author: SULLIVAN, C. J.

text:
    IN RE MICHAEL S.

    (SC 16556)
    Sullivan, O. J., and Borden, Katz, Palmer and Vertefeuille, Js.
    Argued September 25
    officially released November 27, 2001

      David T. Grudberg, with whom were Michael Sherman and Jason Throne, for the appellant (respondent).

      SusannE. Gill, senior assistant state’s attorney, with whom was Jonathan C. Benedict, state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SULLIVAN, C. J.

The dispositive issue in this appeal is whether an order transferring jurisdiction from the juvenile matters division of the trial court to the regular criminal docket of the Superior Court is an appealable final judgment. We conclude that it is not. Accordingly, we dismiss the appeal.

The record reveals the following relevant facts and procedural history. On January 19, 2000, the respondent, Michael S., was arrested and charged with the October 30,1975 murder of Martha Moxley. The respondent, who was thirty-nine years old at the time of his arrest, had been fifteen years old at the time of the alleged murder. Because the respondent had been a juvenile at the time of the alleged murder, he was charged as a delinquent in the juvenile matters division of the trial court.

Pursuant to General Statutes (Rev. to 1975) § 17-60a, the state requested that the respondent be transferred to the regular criminal docket of the trial court. That statute provides that the juvenile matters division may transfer to the jurisdiction of the regular criminal docket of the Superior Court a child referred to it for the commission of murder, provided that it “has found, after a hearing, that there is reasonable cause to believe that (1) the child has committed the act for which he is charged and (2) there is no state institution designed for the care and treatment of children to which said court may commit such child which is suitable for his care or treatment or (3) the safety of the community requires that the child continue under restraint for a period extending beyond his majority and (4) the facilities of the superior court provide a more effective setting for disposition of the case and the institutions to which said court may sentence a defendant are more suitable for the care or treatment of such child. ” General Statutes (Rev. to 1975) § 17-60a.

On June 20, 21 and 28, 2000, the juvenile matters division held a probable cause hearing limited to the issues of establishing the respondent’s age and whether there was probable cause to believe that he had committed the murder. On August 17, 2000, the court issued its decision, concluding that there was probable cause. It also ordered an investigation by the probation office pursuant to General Statutes (Rev. to 1975) § 17-66.

On June 28 and October 20,2000, the juvenile matters division held another hearing pursuant to § 17-60a, at which it heard evidence and arguments concerning (1) the second, third and fourth factors set forth in that statute and (2) the probation department’s investigation pursuant to § 17-66. The court issued its memorandum of decision on January 31, 2001, concluding that “there is no available or suitable state institution designed for the care and treatment of children to which the Juvenile Court could commit, the now forty year old, respondent that would be suitable for his care and treatment, should he be adjudicated delinquent for the murder of the victim.” Accordingly, the court ordered the respondent to be transferred to the jurisdiction of the regular criminal docket of the trial court.

The respondent thereafter appealed from the order of the juvenile matters division of the trial court to the Appellate Court. The state moved to dismiss the appeal for lack of a final judgment. The Appellate Court denied that motion without prejudice and ordered the parties to address in their briefs whether the transfer order of the juvenile division of the trial court was a final judgment. Thereafter, we granted the parties’ joint motion to transfer the case to this court.

The respondent claims on appeal that: (1) pursuant to Public Acts 1986, No. 86-185, § 2 (P.A. 86-185), he has a statutory right to appeal the transfer order; and (2) the juvenile matters division improperly found that the statutory criteria for transfer had been met. We conclude that the transfer order was not an appealable final judgment. Accordingly, we do not reach the respondent’s second claim.

It is well established that “[t]he right of appeal exists only by virtue of statutory authority. In re Judicial Inquiry No. 85-01, 221 Conn. 625, 633, 605 A.2d 545 (1992), citing State v. Audet, 170 Conn. 337, 342, 365 A.2d 1082 (1976). Generally, appellate courts in this state do not have jurisdiction to entertain appeals not taken from final judgments. See General Statutes § 52-263; State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The lack of a final judgment is a jurisdictional defect that mandates dismissal. Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997). A judgment is considered final if the rights of the parties are concluded so that further proceedings cannot affect them .... Goodson v. State, 228 Conn. 106, 112, 635 A.2d 285 (1993), on appeal after remand, 232 Conn. 175, 653 A.2d 177 (1995), quoting Monroe v. Monroe, 177 Conn. 173, 176, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).” (Internal quotation marks omitted.) Stern v. Allied Van Lines, Inc., 246 Conn. 170, 174, 717 A.2d 195 (1998).

