, 4 Conn. App. 621, 624, 496 A.2d 213 (1985); 1 F. Harper & F. James, Torts (1956) p. 82 n.2.

Our case law has established no bright-line test to determine when a defendant’s connection to a particular parcel of property suffices to make it an unreasonable or unlawful “user” of that property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance; see, e.g., Filisko v. Bridgeport Hydraulic Co., supra; Beckwith v. Stratford, supra; property ownership is not a prerequisite to nuisance liability. See, e.g., Perkins v. Weibel, 132 Conn. 50, 52, 42 A.2d 360 (1945) (tenant may be liable for injuries caused by nuisance on leased property); see generally VI-A American Law of Property (1954 & 1962 Sup.) § 28.30, p. 84.

In lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant “uses” property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance. For example, a landlord’s liability for nuisance caused by a defective condition on leased property is determined, in part, by whether the portion of the property on which the condition exists is in the landlord’s control or the tenant's. See Bentley v. Dynarski, 150 Conn. 147, 151-52, 186 A.2d 791 (1962); Fonseca v. Lavado, 28 Conn. Sup. 509, 511, 268 A.2d 415 (1970). Similarly, when circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance. Henriques v. Rockefeller, 148 Conn. 654, 658-59, 173 A.2d 596 (1961). In addition, we have held that a defendant municipality may be held liable for a nuisance caused by noxious smoke and gas emitting from a dump on property which it controls, although the immediate cause of the offensive emissions was unauthorized dumping and burning by a third party who was not the defendant’s agent. Wheaton v. Putnam, 126 Conn. 330, 335, 11 A.2d 358 (1940); see also Marchitto v. West Haven, 150 Conn. 432, 437, 190 A.2d 597 (1963).

Other jurisdictions have explicitly recognized control as an essential predicate to nuisance liability. “Liability for damage caused by [a nuisance] turns upon whether the defendant was in control, either through ownership or otherwise.” Kurtigian v. Worcester, 348 Mass. 284, 285, 203 N.E.2d 692 (1965); Abruzzese v. Arlington, 7 Mass. App. 882, 882, 387 N.E.2d 154 (1979); Steman v. Coffman, 92 Mich. App. 595, 598, 285 N.W.2d 305 (1979); see also Coburn v. Public Service Commission, 104 Mich. App. 322, 327-28, 304 N.W.2d 570 (1981); Scott v. Olivia, 260 Minn. 346, 353-54, 110 N.W.2d 21 (1961).

Like the other elements of the tort of nuisance, the question of whether a defendant maintains control over property sufficient to subject him to nuisance liability normally is a jury question. See Peterson v. Oxford, 189 Conn. 740, 747, 459 A.2d 100 (1983); Filisko v. Bridgeport Hydraulic Co., supra, 36; Chazen v. New Britain, 148 Conn. 349, 355, 170 A.2d 891 (1961). In this case, however, even if the pleadings and evidence are considered in the light most favorable to the plaintiff, there is nothing to suggest that the defendants ever assumed control of the subject property. It is undisputed that at all times relevant to these appeals, the bridge, and the highway right of way in which the bridge was included, was exclusively the property of the plaintiff. While, as discussed previously, ownership is not essential to nuisance liability, nothing in the evidence suggests that the plaintiff ever relinquished its authority over the bridge to the defendants. To the contrary, the legislative enactment which authorized the construction of the Connecticut Turnpike, of which the bridge was an integral component, vested ultimate and exclusive responsibility for planning and constructing the expressway in the plaintiffs highway commissioner. See Public Acts 1953, No. 411 (2).

Nothing in the 1954 contract between the parties purported to transfer the plaintiffs ultimate control over the bridge construction project to the defendants. While, pursuant to the contract, the plaintiff delegated to the defendants some of its immediate authority over the design and construction of the bridge, this delegation was narrowly circumscribed by the terms of the contract. Under the contract, the defendants assumed responsibility for the surveying, testing, planning and design of the bridge. The defendants were required, however, to allow the plaintiff’s highway commissioner and his representatives “to review, at any time, the design work and construction in its various stages, and to make any revisions as may be directed by the Commissioner . . . . ” The contract obligated the defendants to permit the plaintiff to audit its billings and to submit monthly reports to the plaintiff documenting the progress of the project. The defendants’ power to subcontract was expressly made subject to the plaintiff’s approval, and was conditioned upon compliance with terms imposed by the plaintiff. Furthermore, under the contract, the plaintiff agreed to “perform or arrange for the performance” of materials testing and analysis related to the bridge project. These and other terms of the contract permitted the plaintiff to maintain strict control over the planning and construction of the bridge, while relinquishing only limited responsibility for the project’s execution to the defendants.

The plaintiffs delegation of its authority over the bridge project was temporally as well as functionally limited. The contract established a strict timetable for the defendants to complete their contractual duties to the plaintiff, and provided for penalties in the event of delays. Once the plaintiff had inspected the completed bridge and, in 1959, authorized its acceptance into the state highway system, the defendants’ involvement in the project ended. Thenceforth, the maintenance and operation of the bridge was the exclusive responsibility of the plaintiff.

Our review of the circumstances of this case leads us to the conclusion that the defendants did not exercise sufficient control over the bridge, or the property to which it was affixed, to render them subject to nuisance liability. Accordingly, the trial court did not err in refusing to charge the jury on the count of the plaintiff’s complaint alleging absolute public nuisance. For the same reason, the trial court was correct in holding, in its memorandum of decision denying the plaintiff’s motion to set aside the verdict, that the defendants’ activities with respect to the bridge could not, as a matter of law, constitute an unreasonable or unlawful use of land.

There is no error.

In this opinion the other justices concurred.

       Knappen-Tippetts-Abbett-McCarthy, a New York based partnership, changed its name to Tippetts-Abbett-McCarthy-Stratton in April, 1955. For purposes of this appeal, the two defendants may be deemed to constitute a single entity.

       The jury responded “Yes” to the first interrogatory on the indemnification count, which read: “Did the plaintiff State of Connecticut prove that at the time it made payment on the third parties’ claims, that [sic] the indemnification agreement was in effect?”

       The plaintiff proffered five separate grounds for setting aside the verdict. On this appeal, however, the plaintiff challenges only the trial court’s refusal to charge on the nuisance count.

       The existence of collateral estoppel, on the present record, is not immediately self-evident. The jury’s responses to the negligence interrogatories are ambiguous: they establish either that the defendants were not negligent, or that their negligence did not cause the plaintiff's injuries, or both. The jury’s response to the indemnification interrogatory, on its face, establishes only that the defendants’ performance of the contract with the plaintiff did not cause injuries to third parties. Absent a more extensive review of the record, which we deem unnecessary in view of our disposition of the appeals on other grounds, we will not definitively resolve the issue of whether the plaintiff would have been collaterally estopped from raising its nuisance claim in a second trial.

       Our case law has established that a municipality must be shown to have both created and maintained a nuisance in order to be liable for an injury caused by it. Lukas v. New Haven, 184 Conn. 205, 209, 439 A.2d 949 (1981); Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975); Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964). Our emphasis, in this case, on the element of control in nuisance liability, is not intended to abrogate or delimit the requirements for establishing a municipality’s liability for nuisance. To the contrary, a showing that a municipal defendant has created and maintained a nuisance-causing condition may concurrently serve as evidence that it controls the property on which the condition exists.