The appeal provisions for juvenile proceedings are set forth at General Statutes § 46b-142 (b). That statute provides in relevant part that “[t]he Department of Children and Famihes, or any party at interest aggrieved by any final judgment or order of the court, may appeal to the Appellate Court in accordance with the provisions of section 52-263.”

In In re Juvenile Appeal (85-AB), 195 Conn. 303, 488 A.2d 778 (1985), this court considered whether an order of the juvenile matters division transferring the case to the regular criminal docket pursuant to General Statutes (Rev. to 1981) § 46b-126 was a final judgment for the purposes of appeal. We first noted that, in a criminal case, the final judgment is ordinarily the imposition of sentence, which had not yet occurred. Id., 307. We then concluded that a transfer order did not fall into either of the exceptions to the requirement for a final judgment set forth in State v. Curcio, supra, 191 Conn. 31. In re Juvenile Appeal (85-AB), supra, 307, 314. Accordingly, we concluded that the transfer order was not a final judgment. Id., 306. Two justices dissented. Id., 314 {Healey, J., dissenting); id., 319 {Parskey, J., dissenting).

In the year following this court’s decision in In re Juvenile Appeal (85-AB), supra, 195 Conn. 303, the legislature amended General Statutes (Rev. to 1985) §§ 46b-126 and 46b-127. The amendment added to both statutes a provision that “[a]n order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal.” P.A. 86-185, §§ 1 and 2. Thereafter, that language was deleted from § 46b-127 by statutory amendment. See Public Acts, Spec. Sess., July, 1994, No. 94-2, § 6 (Spec. Sess. P.A. 94-2, § 6).

The respondent argues that P.A. 86-185, § 2, was enacted in response to this court’s decision in In re Juvenile Appeal (85-AB), supra, 195 Conn. 303, and was intended to clarify the original intent of General Statutes (Rev. to 1985) § 46b-127. He contends that P.A. 86-185, § 2, therefore, should be applied retroactively to him. See Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 667-70, 692 A.2d 803 (1997) (legislation that is intended to clarify existing law, rather than create new law, is applied retroactively). We disagree.

“In determining the effect of a subsequent statutory amendment on earlier legislation, we are guided by well defined principles of statutory interpretation. We recognize the usual presumption that, in enacting a statute, the legislature intended a change in existing law. . . . This presumption, however, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. ... In determining the intended effect of a later enactment on earlier legislation, two questions must be asked. First, was the act intended to clarify existing law or to change it? Second, if the act was intended to make a change, was the change intended to operate retroactively?” (Internal quotation marks omitted.) Id., 667. “To determine whether an act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent.” (Internal quotation marks omitted.) Id., 668.

We agree with the respondent that P.A. 86-185, § 2, was enacted in response to our decision in In re Juvenile Appeal (85-AB), supra, 195 Conn. 303. In a hearing on the proposed legislation before the judiciary committee, Raphael Podolsky of the Center for Advocacy and Research testified that the legislation addressed a “problem [that] arises from a recent [S]upreme [C]ourt case in 1985 that says you can’t take an appeal if the [S]uperior [C]ourt . . . moves a child . . . from the juvenile docket to the regular docket.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1986 Sess., pp. 826-27. He further testified that “the reason that [the transfer order] needs to be appealable earlier is because what you lose is . . . the confidentiality of the juvenile court system and you lose the right to have children segregated from adults. So that if you can’t take the appeal at that point, that appeal will forever be lost. It was a 3 to 2 decision of the [S]upreme [C]ourt interpreting the existing statute. This Bill, in effect, adopts the opinion of the two rather than the opinion of the three.” Id., p. 827, remarks of Podolsky. “It is now well settled that testimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation. . . . This is because legislation is a puiposive act . . . and, therefore, identifying the particular problem that the legislature sought to resolve helps to identify the purpose or purposes for which the legislature used the language in question.” (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 804, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). We conclude, therefore, that P.A. 86-185, § § 1 and 2, was intended to overrule our decision in In re Juvenile Appeal (85-AB), supra, 303.