       Public Acts 1953, No. 411, as modified by subsequent amendments, now is codified in General Statutes § 13a-21.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Jeffrey Mitchell State of Connecticut v. Howard Tinney, Jr.
    (12977)
    Peters, C. J., Healey, Shea, Callahan and Mulcahy, Js.

      Argued April 7
    decision released June 23, 1987
    Milo J. Altschuler, for the appellants (defendants).
    .Michael E. O’Hare, assistant state’s attorney, with whom were John M. Massameno, and, on the brief, Gerard Esposito, assistant state’s attorneys, for the appellee (state).
   Shea, J.

The Appellate Court set aside the judgments of the trial court granting the defendants’ motions to exclude pretrial and in-court identifications, to suppress seized property, and to dismiss the information with prejudice in both cases. State v. Mitchell, 7 Conn. App. 46, 507 A.2d 1017 (1986). Having certified this combined appeal, we now conclude that the Appellate Court’s judgment must be reversed with respect to the suppression of the identifications, which will therefore be excluded from evidence during further trial court proceedings in these cases.

Although the underlying facts are set forth in detail in State v. Mitchell, supra, we summarize those pertinent to the issues in this appeal. The defendants, Jeffrey Mitchell and Howard Tinney, Jr., were charged in two count informations with sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (1), and risk of injury to or impairing the morals of a child, in violation of General Statutes § 53-21. These charges arose out of an alleged sexual assault occurring on Sunday evening, July 22, 1984, upon a fourteen year old girl, which she reported to the Ansonia police department. In response to the complaint, Officer Michael J. Kennedy went to see the victim at her grandmother’s home in Derby at approximately 11 p.m. Shortly thereafter, Officers Peter Zaskiewicz and Mark Ptak, also of the Ansonia police department, joined Kennedy and then took the victim to the Griffin Hospital in Derby.

While at her grandmother’s home, the victim told Kennedy that she had been assaulted in the parking lot of the Bradlees Department Store in Derby by two men riding in a Datsun. En route to the hospital, Zaskiewicz conversed further with the victim, who then described her assailants’ car as "a white, bullet-shaped sportscar with white wheels, which she identified as a Mazda.” State v. Mitchell, supra, 50. Her assailants, she said, were two black men in their early twenties, one taller than the other.

Because the victim stated that she had been assaulted in Derby, the Ansonia officers contacted the Derby police department, which dispatched Officers Joseph Iacuone and Eugene Mascolo to the hospital at approximately 11:30 p.m. The victim elaborated upon her rendition, telling the Derby officers that, “as she was walking through the Bradlees parking lot, two men got out of a white, torpedo-shaped sports car with shiny wheels, which she thought was a Mazda, and chased her to the end of the lot, where they caught her and assaulted her near the adjacent Baskin-Robbins ice cream store.” Id. The victim stated that the taller man wore maroon sweatpants and a tee shirt, and that the shorter man wore jeans and a tee shirt. She further said that one of the men was named “Mike.”

At the hospital, Zaskiewicz told Derby officer Robert Proto, who had also been assigned to investigate the incident, “that he knew that the defendant, Howard Tinney, Jr., drove a white Mazda RX-7 with silver wheels.” Id., 51. After Zaskiewicz had given Tinney’s address on Scotland Road in Ansonia, Proto and Mascolo went to Scotland Road, arriving at the area of the Tinney residence about 2 a.m., the morning of July 23, 1984. A short while later, a white Mazda generally fitting the description given by the victim drove up followed by a white Thunderbird. Two black males exited the Mazda and entered the Thunderbird, which was being operated by a woman. Mascolo had recognized the shorter man as the defendant Tinney, who was wearing dark blue sweatpants and a tee shirt; the taller man was the defendant Mitchell, who wore jeans and a shirt. When the Thunderbird began to drive away, Proto pulled it over and advised the occupants that he was investigating a sexual assault.

Subsequently, in a ten minute talk with Zaskiewicz, who had joined the other officers, the defendants denied any involvement in the assault, claiming that they had spent the evening in Waterbury and in a bar in Ansonia. The defendants were told, nevertheless, that they “would have to go” to the Griffin Hospital for a field identification. Id. Upon arriving at the hospital between 2:15 and 2:30 a.m., the defendants were required to wait in the police car about twenty-five minutes while a physician treated the victim. When the victim, seated in a wheelchair, was brought within twenty feet of the defendants, as they stood in the emergency room, she positively identified Tinney as one of her assailants, and said she was “pretty sure” Mitchell was the other. Id., 52. At that point the defendants were arrested. The victim was next taken to Scotland Road, where she identified the white Mazda as the one driven by her assailants, and also claimed to recognize a helmet and a wicker basket visible through the rear window of the car.

Later, at approximately 4 a.m., at the Derby police headquarters, the victim retold her account of the assault. Upon being asked to sign the typewritten transcript of that account, she hesitated, and asked instead to talk to her mother. After speaking to her mother, the victim provided and then signed a version of the facts different from the one she had just given, claiming now that it was false. According to her new account, she had gone from her grandmother’s house to Olson Drive in Ansonia at about 8:30 p.m. the previous evening. There she met a friend, who introduced her to two black men in a white sports car, whom she called “Jeff” and “Mike.” Accepting the invitation of these two men to go for a ride, the victim was taken to Nolan Field, where, according to her statement, the men gave her cocaine and forced her to have sex with them.

The white Mazda, which was registered to Tinney’s mother, was towed to the Ansonia police department at about 6:30 a.m. At about 9:30 a.m., a warrant was issued to search the car. Items seized during the subsequent search included “glassine bags and cellophane packages with white powder traces, other materials commonly associated with cocaine use, and a ‘cigarette lighter phone with residue.’ ” Id., 54.

The trial court ruled that, because “identification by one on one show-up is unnecessarily suggestive,” the victim’s identification of the defendants at the hospital was suppressihle. The court further found the victim “not to be credible,” referring to such factors as her admittedly fabricated first account of the crime and her confusion about the vehicle manufacturer, the color of the sweat pants, and the clothing in relation to the height of the assailants. As a result, the court also suppressed the photographic and in-court identifications made by the victim, finding that they could not have been “wholly independent” of, but had been based upon, the earlier hospital identification.

Additionally, the trial court granted the defendants’ motions to suppress evidence relating to the Mazda, the items found inside, and the property seized from the persons of the defendants. The court found that the defendants had been seized without probable cause. Calling the seizure of the car “warrantless and without justification,” the court noted that no proof had been offered that “the Tinney vehicle was ever at the Baskin-Robbins or on Olson Drive,” or that the helmet and wicker basket identified by the victim from outside the car, when she was taken from the hospital to view the Mazda as it was parked on Scotland Road, had previously been seen by her. Finally, the court granted the defendants’ motions to dismiss the informations with prejudice, which motions claimed “insufficient reason or evidence to continue the prosecution . . . .” See General Statutes § 54-56; Practice Book § 815 (5). From the Appellate Court judgment setting aside the judgment of the trial court, the defendants have brought the present combined appeal.