The fact that P.A. 86-185, § 2, was intended to overrule In re Juvenile Appeal (85-AB), supra, 195 Conn. 303, however, “is insufficient to overcome the presumption against retroactive applicability; indeed, it sheds little, if any, light on whether the legislature intended for the amendment to be applied retroactively. The mere fact that the legislature changes the language of a statutory provision in response to a judicial decision interpreting that provision does not mean that the legislature necessarily intended that the amendatory language be retroactive.” Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 720, 714 A.2d 1209 (1998). In the cases wherein this court has held that a statutory amendment had been intended to be clarifying and, therefore, should be applied retroactively, the pertinent legislative history has provided “uncontroverted support . . . for the conclusion that the legislature considered the amendatory language to be a declar ation of the legislature’s original intent rather than a change in the existing statute.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 721. The legislative history of P.A. 86-185, § 2, contains no indication that the legislature enacted that provision to clarify, rather than to change, the existing law.

Furthermore, this court previously has held that the “provision for a direct appeal ... where no such appeal previously existed, constitutes a substantive change in the law and is not [a] procedural change . . . .” In re Judicial Inquiry No. 85-01, supra, 221 Conn. 632. Ordinarily, “a statute which . . . brings about changes in substantive rights is not subject to retroactive application. ” In re Daniel H., 237 Conn. 364, 373, 678 A.2d 462 (1996).

Finally, we note that the underlying substantive purposes of P.A. 86-185, § 2, were to protect the privacy of juveniles and to ensure that they were not incarcerated with adults during pretrial and trial proceedings. As the state points out, the only effect of retroactive application of the amendment would be to allow persons who, like the respondent, are charged with committing murder as juveniles before 1986 to appeal directly from transfer orders. None of those persons is now a juvenile. Retroactive application of the amendment, therefore, would entail all of the “delays and disruptions attendant upon intermediate appeals”; (internal quotation marks omitted) In re Juvenile Appeal (85-AB), supra, 195 Conn. 309; without advancing the underlying purpose of the amendment.

Accordingly, we conclude that the transfer order in the present case was not an appealable final judgment.

The appeal is dismissed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1975) § 17-60a provides: “The juvenile court shall have the authority to transfer to the jurisdiction of the superior court any child referred to it for the commission of a murder, provided any such murder was committed after such child attained the age of fourteen years. No such transfer shall be valid unless prior thereto the court has caused a complete investigation to be made as provided in section 17-66 and has found, after a hearing, that there is reasonable cause to believe that (1) the child has committed the act for which he is charged and (2) there is no state institution designed for the care and treatment of children to which said court may commit such child which is suitable for his care or treatment or (3) the safety of the community requires that the child continue under restraint for a period extending beyond his majority and (4) the facilities of the superior court provide a more effective setting for disposition of the case and the institutions to which said court may sentence a defendant are more suitable for the care or treatment of such child.” Unless otherwise specified, all references in this opinion to § 17-60a are to that statute as revised to 1975.

       General Statutes (Rev. to 1975) § 17-66 provides: “Prior to the disposition of the case of any child found to be delinquent, investigation shall be made of the facts as herein specified by the probation officer, and until such investigation has been completed and the results thereof placed before the judge, no disposition of the child’s case shall be made. Such investigation shall consist of an examination of the parentage and surroundings of the child, his age, habits, and history, and shall include also an inquiry into the home conditions, habits and character of his parents or guardians. Where a child is or legally should be in attendance at school, it shall further contain a report of the child’s school adjustment, which shall be furnished by the school officials to the court upon its request. The court shall, when it is found necessary to the disposition, cause a complete physical or mental examination, or both, to be made of the child by persons professionally qualified to do so.” Unless otherwise specified, all references in this opinion to § 17-66 are to that statute as revised to 1975.

       Public Acts 1986, No. 86-185, § 2, amended General Statutes (Rev. to 1985) § 46b-127 by adding a provision that “[a]n order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal.”

       General Statutes § 46b-142 (b) provides: “The Department, of Children and Families, or any party at interest aggrieved by any final judgment or order of the court, may appeal to the Appellate Court in accordance with the provisions of section 52-263. The clerk in charge of such juvenile matters shall forthwith, after notice of any appeal, prepare and file with the clerk of the Appellate Court the certified copy of the record of the case from which such appeal has been taken. The name of the child or youth involved in any such appeal shall not appear on the record of the appeal, and the records and papers of any juvenile case filed in the Appellate Court shall be open for inspection only to persons having a proper interest therein and upon order of the court."