I

The defendants first claim that the Appellate Court erred in concluding both that the police had made a valid investigative detention of the defendants on Scotland Road, and that the taking of the defendants to the hospital was within the permissible bounds of that detention. See State v. Mitchell, supra, 57-63. The defendants contend that, because their detention was illegal, any evidence obtained thereby must be suppressed, including the hospital identification by the victim, “mug shots,” fingerprints, and the defendants’ clothing. We find this ground for suppression of the evidence to be unpersuasive.

A

We first examine the reasonableness of the warrant-less stop on Scotland Road of the defendants by officers Proto, Mascolo, and Zaskiewicz. We agree with the Appellate Court that “the stop of the defendants on Scotland Road was not an arrest, which would have required probable cause, but was an investigative stop requiring only reasonable and articulable suspicion.” State v. Mitchell, supra, 58; see Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); State v. Januszewski, 182 Conn. 142, 147-48, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The constitutional issue raised by this stop, therefore, is whether the actions of the Derby and Ansonia police officers exceeded the permissible limits of an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

The state concedes on appeal that, as the trial court found, the defendants were “seized” in the sense that they were “not free to leave” when they were stopped on Scotland Road. It has been frequently iterated that the constitution forbids only unreasonable searches and seizures. See Terry v. Ohio, supra, 9; Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960); State v. Januszewski, supra, 148. Terry v. Ohio established that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, supra, 22. In determining what cause is sufficient to authorize police to stop a person, courts have considered whether, based upon “the totality of the circumstances,” the detaining officers had “ ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); see also Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); State v. Scully, 195 Conn. 668, 674, 490 A.2d 984 (1985). “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Terry v. Ohio, supra, 21 n.18; see also State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987); see generally 3 W. LaFave, Search and Seizure (1987) § 9.3 (b).

We conclude that Proto, Mascolo and Zaskiewicz were justified in stopping the defendants based upon the victim’s descriptions of the assailants and their car. Those descriptions were sufficient to give rise to a reasonable suspicion that the defendants were the two black males who had assaulted the victim. See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985) (extending Terry to permit detention of persons reasonably suspected of involvement in completed crime). The age of the defendants, their relative heights, the fact that one wore jeans while the other wore sweatpants and that the two were riding in a white Mazda sports car were all characteristics that corresponded to the information given by the victim. We agree with the Appellate Court that the existence of discrepancies between the victim’s descriptions and the actual appearance of the defendants “does not, in and of itself, vitiate the reasonable suspicion created by the similarities.” State v. Mitchell, supra, 59; see also District of Columbia v. M.M., 407 A.2d 698, 701 (D.C. App. 1979); Matter of J.G.J., 388 A.2d 472, 474 (D.C. App. 1978).

The test enunciated by the United States Supreme Court of whether an investigative stop passes constitutional muster balances the nature of the intrusion upon personal security against the importance of the governmental interest inducing the intrusion. See United States v. Hensley, supra, 228. A strong law enforcement interest has been particularly recognized in the context of felonies or violent crimes, because “it is in the public interest that the crime be solved and the suspect detained as promptly as possible.” Id., 229. Furthermore, when the situation in which a suspect has been detained has afforded him a lesser expectation of privacy; see, e.g., Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); fourth amendment protections have been deemed to be correspondingly less stringent. Winston v. Lee, 470 U.S. 753, 767, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985). A felony such as the one reported in the present case, a sexual assault upon a child, is certainly among those warranting prompt resolution. The defendants were detained on a public street at approximately 2 a.m., circumstances that are reasonably regarded as involving a less than maximal expectation of privacy. See generally Adams v. Williams, 407 U.S. 143, 147-48, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). Thus, our conclusion that the initial stop of the defendants was constitutionally valid is consistent with an evaluation of that stop under the delineated balancing test.

B

We must next determine whether the police, in transporting the defendants to the hospital for a viewing by the victim, exceeded the permissible scope of the investigative detention. A Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which that stop was made. See United States v. Sharpe, 470 U.S. 675, 684, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). “Like the determination of initial justification, this inquiry is fact-bound.” State v. Aillon, supra, 401; see also P. Bator & J. Vorenberg, “Arrest, Detention, Interrogation and the Right to Counsel: Basic Problems and Possible Legislative Solutions,” 66 Colum. L. Rev. 62, 63 (1966). “The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973); see also State v. Aillon, supra; State v. Carter, supra, 618.

The record indicates that, from the initial stop to the ultimate identification by the victim at the hospital, a total of thirty-nine minutes elapsed. During that period, the detaining officers spoke with the defendants, who were seated in their friend’s car, for about ten minutes, drove the defendants to the hospital, a ride lasting about four minutes, and then caused the defendants to remain seated in the police car for some twenty-five minutes while the victim was being treated, “during which time Tinney asked if he could call his father and was told by Proto that ‘as soon as we finish you can do anything you want . . . .’ ” State v. Mitchell, supra, 52.

The United States Supreme Court has acknowledged that there may be “difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest. Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops.” United States v. Sharpe, supra, 685. The court in Sharpe continued, setting forth the following test: “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Id., 686; see also Michigan v. Summers, 452 U.S. 692, 701 n.14, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), quoting 3 W. LaFave, Search and Seizure (1978) § 9.2, p. 40.

Our review of the record convinces us that the Appellate Court correctly concluded that the detaining officers acted diligently to pursue a means of investigation that was likely to confirm or dispel their suspicions quickly, i.e., “display of the defendants to the victim while her memory was still fresh . . . .” State v. Mitchell, supra, 62. It is beyond dispute that the major portion of the detention, the twenty-five minute wait while a physician treated the victim, did not result from any dilatoriness on the part of the officers. Moreover, the denial by the defendants of any involvement in the sexual assault, during their initial talk with the officers, was not necessarily so convincing as to have dispelled the questions in the officers’ minds. State v. Watson, supra. We conclude that, under the circumstances of this case, the defendants’ thirty-nine minute detention was reasonable. Compare United States v. Sharpe, supra, 686-88 (twenty minute stop held to be reasonable), and United States v. Richards, 500 F.2d 1025, 1029 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95 S. Ct. 1118, 43 L. Ed. 2d 393 (1975) (one hour detention held to be reasonable), with United States v. Place, 462 U.S. 696, 710, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“the prolonged 90-minute detention . . . is sufficient to render the seizure unreasonable”).

We note that detaining a suspect to effectuate a viewing by witnesses to a crime has been deemed to be a permissible investigative technique. See United States v. Short, 570 F.2d 1051, 1054 (D.C. Cir. 1978); State v. Aversa, 197 Conn. 685, 692, 501 A.2d 370 (1985); Buckingham v. State, 482 A.2d 327, 334 (Del. 1984); Davis v. United States, 498 A.2d 242, 245 (D.C. App. 1985); Finney v. State, 420 So. 2d 639, 643 (Fla. App. 1982); People v. Canity, 100 Ill. App. 3d 135, 149-50, 426 N.E.2d 591 (1981); State v. Byers, 85 Wash. 2d 783, 785, 790, 539 P.2d 833 (1975); State v. Isham, 70 Wis. 2d 718, 724, 235 N.W.2d 506 (1975); cf. People v. Harris, 15 Cal. 3d 384, 391, 124 Cal. Rptr. 536, 540 P.2d 632 (1975). Further, requiring a suspect to accompany a police officer to another place, after Terry, does not necessarily transform what would otherwise be a permissible investigatory seizure into an arrest. See United States v. Short, supra; People v. Stevens, 183 Colo. 399, 407, 517 P.2d 1336 (1974); State v. Griffin, 459 A.2d 1086, 1089-90 (Me. 1983); State v. Byers, supra, 790.