        This statute has been amended several times since the date of the alleged murder in 1975. The retroactivity of the current version of the statute is not at issue in this appeal, and the parties have proceeded under that version.

       General Statutes (Rev. to 1981) § 46b-126 provides in relevant part: “(a) The court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class A felony, or for any serious juvenile offense if such child has previously been adjudicated a delinquent for a serious juvenile offense, provided such child has attained the age of fourteen at the time the alleged delinquent act was committed. . . .”

       Under Curdo, “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 191 Conn. 31.

       General Statutes (Rev. to 1985) § 46b-126 governs the transfer of a child charged with a class A felony or serious juvenile offense to the regular criminal docket.

       General Statutes (Rev. to 1985) § 46b-127 governs the transfer of a child charged with murder or repeated felonies to the regular criminal docket.

       The final judgment language continued to be included in § 46b-126 until the transfer provision was deleted from that statute in 1995. See Public Acts 1995, No. 95-225, § 39.

       In support of his argument to the contrary, the respondent quotes our statement in Edelstein v. Dept. of Public Health & Addiction Services, supra, 240 Conn. 669, that “[i]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act.” (Internal quotation marks omitted.) See id., citing Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 290, 679 A.2d 925 (1996), State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987), and 1A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 22.31, p. 279. In Edelstein and the cases cited therein, however, the legislative history of the amendment under review provided independent support for this court’s conclusion that the amendment under review was intended to clarify, rather than to change, the law. To the extent that the language cited by the respondent suggests that the fact that an amendment occurred soon after a court’s interpretation of the original act is, in itself, sufficient to show that the amendment was intended to be clarifying legislation, that suggestion was explicitly rejected in Colonial Penn Ins. Co. v. Bryant, supra, 245 Conn. 720, wherein we concluded that that fact was insufficient to overcome the presumption against retroactive application.

       We note that the problem presented by aging juveniles was recognized by. the legislature when it enacted Spec. Sess. P.A. 94-2, § 6, deleting the final judgment language from § 46b-127. During debate on the proposed legislation, Senator George Jepsen stated that the ability to appeal from a transfer order “has been the focus of much of the problems associated with Juvenile Court actions because by the time an appeal is taken, the juvenile is no longer a juvenile.” 37 S. Proc., Pt. 10, July 13, 1994, Spec. Sess., p. 3630. Representative Edward C. Graziani stated that “when you lake an appeal [from a transfer order], you can extend the period of time before a resolution is done. The child is typically over 16 [by the time the appeal is decided], so the whole issue is moot. Therefore, the state’s advocates do not proceed to try to even attempt under our existing law to get a transfer because the law is really defective. [Under t]his new law . . . there is no appeal. You cannot appeal, so you cannot stop the clock when the system goes forward, so the child doesn’t become 16 before justice is followed through.” 37 H.R. Proc., Pt. 27, July 13, 1994 Spec. Sess., p. 9955.


source: Caselaw Access Project

author: MCDONALD, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RASHEEN GIRAUD
    (SC 16016)
    McDonald, C. J., and Borden, Norcott, Sullivan and Vertefeuille, Js.

      Argued January 11
    officially released November 27, 2001

      Tracey M. Lane, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (state).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation in this panel is authorized by General Statutes § 51-198 (c).
      The listing of justices reflects their seniority on this court as of the date of oral argument.

   Opinion

MCDONALD, C. J.

The defendant appeals from ajudgment of conviction, rendered after a jury verdict of guilty, of the crimes of murder, felony murder, robbery in the first degree, larceny in the second degree, and kidnapping in the first degree. The defendant claims that the trial court improperly failed to grant a defense witness immunity from prosecution, and that the trial court improperly found that that defense witness properly had invoked his fifth amendment right to remain silent. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At about 2 a.m. on November 26, 1995, the defendant, Rasheen Giraud, observed the victim, Corey Gamble, pull up in a car to use the telephone at a telephone booth at a Hartford gas station. The defendant approached the victim, asking for a ride to Charter Oak Terrace. Subsequently, the defendant called his companion, Cleve Ward, over to the telephone booth and told Ward that they had a ride. The defendant and Ward entered the car, the defendant in the front passenger seat and Ward in the backseat on the passenger side. The defendant then directed the victim to the boarded-up Rice Heights housing complex. There, the defendant pulled out a gun, put it to the victim’s head and ordered him out of the car. The defendant took the victim to the back of the car and ordered him to remove his clothes. After the victim had removed his clothes, the defendant ordered him to a grassy area and forced him to his knees. The defendant then fired two gunshots at the victim, killing him. The defendant gathered the victim’s clothing and placed it in the backseat of the car. Then the defendant drove the car from Rice Heights to Edwards Street, where he lived.

Later in the morning of November 26, 1995, Hartford police officers were directed to the parking lot at the rear of a building where they discovered the body of the victim, who was wearing only socks. Thereafter, the police interviewed the victim’s mother, who told the police that in the early morning hours of November 26, she had asked her son to move a car that she had rented, a blue 1995 Pontiac Grand Am, from the front of her apartment building. She told police that this was the last time she had seen the victim.

The police then began searching for the car that the victim’s mother had rented. At approximately 9:58 p.m. on November 27, 1995, Hartford police observed the car at a gas station in Hartford. The police pulled the car over a short time later. The defendant was driving the car and was wearing boots and a leather coat that had belonged to the victim. In the pocket of the coat was the victim’s electronic organizer. The police then obtained a search warrant for the defendant’s apartment, and there recovered more of the victim’s belongings: a pair of pants, a black leather belt that went with the coat and a set of keys.

The defendant was charged with murder, felony murder, robbery in the first degree, larceny in the second degree, robbery involving an occupied motor vehicle and kidnapping in the first degree. After a jury trial, in June, 1998, the defendant was found guilty on all counts. The trial court, Barry, J., sua sponte, vacated the verdict with respect to the charge of robbery involving an occupied motor vehicle and rendered judgment of guilty on the remaining charges, sentencing the defendant to eighty-five years imprisonment, ten of which are nonsuspendable and nonreduceable. The defendant appealed to the Appellate Court and, pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c), we transferred the appeal to this court.

I

The defendant claims that the trial court improperly failed to grant a defense witness immunity from prosecution. We disagree.

At the trial, the defendant called Dennis Connolly as a defense witness. Before Connolly was sworn, the defendant moved that the state be compelled to grant Connolly immunity “relative to the testimony of Mr. Connolly with the exception [of] any perjury committed by him . . . .” The request did not distinguish between perjury committed before Connolly was granted immunity and perjury committed by him when testifying after such a grant of immunity. Immunity, of course, may not be “ ‘a license to lie’ ” while giving immunized testimony. United States v. Apfelbaum, 445 U.S. 115, 124, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980).

In order to consider this claim, we examine the record before the trial court. The defendant told the court that Connolly had testified at the probable cause hearing as a state’s witness and had been given immunity by the state. The defendant contended that, because “nothing ha[d] changed,” the state should be required to grant Connolly “the same immunity” as a witness for the defense as it had granted to him as a witness for the state. Defense counsel stated he did not “have any case law to present,” was “not sure if even any case law exists,” but because of the circumstances the same immunity should be granted at the trial.

The state responded that Connolly had been given immunity at the probable cause hearing for making a false statement, a class A misdemeanor as to which the statute of limitations had, at the time of the trial, expired. Defense counsel did not dispute this claim. The court thereupon denied the defendant’s request.

The defendant now argues in this court that we should empower trial courts to compel the state to grant immunity to defense witnesses in certain circumstances. The defendant acknowledges that no such rule now exists in Connecticut. State v. McIver, 201 Conn. 559, 566-67, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Simms, 170 Conn. 206, 211, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); State v. Reis, 33 Conn. App. 521, 526-27, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). The defendant argues, however, that this court should adopt a rule similar to that adopted by the United States Court of Appeals for the Second Circuit in United States v. Burns, 684 F.2d 1066 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823, 74 L. Ed. 2d 1019 (1983). See United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999). We recently recognized that some courts, such as the Second Circuit in Bums, have held that under certain circumstances the federal constitution might require the immunization of a defense witness. We previously declined, however, to decide the merits of the theories of those cases in the absence of circumstances that would give rise to their application. See State v. Holmes, 257 Conn. 248, 254-55, 777 A.2d 627 (2001). We do so again in the present case.