In sum, we find no error in the conclusion of the Appellate Court that the seizure of the defendants, from the initial stop on Scotland Road to the viewing by the victim at the hospital, was a valid investigative detention. Accordingly, we disagree with the defendants that the seizure provides a basis for the suppression of the hospital identification and of any other evidence consequently obtained from the persons of the defendants.

II

The defendants next claim that the Appellate Court erred in holding that the initial identification of the defendants by the victim at the hospital was neither impermissibly suggestive nor unreliable. The trial court had determined that, because “identification by one on one show up is unnecessarily suggestive,” and because the subsequent out-of-court and in-court identifications were a product of the hospital viewing, such identifications must be suppressed. We conclude that the trial court’s granting of the defendants’ motions to suppress the identifications was not erroneous as a matter of law, and, therefore, that the holding of the Appellate Court to the contrary must be reversed.

This court has adopted a two-pronged inquiry in determining whether identification procedures have violated a defendant’s due process rights. First we address whether the identification procedure was unnecessarily suggestive. If so, the second question becomes whether the identification was nevertheless reliable based on an examination of the “totality of the circumstances.” See Manson v.Brathwaite, 432 U.S. 98, 113-14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311 (1987); State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

The show-up, or one-to-one confrontation between a victim and the suspect police present to him, has been deemed “inherently and significantly suggestive; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); because it conveys the message that the police have reason to believe the suspect guilty. State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979).” State v. Maturo, 188 Conn. 591, 595-96, 452 A.2d 642 (1982); see also State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983). Upon finding suggestive circumstances, courts have then asked whether such circumstances were impermissible or unnecessary. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Hospital room show-ups have been upheld as necessary where a serious injury has disabled the witness or defendant. See Stovall v. Denno, supra; Trask v. Robbins, 421 F.2d 773, 775 (1st Cir. 1970); Johnson v. People, 172 Colo. 72, 81, 470 P.2d 37 (1970); People v. Young, 6 Ill. App. 3d 119, 123, 285 N.E.2d 159 (1972); People v. Rivera, 22 N.Y.2d 453, 455, 293 N.Y.S.2d 271, 239 N.E.2d 873 (1968). In other instances, however, hospital show-ups have been considered unnecesssary because the suspect or witness has been in no immediate danger of death. See Smith v. Coiner, 473 F.2d 877, 880-81 (4th Cir.), cert. denied sub nom. Wallace v. Smith, 414 U.S. 1115, 94 S. Ct. 848, 38 L. Ed. 2d 743 (1973); People v. Stock, 15 Ill. App. 3d 722, 728, 304 N.E.2d 646 (1973).

In the present case both defendants were brought into the foyer of the hospital emergency room. The victim, seated in a wheelchair, was wheeled by them twice. This identification procedure was inherently suggestive. Because the victim, at the time of the show-up, was neither in immediate danger of death nor seriously injured, the trial court's finding that such suggestiveness was unnecessary was not unreasonable. Although it might have been difficult to assemble a full lineup at 2:30 a.m., the victim, taken immediately after the show-up to Scotland Road to view the Mazda, could just as readily have been taken to view the defendants in a more neutral setting. Even presenting the defendants to the victim individually, rather than as a pair, would certainly have been a less suggestive alternative. Thus, we disagree with the Appellate Court’s assertion that the initial identification procedure was not impermissibly suggestive.

The next inquiry under the two-pronged approach is whether the hospital identification, in the context of the totality of the circumstances, was nevertheless reliable. The factors to be considered in making this determination “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, supra, 114; State v. Ramsundar, supra, 10-11. The Appellate Court stated that a careful reading of Manson indicates that this reliability inquiry “is a question of admissibility of evidence, not of whether the identification is to be believed .... Short of the point at which the identification procedure produces ‘ “a very substantial likelihood of irreparable misidentification” ’; [Manson v.Brathwaite, supra, 116]; the identification ‘evidence is for the jury to weigh . . . .’(Emphasis added.) Id., 116.” State v. Mitchell, supra, 66.

Although, based on the allegations of the victim, the trial court might reasonably have regarded the hospital identification as sufficiently reliable to protect the defendants’ due process rights, we cannot agree with the Appellate Court that such a conclusion was required as a matter of law. The reliability inquiry delineated in Manson is fact-bound and made on an ad hoc basis. Generally, where the admissibility of evidence depends upon a preliminary question of fact to be determined by the court, “its decision is not to be reversed unless there is clear and manifest error.” Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see Practice Book § 4061; State v. Brigandi, 186 Conn. 521, 530, 442 A.2d 927 (1982).

In its oral memorandum of decision, the trial court expressed concern about such factors implicating the reliability determination as the victim’s degree of attention and the accuracy of her prior description of the assailants. The court referred to the victim’s inability to describe the shirts worn by her assailants after allegedly having been with them for two and one-half hours, “the fact that she initially thought the car was a Datsun and that she had never made a positive [identification] of [the defendant] Mitchell,” and the victim’s confusion about the “size and facial characteristics and clothing” of her assailants, and also about their names and the color of the sweatpants worn by one of them. Although the trial court did not expressly structure these concerns into a reliability inquiry, or style them as such, we note that the state did not seek an articulation of the factual basis for the court’s conclusions as provided in Practice Book § 4051. See Foster v. Waterford, 186 Conn. 692, 694 n.4, 443 A.2d 490 (1982); see also Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982); Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). Because it cannot be said that the trial court’s assessment of the hospital identification of the defendants by the victim was clearly erroneous, we must reverse the decision of the Appellate Court in respect to that identification.

Concluding that the trial court had erred in granting the defendants’ motions to suppress the hospital identification, the Appellate Court found no need to inquire whether that initial identification had tainted the subsequent photographic and in-court identifications. See State v. Mitchell, supra, 67. That the initial identification had been invalid, however, placed the state under a constitutional restraint to establish an independent basis for the subsequent identifications. Thus, the burden was on the state to establish by clear and convincing evidence that the subsequent identifications were based on the victim’s independent recollection. See State v. Guertin, supra, 459; State v. Gold, 180 Conn. 619, 656, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Lee, 177 Conn. 335, 339-40, 417 A.2d 354 (1979). The trial court found that the state “should have but has not proven to the Court that the [photographic and in-court identifications made by the victim] could be wholly independent ... of the one on one identification made at the Hospital . . . .” Nothing in the record demonstrates that the court exceeded its prerogative as the trier in drawing that conclusion. We conclude that the Appellate Court erred in overturning the trial court's judgment in respect to the granting of the defendants’ motions to suppress the hospital and subsequent identifications.