The defendant did not bring Bums to the attention of the trial court, nor did he set forth before the trial court any circumstances required to invoke Bums. Under Bums, “[t]o sustain a requirement that use immunity be granted, a court must find that: (1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and (2) the witness’ testimony will be material, exculpatory and not cumulative and [3] is not obtainable from any other source.” United States v. Burns, supra, 684 F.2d 1077. The requirements of Bums present a very difficult burden for a defendant to meet. “[Although our test for requiring the government to grant use immunity has been in place for at least eight years, we have yet to be presented with a case in which the defendant gets over the first hurdle, let alone succeeds entirely.” United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1992).

The defendant’s perfunctory statement that “nothing ha[d] changed” did not meet the Bums requirements. The defendant did not establish any discriminatory use of immunity by the state. Connolly’s “invocation of the fifth amendment was not the result of a discriminatory use of immunity by the [state], nor of any other prosecutorial overreaching. In fact, it seemed to be solely the result of [the witness’] own willingness to change his story.” Id. We conclude, therefore, again in the words of the Second Circuit, that the defendant “cannot vault the first hurdle of the Bums . . . test . . . .” Id. Accordingly, we decline, as we did in Holmes, to consider the claim for defense witness immunity in the absence of the circumstances that might give rise to such a claim.

Moreover, the defendant asked that the trial court accord Connolly “the same immunity” as a defense witness that he had received as a state’s witness. The immunity provided at the probable cause hearing was for making a false statement, an offense for which the statute of limitations barred prosecution at the time of trial. It therefore would have been meaningless to grant the request.

II

The defendant also claims that the trial court improperly found that Connolly’s invocation of his fifth amendment right against self-incrimination was valid. The defendant contends that there was no possibility that Connolly’s answers could have subjected him to prosecution and that the immunity granted at the probable cause hearing continued at trial. We disagree.

We again review the record before the trial court. After the trial court denied the request for immunity, the defendant called Connolly to the witness stand. Accompanied by his own counsel, Connolly invoked the privilege against self-incrimination. The defendant objected, claiming that Connolly’s “only exposure . . . would be as to false statements.” He argued that the charge was a misdemeanor and that the statute of limitations had ran regarding false statement and, therefore, that “exposure would be nonexistent . . . .” Defense counsel then stated that it was “not clear” to him what Connolly’s “exposure or what his potential incrimination might be . . . .” When the court remarked that it did not “understand that from you or our previous discussions,” defense counsel replied that if Connolly’s “concern is perjury then I guess there would be exposure there . . . .” Defense counsel then reminded the court that his request for immunity did not “encompass perjury.”

The state responded that the prior grant of immunity at the probable cause hearing was “limited to false statement” and that Connolly was still exposed to perjury charges for his prior testimony at the probable cause hearing. The state argued that Connolly was exposed as to his testimony at the probable cause hearing and potential perjury if he testified falsely at the trial. The state pointed out that the statute of limitations as to perjury arising from testimony at the 1996 probable cause hearing had not run. The defendant did not reply to this argument.

The court then upheld Connolly’s invocation of the right against self-incrimination. Immediately thereafter, by agreement, the defendant and the state introduced Connolly’s police statement and the transcript of his testimony at the probable cause hearing. Those exhibits were contradictory as to whether Connolly had seen the defendant with the victim early on the morning of the killing.

The standard for determining whether to permit invocation of the privilege against self-incrimination is well established. To reject the invocation it must “be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have [a] tendency to incriminate” the witness. (Emphasis in original; internal quotation marks omitted.) State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986), citing State v. Simms, supra, 170 Conn. 209. The right to the privilege “does not depend upon the likelihood of prosecution but upon the possibility of prosecution.” State v. Williams, supra, 319.

The trial court was told that Connolly had received immunity from prosecution for making a false statement to the police when called as a state’s witness at the probable cause hearing. The state’s attorney argued at the trial that, although the statute of limitations would bar prosecution for making an earlier false statement, Connolly’s testimony at the probable cause hearing still could subject him to prosecution for perjury. Defense counsel had conceded that Connolly could face exposure to a perjury prosecution. From this, the court could have inferred that Connolly was now being called to testify as to his prior testimony at the probable cause hearing. It was apparent on the record, therefore, that Connolly faced the possibility of perjury charges arising out of his probable cause hearing testimony and that his trial testimony might incriminate him. Connolly would have been “well within his rights to refuse to testify at the . . . trial, given the real danger that truthful answers would reveal that he committed perjury” at the probable cause hearing. United States v. DeSalvo, 26 F.3d 1216, 1222 (2d Cir. 1994), citing United States v. Housand, 550 F.2d 818, 823 (2d Cir. 1977).

Here the trial court was faced with the defendant’s objection to the invocation of the privilege against self-incrimination because there could be no incrimination. At the same time, however, the defendant conceded that there could be incrimination for perjury. In light of this concession, the trial court properly found Connolly’s invocation of the privilege valid. It is well established law that we will not review trial actions induced by the party challenging the ruling on appeal. See State v. Turner, 252 Conn. 714, 728-29, 751 A.2d 372 (2000).

The defendant also argues that Connolly’s probable cause hearing immunity continued at the trial. The defendant did not make this argument before the trial court and did not give the trial court any facts supporting such a claim. Accordingly, the claim was not properly preserved. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Moreover, the record is clear that immunity was granted at the probable cause hearing only as to Connolly’s December 8, 1995 sworn statement to the police and concerned the crime of making a false statement to the police. Both the trial judge and the state made it clear at the probable cause hearing that the immunity offered to Connolly did not and could not apply if Connolly perjured himself at the hearing. The state’s attorney stated at the probable cause hearing: “[Connolly’s attorney] has represented to me [that] his client’s concern [is] that he would not testify unless given the opportunity to be free from prosecution for any, what he perceives as, errors in the statement. I have no objection to granting that. I did indicate to [Connolly’s attorney], however, that there would be no immunity, obviously, from any perjury . . . .” The probable cause hearing. . judge stated, “[t]he record should note [that] the immunity, obviously, does not extend to perjury.”

Accordingly, we conclude that the trial court properly found that Connolly validly invoked his fifth amendment privilege against self-incrimination.

The judgment is affirmed.

In this opinion the other justices concurred.

       Article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, provides in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . .”
      General Statutes § 54-46a (a) provides in relevant part: “No person charged by the state . . . shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. ...”

       General Statutes § 54-47a provides: “(a) Whenever in the judgment of the Chief State’s Attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence, any violation which is an offense under the provisions of title 22a, corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, fraud by a vendor of goods or services in the medical assistance program under Title XIX of the Social Security Act amendments of 1965, as amended, any violation of chapter 949c, or any other class A, B or C felony or unclassified felony punishable by a term of imprisonment in excess of five years for which the Chief State’s Attorney or state’s attorney demonstrates that he has no other means of obtaining sufficient information as to whether a crime has been committed or the identity of the person or persons who may have committed a crime, before a court or grand jury of this state or (2) in any investigation conducted by an investigatory grand jury as provided in sections 54-471) to 54-47g, inclusive, is necessary to the public interest, the Chief State’s Attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, malee application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.
      “(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.”

       General Statutes § 53a-157b provides: “(a) A person is guilty of false statement in the second degree when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.
      “(b) False statement in the second degree is a class A misdemeanor.”

       Later, defense counsel argued that the statute of limitations did bar prosecution for that offense. See part II of this opinion.

       On appeal, the defendant presents facts never presented to the trial court when it was asked to rule. We will adhere to reviewing only claims properly preserved in the trial court; see State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); in the absence, as here, of plain error or a showing that State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), applies.

       The trial court was required to rule before Connolly’s December 8,1995 statement, in which he identified a photograph of the defendant as the person with whom he saw the victim in the early morning of November 26, 1995, and his April, 1996 probable cause testimony repudiating that identification were introduced into evidence. See footnote 6 of this opinion.


text:
    VICTORIA SKINDZIER v. COMMISSIONER OF SOCIAL SERVICES
    (SC 16471)
    Sullivan, C. J., and Norcott, Palmer, Vertefeuille and Zarella, Js.

      Argued September 19
    officially released December 4, 2001

      Maite Barainca, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (defendant).

      Deborah J. Tedford, with whom was Daniel J. Krisch, for the appellee (substitute plaintiff).
   Opinion

SULLIVAN, C. J.