III

The defendants’ final claim is that the Appellate Court erred in reversing the trial court’s dismissal of the pending informations based on the insufficiency of the evidence. The Appellate Court determined, in effect, that the trial court, in granting the defendants’ motions to dismiss, had abused the discretion conferred upon it by General Statutes § 54-56. That statute allows the court to dismiss an information at any time, upon motion of the defendant, “if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.” General Statutes § 54-56; see State v. Corchado, 200 Conn. 453, 460, 512 A.2d 183 (1986). We affirm the judgment of the Appellate Court in this respect.

In this appeal the defendants have not challenged the holding of the Appellate Court that defendant Tinney’s white Mazda and the evidence seized therein had been improperly suppressed because, “[o]nce the victim positively identified the car as the one in which her assailants were sitting before they chased her and assaulted her, the police had probable cause to believe that the car contained evidence of the crime. . . . Once the police lawfully seized the vehicle on the basis of probable cause, they had the authority to search it without the necessity of securing a warrant.” State v. Mitchell, supra, 71; see also United States v. Johns, 469 U.S. 478, 484, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985); United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); State v. Johnson, 183 Conn. 148, 154, 438 A.2d 851 (1981). The defendants are therefore deemed to have abandoned any claim of error in respect to this holding. See Pepe v. New Britain, 203 Conn. 281, 282 n.1, 524 A.2d 629 (1987); Blancato v. Feldspar Corporation, 203 Conn. 34, 36 n.3, 522 A.2d 1235 (1987); State v. Bowen, 167 Conn. 526, 533, 356 A.2d 162 (1975).

“On a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state.” State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). Wholly apart from the victim’s identifications of the defendants, we agree with the state that her positive identification of the Mazda, including her recognition of some of the items contained therein, and her description of her assailants, despite some inaccuracies, provide sufficient evidence of the defendants’ identity as her assailants to justify placing the defendants on trial. General Statutes § 54-56. Accordingly, we conclude that the Appellate Court correctly found error in the granting by the trial court of the defendants’ motions to dismiss.

The judgment of the Appellate Court is reversed in part, and the cases are remanded to that court with direction to remand them to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       “Prior to the identification of the defendants, the victim had been asked to identify three other men at the hospital. The first two were young black men whom the police stopped on the street near the hospital and brought into the emergency room for a possible identification. The victim knew these two men and did not identify them as her assailants. The third was a black man who had come to the emergency room for treatment. The victim also knew him, and did not identify him as one of her assailants.” State v. Mitchell, 7 Conn. App. 46, 52 n.1, 507 A.2d 1017 (1986).

       At the hearing on the defendants’ motions, the victim stated “that she initially falsified the location and details of the assault because she did not want her mother to know that she had been in the Olson Drive area of Ansonia, which was an area mainly populated by black people, and that she did not want her mother to know that she had entered the car voluntarily.” State v. Mitchell, 7 Conn. App. 46, 53 n.3, 507 A.2d 1017 (1986).

       Sometime after having identified the defendants at the hospital, the victim identified the defendants from a photoboard. The defendants’ pictures contained in the display were the mug shots taken of them on the night they were arrested.

       The defendants purport to rely upon both article first, § 7 of our state constitution and the fourth amendment to the United States constitution. The defendants quote the language of this court in State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1986), that article first, § 7, “affords more substantive protection to citizens than does the fourth amendment to the federal constitution in the determination of probable cause.” In Kimbro, this court discussed the proper test to be applied in determining whether an informant’s tip had provided a sufficient basis for a finding of probable cause. We rejected the “totality of the circumstances” analysis set out by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), adopting instead the stricter two-prong ”Aguilar - Spinelli” test, which considers, on the one hand, an informant’s “veracity” and “reliability,” and, on the other hand, his “basis of knowledge.” See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). We decline to extend our disparate treatment of state and federal search and seizure provisions to the facts of this case. See State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985); see also State v. Ostroski, 186 Conn. 287, 290-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); State v. Derrico, 181 Conn. 151, 157-58, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Duhaime, 33 Conn. Sup. 129, 133, 365 A.2d 837 (1976).

       In this appeal, the defendants do not take issue with the holding of the Appellate Court that, “once the victim identified them at the hospital, probable cause to arrest them clearly existed. Thus, their arrests were valid, as were any searches of their persons that followed.” State v. Mitchell, 7 Conn. App. 46, 70, 507 A.2d 1017 (1986); see State v. Magnotti, 198 Conn. 209, 214, 502 A.2d 404 (1985). Although, in the discussion that follows, we reverse the Appellate Court in respect to the validity of the hospital identification, the conclusion of the Appellate Court that there was probable cause to arrest the defendants remains valid. The suggestiveness of the identification procedure, which requires suppression of the victim’s identification at a trial, does not substantially detract from the reasonableness of police reliance upon that identification in concluding that there was probable cause for an arrest of the defendants. Cf. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

       “[General Statutes] Sec. 54-56. dismissal of information by court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”
      See also Practice Book § 815 (5), which provides: “The following, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information . . . . (5) Defenses or objections based on the insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial.”

       In the Appellate Court the defendant Tinney argued that the warrant issued at 9:30 a.m., July 23,1984, to search his car was invalid. This defendant premised his contention “on the fact that the supporting affidavit, which tracked the victim’s second, signed statement describing the incident as it occurred in the car at Nolan Field, did not disclose that the victim had earlier given a different and false version to the police. Thus, Tinney argues, the warrant was invalid under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).” State v. Mitchell, 7 Conn. App. 46, 71-72, 507 A.2d 1017 (1986). Although it had concluded that the police had the authority, in this case, to search the car without the necessity of having secured a warrant, the Appellate Court noted that, in any event, Tinney had conceded at oral argument that he had failed to make the “substantial preliminary showing” required by Franks as a precondition to obtaining an evidentiary hearing challenging the truthfulness of an affidavit supporting a search warrant. See id., 72; see generally Franks v. Delaware, supra, 155-56, 171-72.


author: Per Curiam.

text:
    State of Connecticut v. Matthew Robinson
    (12726)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued June 2
    decision released June 30, 1987

      David F. Egan, public defender, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom was James G. Clark, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue on this appeal is whether the trial court committed reversible error in its instructions to the jury on circumstantial evidence. The defendant, Matthew Robinson, was charged by amended information with murder, in violation of General Statutes § 53a-54a (a), assault in the first degree, in violation of General Statutes § 53a-59 (a) (l), and assault in the second degree, in violation of General Statutes § 53a-60 (a) (2). Following trial, a jury found him guilty of murder and assault in the first degree. The defendant was sentenced to a total term of imprisonment of forty-five years. He appeals to this court from the judgment of his conviction. We find no error.

The charges against the defendant arose from a shooting that occurred at a Norwalk nightclub early in the morning of February 20, 1984. Three people were injured, one fatally, as a result of the shooting. Two eyewitnesses, testifying for the prosecution, identified the defendant as the person who had fired the shots. Two other prosecution witnesses testified that they had seen the defendant outside the nightclub directly following the shooting. Another prosecution witness, a neighbor of the defendant, testified that the defendant had telephoned her about an hour after the shooting and told her that he had “just killed” one of the victims. The defendant presented no evidence on his behalf. On cross-examination and in his closing argument to the jury, however, he attempted to discredit the state’s witnesses. In particular, he sought to expose flaws in the eyewitnesses’ ability to observe the perpetrator of the shooting, and alleged inconsistencies in the testimony of various witnesses.

The defendant claims that the trial court erred in instructing the jury on the state’s burden of proof relative to circumstantial evidence. The trial court instructed the jury that it could draw inferences from circumstantial evidence provided that: (1) “the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt”; and (2) “the inference asked to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.) The defendant claims that this instruction diluted the state’s burden of proof beyond a reasonable doubt, denying him his constitutional right to a fair trial. We disagree.

The defendant’s claim of error is governed, both procedurally and substantively, by our recent decisions in State v. Mullings, 202 Conn. 1, 12-14, 519 A.2d 58 (1987), and State v. Whelan, 200 Conn. 743, 755-58, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), both of which involved instructions on circumstantial evidence substantially identical to the one given in this case. In Whelan, as in this case, the defendant failed to take exception to the challenged portion of the court’s charge. As in Whelan, however, we review the defendant’s claim of error under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because it “implicates the fundamental constitutional right that the state establish [the defendant’s] guilt beyond a reasonable doubt.” State v. Whelan, supra, 756.

Turning to the merits of the defendant’s claim, we first determine the appropriate standard of review. Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof. State v. Mullings, supra, 12; State v. Whelan, supra, 757; State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985); State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). In this case, however, the defendant concedes, and the record reveals, that the principal factual issue at trial was not intent, but the identity of the perpetrator of the crimes. Identity, unlike intent, is not typically proven by circumstantial evidence. Accordingly, we review the court’s instruction not in isolation, but in the context of the charge as a whole, to determine whether it is “ ‘reasonably possible that the jury was misled’ ” by an erroneous explanation regarding the use of circumstantial evidence. State v. Whelan, supra, 756; State v. Mullings, supra, 12; State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Farrar, supra, 155-56.

We agree with the defendant that the trial court erred in instructing the jury that it could infer facts from circumstantial evidence if it was “more probable than not” that the inferred facts were true. State v. Rodgers, supra, 57. Upon review of the charge in its entirety, however, we conclude that it is not reasonably possible that the jury was misled by this single erroneous description of the state’s burden of proof. The trial court correctly instructed the jury on several occasions that the defendant was presumed to be innocent and that the state had the burden of proving each element of the crimes charged beyond a reasonable doubt. Moreover, with regard to each count, the trial court specifically instructed the jury that the state was required to prove the defendant’s identity as the perpetrator beyond a reasonable doubt. We hold, therefore, that “it was not reasonably possible that the isolated use of the phrase 'more probable than not’ confused or misled the jury with regard to the state’s heavy burden of proof.” State v. Mullings, supra, 14; State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986), cert. denied, 202 Conn. 805, 520 A.2d 1286 (1987); State v. Farrar, supra, 156.

There is no error.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (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] Sec. 53a-59. assault in the first degree, class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

       “[General Statutes] Sec. 53a-60. assault in the second degree: CLASS D felony, (a) A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

       Contrary to the state’s argument, our determination that the defendant’s claim of error qualifies for review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), invariably precedes our consideration of the merits of the defendant’s claim. We do not undertake substantive review of a claim not properly preserved at trial to determine if it warrants Evans review. Rather, “[o]nce it has been established that the record adequately supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial . . . the merits of the claim must be determined.” (Emphasis added.) State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985).

       In addition to the crimes charged in the amended information, the trial court also instructed the jury, pursuant to the defendant’s request, on the crime of manslaughter in the first degree, as a lesser included offense of murder.


text:
    Town of Westport v. State of Connecticut et al.
    (13078)
    Peters, C. J., Healey, Shea, Callahan and Lavery, Js.
    Argued May 13
    decision released June 30, 1987

      Richard L. Albrecht, with whom was Stewart I. Edelstein, for the appellant (plaintiff).

      Cornelius F. Tuohy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellees (defendants).
   Peters, C. J.

The determinative issue on this appeal is whether the state justifiably relied upon the existence of an emergency when it constructed a temporary truck weighing and inspection station without first undertaking an environmental impact evaluation. The plaintiff, the town of Westport, filed a complaint seeking injunctive and declaratory relief from the defendants. As grounds for this relief, the plaintiff claimed that the construction and operation of a temporary weighing station between Exits 17 and 18 on Interstate Highway 95 in Westport violated the Environmental Policy Act, General Statutes §§ 22a-l through 22a-13, and the Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20. The trial court, after an extensive hearing, rendered judgment for the defendants. The trial court found that the plaintiff could not prevail under the Environmental Protection Act, and that the defendants’ noncompliance with the Environmental Policy Act was justified by that act’s express exemption for emergency measures. General Statutes § 22a-lc. The plaintiff sought and received permission for a direct appeal to this court pursuant to General Statutes § 52-265a. We find no error.

The trial court’s memorandum of decision establishes the following facts. Interstate Highway 95, now known as the Governor John Davis Lodge Turnpike, was opened in the Westport area in 1957. The turnpike was operated as a toll road until October, 1985. Removal of the toll stations resulted in a 20 percent increase in traffic and a marked increase in accidents.

Governor William A. O’Neill, on August 22, 1986, declared a state of emergency on Connecticut’s highways. Among the measures he then announced was the establishment of a temporary truck weighing and inspection station on the turnpike in Westport. Four days later, the deputy commissioner of transportation, relying on General Statutes § 13b-26 (f), declared the existence of an “emergency condition.” His emergency declaration ordered the construction of a weighing and inspection station at a designated site in Westport that had formerly been a rest area but had been entirely closed to the public in recent years.

The Westport station is used for weighing and inspection purposes by having state inspectors flag over many but not all trucks using the highway. Those trucks that do not pass inspection may be “deadlined” at the rear of the parking lot at Sherwood Island State Park. Those that are found to be leaking either cargo or fuel may be required to discharge such fluids either over a sand pile or over a containment tank. The containment site, weighing station and inspection area are located less than 200 feet from the Sherwood Mill Pond, which is a prime coastal estuary. The “deadline” site is located adjacent to prime tidal wetlands.

The trial court expressly recognized that contamination by hazardous materials from the station site could jeopardize the environmental integrity of the pond, the estuaries and the wetlands. Based on experience, however, it is likely that, on average, less than one truck a month will be found to leak upon inspection at the Westport station. New leaking trucks were discovered either during the initial inspections conducted at the Westport station or during earlier analogous inspections at a Mianus River Bridge station.

On the basis of these factual findings, the trial court ruled that the plaintiff had standing to pursue its claims under both the Environmental Policy Act and the Environmental Protection Act, and that its action was not barred by laches. The court also determined that these statutes applied to the construction of the West-port weighing and inspection station. On the merits of the plaintiffs claims, the court concluded that the plaintiff could not prevail under the Environmental Protection Act because it had failed to prove “any present reasonable expectation of unreasonable pollution.” With respect to the Environmental Policy Act, however, the court determined that, because the project could “arguably damage the environment,” the state had failed to comply with that act’s requirement for preparation of an environmental impact assessment. Nonetheless, the court ultimately rendered judgment for the defendants under the Environmental Policy Act on the ground that the state’s failure to prepare an environmental impact statement was excused because of the statutory exception, in § 22a-lc, for “emergency measures . . . undertaken in response to an immediate threat to public health or safety.”

In this court, controversy has been limited to the scope and the applicability of the Environmental Policy Act. With regard to that act, the defendants challenge the trial court’s conclusion that, but for the existence of an emergency, the department of transportation would have been required to undertake an environmental impact study before constructing the Westport weighing and inspection station. They claim that the trial court erred in applying the act retroactively to a site that antedated the effective date of the act, and in requiring an environmental assessment in the absence of a showing that departmental action would “significantly” affect the environment. General Statutes § 22a-lb (b). The plaintiff contends, on the other hand, that the trial court erred in its construction and application of the emergency exception contained in § 22a-lc. Finally, in a motion filed after the parties submitted their briefs, the defendants urge us to dismiss the plaintiff’s appeal as moot because environmental impact evaluations have now been prepared for the Westport station, and elsewhere, in anticipation of finding a permanent location for a weighing and inspection station near the western terminus of Interstate Highway 95.

I

Because mootness is jurisdictional, this court having no authority to deliver advisory opinions, we must first address the question raised by the defendants’ motion to dismiss. State v. Hope, 203 Conn. 420, 423-24, 524 A.2d 1148 (1987); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496-98, 522 A.2d 264 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571-74, 499 A.2d 1158 (1985). In their motion, the defendants allege that a detailed written environmental impact evaluation has now been prepared for the Westport weighing station, and that the public, including the plaintiff, has been notified of its availability.

As the plaintiff notes, however, the process of environmental assessment requires more than the publication of an environmental impact evaluation. Under the Environmental Policy Act, an agency’s environmental evaluation must be reviewed and approved by the state office of policy and management, which has the authority, if necessary, to require whatever revisions are needed to satisfy existing statutory and regulatory requirements. General Statutes §§ 22a-lb through 22a-le. Since the process of environmental evaluation has not yet been completed, the plaintiff’s appeal is not moot.

II

The defendants urge us to affirm the judgment of the trial court by a different route than that taken by that court. The defendants argue that no environmental assessments of any kind were required in this case for two reasons: (1) the provisions of the Environmental Policy Act do not govern the “reactivation” of the Westport weighing station; and (2) the act, in § 22a-lb (b), requires environmental impact assessments only for departmental actions “which may significantly affect the environment.” We are unpersuaded that either of these reasons justifies the failure to obtain an environmental assessment.

The defendants raised the retroactivity argument in the trial court, where they maintained that the West-port weighing station was planned, designed and constructed long before the effective date of the Environmental Policy Act. The trial court took no issue with the principle of law upon which the defendants rely, namely that statutes are presumed to operate prospectively. Enfield Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); East Village Associates, Inc. v. Monroe, 173 Conn. 328, 331-32, 377 A.2d 1092 (1977); see General Statutes § 55-3. Instead, the court found, as a matter of fact, that “the construction and operation of a truck inspection station [is] substantially different from the rest area and intermittent inspection of the station previously in use.” Specifically, the court found that the site had at one time been a highway rest area, and had been used intermittently as a weighing station employing temporary mobile scales. In recent years it had been entirely closed to traffic. In constructing the weighing station, the department of transportation had laid new asphalt and installed barriers, guardrails, a shelter, and lights. A weighing scale had been embedded in a pit. Water catch-basins and connecting pipes had been relocated, and a large concrete epoxy lined containment tank had been added to the station area.

Since the defendants have not challenged the validity of any of these findings of fact, the only question that remains is whether the Environmental Policy Act governs substantially new construction on property that the state has owned and used for many years. The case cited by the defendants, National Wildlife Federation v. Goldschmidt, 504 F. Sup. 314, 317 (D. Conn. 1980), aff'd, 677 F.2d 259 (2d Cir. 1982), does not address this question, because it deals with a project already under construction when the national Environmental Protection Act became effective. Absent compelling authority to the contrary, and recognizing the vital remedial purposes served by the Environmental Policy Act, we conclude, as did the trial court, that the act applies to all new construction undertaken after its effective date. See also Regs., Conn. State Agencies § 22a-la-l (2).

The defendants maintain, in the alternative, that the trial court should have found the construction of the Westport weighing station to be exempt from the requirements of the Environmental Protection Act because the plaintiff failed to prove that the actions of the department of transportation would “significantly affect the environment.” General Statutes § 22a-lb. As the trial court correctly noted, this argument is foreclosed by our decision in Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 63, 441 A.2d 68 (1981). In that case, we construed § 22a-lb to require an environmental impact assessment “whenever [a] project will arguably damage the environment.” (Emphasis added.) Id., 67. The trial court concluded that the plaintiff at trial had produced sufficient evidence “that, if presented to [the department of transportation], should have caused [the department] to begin the process of deciding if an E IS or FONSI was necessary.” We emphasize again, as we did in Manchester Environmental Coalition v. Stockton, that the purpose of the Environmental Policy Act is to ensure systematic consideration of environmental risks at the early stages of planning before the state commits its resources to the particular use of a site. Id., 68; Regs., Conn. State Agencies § 22a-la-7 (b); see also National Audubon Society v. Hester, 801 F.2d 405, 407-408 (D.C. Cir. 1986); Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109, 1113-15 (D.C. Cir. 1971). As the trial court held, the department’s failure to undertake such planning in this case violated the act unless its conduct fell within one of the act’s specific statutory exemptions.

Ill

The plaintiff contends, in its appeal, that the trial court erred in its interpretation of the statutory exemption for “emergency measures undertaken in response to an immediate threat to public health or safety.” General Statutes § 22a-lc. We will treat jointly the plaintiff’s two arguments addressed to the scope of such an exemption as a matter of law, and then consider its other two arguments about the applicability of the exemption to the facts of this case.

As a matter of law, the plaintiff urges us to construe the emergency exemption in light of the remedial policy of the Environmental Policy Act. That policy requires public agencies to undertake programmatic pursuit of environmental assessments of their actions so as to “conserve, improve and protect [Connecticut’s] natural resources and environment and to control air, land and water pollution in order to enhance the health, safety and welfare of the people of the state.” General Statutes § 22a-l. The purpose of the act is to have environmental assessments precede agency action. General Statutes § 22a-lb (b).

In order to implement the policy and the purpose of the Environmental Policy Act, it is appropriate to construe its exemptions narrowly and to impose the burden of proving the applicability of an exemption upon the agency claiming its benefit. Conservation Commission v. Price, 193 Conn. 414, 423-24, 479 A.2d 187 (1984); Wilson v. Freedom of Information Commission, 181 Conn. 324, 329, 435 A.2d 353 (1980); State v. Avcollie, 174 Conn. 100, 109-10, 384 A.2d 315 (1977). Nonetheless, we disagree with the plaintiff that the failure of the department of transportation to initiate an environmental assessment before the commencement of work at the Westport site automatically and totally deprives the defendants of the right to invoke the emergency exemption. Even narrowly construed, the emergency exemption must have some scope of operation. The legislature could reasonably have concluded that conditions of emergency would require an immediate governmental response that could not await the preplanning that the Environmental Policy Act normally envisages.

We turn then to the question of the applicability of the emergency exemption in the circumstances of this case. In that regard, the plaintiff has launched a twofold challenge to the rulings of the trial court, claiming that (1) the department of transportation’s declaration of emergency was improper, and (2) the evidence did not establish an immediate threat to health or safety. The trial court determined that the construction of the temporary Westport station was an “emergency measure” under § 22a-lc because this project was specifically authorized by the declaration of emergency issued by the deputy commissioner of transportation on August 26,1986. The commissioner of transportation is authorized to declare the existence of an “emergency condition” under General Statutes § 13b-26 (f) and had previously delegated to his deputy the authority to sign any instrument which the commissioner was himself authorized to sign.

The plaintiff maintains that the trial court was in error in ruling that § 13b-26 (f) authorized the declaration of an emergency in this case. The statute confers such authority upon the commissioner of transportation in the event of “an emergency condition . . . which demands immediate attention to insure the safety of the traveling public . . . .” The increase of traffic because of the removal of tolls does not, according to the plaintiff, fall within the intended scope of “emergency condition.” The trial court found, however, that, in the year between the closing of the toll stations and the time of trial, traffic on Interstate Highway 95 had increased by “a factor of at least 20%” and that accidents had also “increased markedly.” An expert witness for the plaintiff, Richard Carpenter, executive director of the South Western Regional Planning Agency, testified that conditions on the highway constituted “a crisis situation.” In the absence of any challenge to the factual accuracy of this record, which sustains the trial court’s ruling, the plaintiff cannot prevail on this issue.

The record also defeats the plaintiffs contention that the trial court erred in concluding that the department of transportation had undertaken emergency measures “in response to an immediate threat to public health and safety.” The trial court found immediacy in the unforeseen increased risk of truck accidents associated with the increase in the use of Interstate Highway 95 after the removal of tolls. The court found operator impairment or truck defects to be a “threat to public . . . safety.” Again, this finding is supported by testimony offered by a witness for the plaintiff. When Martha S. Hauhuth, first selectwoman of the town of Westport, was asked whether she believed “that traffic conditions on the Connecticut Turnpike pose an immediate threat to the public health and safety,” she responded: “Immediate and that has been present for a long time.” Taking into account the understanding that the Westport station was a temporary measure to respond to a perceived crisis while long term solutions were under consideration, we cannot fault the trial court’s fact-bound determination that the defendants’ actions fell within the exemption of § 22a-lc.

There is no error.

In this opinion the other justices concurred.

       The defendants are: the state of Connecticut; William A. O’Neill, the governor of the state of Connecticut; J. William Bums, the transportation commissioner of the state of Connecticut; the cities of Norwalk and Stamford; and the towns of Darien and Greenwich. The last four defendants were joined in the complaint because the plaintiff alleged, they “have a substantial interest” in the outcome of the litigation “by virtue of their consideration as alternate sites” for the weighing station.

       “[General Statutes] Sec. 22a-lc. actions affecting environment defined. Actions which may significantly affect the environment are defined for the purposes of section 22a-lb as individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state’s land, water, air, historic structures and landmarks as defined in section 10-321a, or other environmental resources, or could serve short term to the disadvantage of long term environmental goals. For the purposes of section 22a-lb, actions shall include but not be limited to new projects and programs of state agencies and new projects supported by state contracts and grants, but shall not include (1) emergency measures undertaken in response to an immediate threat to public health or safety; or (2) activities in which state agency participation is ministerial in nature, involving no exercise of discretion on the part of the state department, institution or agency.”

       General Statutes § 13b-26 (f) provides: “(1) Whenever a state of emergency, as a result of a disaster, exists in the state or any part of the state, and is so declared to be under the provisions of any federal law or state statute, and the state highway system becomes damaged as a result of such disaster, or (2) whenever the commissioner declares that an emergency condition exists on any highway in the state which demands immediate attention to insure the safety of the traveling public, whether or not such highway is damaged, the commissioner may, notwithstanding any other provision of the statutes, employ, in any manner, such assistance as he may require to restore said highway system to a condition which will provide safe travel or to correct the emergency condition so declared by the commissioner. Any declaration issued pursuant to this subdivision may be disapproved within twenty-four hours of the issuance of such declaration by a majority vote of the transportation accountability board established pursuant to section 13b-79m. Any such disapproval shall become effective upon filing by the board of notice of such disapproval with the office of the secretary of the state.”

       The deputy commissioner’s emergency declaration provided in relevant part: “Pursuant to Governor William A. O’Neill’s declaration on Friday, August 22,1986 that due to the numerous fatal accidents in recent months, a state of emergency exists on Connecticut highways f, the] Governor has directed that a series of steps are to be taken to improve highway safety and specifically to reduce truck related accidents.
      “Actions to be taken by this Department to achieve this goal include, but are not limited to, the installation of signing and the construction of a temporary truck weighing station on 1-95 in the Town of Westport.
      “Therefore, I am approving the employment of such assistance as may be required to expedite this work and restore the highways of the State of Connecticut to a safe condition.”

       The trial court found: “Trucks carrying toxic chemicals in both solid and liquid form regularly use Connecticut roads and highways. The internal combustion engines in those trucks are fueled by various hydrocarbon liquids. Both said chemicals and said liquids occasionally spill or leak onto our roads and highways. The cargo may be in a tank or in barrels or drums. The court must infer that in some manner some, if not all, of the liquids and chemicals leaked and spilled is released into the atmosphere or washed into our streams, rivers, ponds, lakes, swamps and, possibly, aquifers. This is so without this station, its sand pile and its containment tank. To reduce the risk of such spills and leaks the station has been constructed and is being operated. The operation of this station will not increase the number or severity of leaks and spills.”

       In the nomenclature of environmental law, the department of transportation should have prepared, in advance of construction, either an environmental impact evaluation (EIE) or a finding of no significant impact (FONSI). See General Statutes § 22a-lb. The trial court used the term EIS, environmental impact statement, synonymously with the term EIE.

         The regulations of Connecticut state agencies, § 22a-la-l (2) provides: “Action means an individual activity or a sequence of planned activities initiated or proposed to be undertaken by an agency or agencies, or funded in whole or in part by the state. Actions include, but are not limited to, capital improvements, alterations, repairs, or additions to the real property of the state; acquisition of real property for the purpose of capital improvements; lease/purchase agreements; grants-in-aid or financial assistance for housing, business, industry, restoration or demonstration projects; or other proposed activity for which an agency exercises judgment or discretion as to the propriety of that action.”

       The regulations of Connecticut state agencies, § 22a-la-7 (b) provides: “An environmental impact evaluation shall be prepared as close as possible to the time an agency proposes an action. The evaluation shall be prepared early enough so that it can practically serve as an important contribution to the decision-making process and shall not be used to rationalize or justify decisions already made. Preparation of an environmental impact evaluation shall not prevent an agency from conducting contemporaneous engineering, economic, feasibility and other studies which do not otherwise commit the agency to commence or engage in such action or limit the choice of reasonable alternatives.”