The dispositive issue in this case is whether the trial court properly concluded that the creation of a testamentary trust is not a disqualifying transfer of assets under governing medicaid law. The defendant, the commissioner of the department of social services (department), claims that the creation of such a trust is a disqualifying transfer of assets rendering the plaintiff, Victoria Skindzier, ineligible for medicaid benefits. The plaintiff claims that the trial court properly concluded that testamentary trusts are exempt from the law governing transfers of assets. We agree with the plaintiff and affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff, who suffered from diabetes and Alzheimer’s disease, was institutionalized in a nursing home from June, 1995, until her death on October 20, 2000. Her husband, Bernard Skindzier, knowing that he suffered from metastasized prostate cancer, executed a will on March 26, 1996. He died on May 20, 1996. Under the terms of his will, most of his property passed to the trustee of two trusts. The will required that the trustee pay the income from the trusts to the plaintiff during her lifetime and, upon her death, distribute the trust assets to various individuals. The plaintiffs income from Social Security, a pension and the trusts did not cover all of her medical care costs, thus rendering her “medically needy” under medicaid eligibility rules. Accordingly, on December 31, 1997, she applied to the department for medicaid assistance to cover the shortfall. On July 23, 1998, the department denied the application on the basis of an informal opinion from the office of the attorney general that the creation of the trusts constituted a disqualifying transfer of assets under the governing medicaid rules. The plaintiff requested an administrative hearing to contest the denial. A hearing was held on October 26, 1998, and on March 23,1999, the fair hearing officer issued a decision affirming the denial of benefits.

The plaintiff appealed to the Superior Court from the department’s denial of her application, and the trial court reversed the department’s decision. The court’s decision was based in part on its interpretation of 42 U.S.C. § 1396p (c) and (d).Title 42 of the United States Code, § 1396p (c) (1) (A), provides that if an individual disposes of assets for less than fair market value on or after the applicable “look-back” date, the individual may be ineligible for medicaid benefits for a specified period of time. Title 42 of the United States Code, § 1396p (c) (1) (B) (i), provides that “[t]he look-back date specified in this subparagraph is a date that is 36 months (or, in the case of payments from a, trust or portions of a trust that are treated as assets disposed of by the individual pursuant to paragraph [3] [A] [Hi] or [3] [B] [ii] of subsection [d] of this section, 60 months') before the date specified in clause (ii).” (Emphasis added.) Section 1396p (d) (2) (A) of title 42 of the United States Code provides that subsection (d) pertains only to trusts established “other than by will.” Reading these subsections together, the court concluded that the exemption of testamentary trusts from the provisions of subsection (d) also operated to exempt such trusts from the general transfer of assets provisions of subsection (c).

The trial court also noted that General Statutes § 45a-486, distinguishes between inter vivos trusts and testamentary trusts. That statute provides that an inter vivos trust established during the look-back period established by 42 U.S.C. § 1396p (c) may be dissolved by court order and the trust assets returned to the settlor. The court concluded that both Congress and the Connecticut legislature intended for testamentary trusts to be exempt from the law governing disqualifying transfers of assets. It further concluded that “application of the medicaid rules to [a] testamentary transfer ... is untenable absent federal preemption of this state’s law of wills.”

On appeal, the department claims that the trial court improperly interpreted 42 U.S.C. § 1396p (c) and (d) and argues that Congress intended for transfers by testamentary trust to be treated like other transfers of assets under 42 U.S.C. § 1396p (c). It further argues that the trial court improperly found that treating a testamentary trust as a disqualifying transfer of assets would constitute preemption of this state’s law of wills by federal law. The plaintiff claims that, to the contrary, the trial court properly interpreted the governing statutes and that the testamentary trusts created by the plaintiff’s husband did not disqualify her from receiving medicaid assistance. She also argues that subjecting testamentary trusts to transfer of assets rules would, in effect, constitute a mandate to provide for a spouse after death, contrary to this state’s law of wills, and would, therefore, involve federal preemption of state law. Finally, the plaintiff claims that the trial court improperly denied her request for attorney’s fees pursuant to General Statutes § 4-184a (b). We agree with the plaintiff that the trial court properly concluded that testamentaiy trusts are not subject to medicaid’s disqualifying transfer of assets rules. Accordingly, we need not consider whether a contrary interpretation would constitute federal preemption of state law. We also conclude that the trial court did not abuse its discretion in denying the plaintiffs request for attorney’s fees.

As a preliminary matter we set forth the standard of review. “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998). Whether a testamentary trust is a disqualifying transfer of assets under 42 U.S.C. § 1396p is a question of statutory interpretation that previously has not been subject to judicial scrutiny. Accordingly, our review is plenary.

“In matters of statutory interpretation, we are guided by well established principles, paramount among which is the principle that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 391.

“Our analysis begins with an overview of the medicaid program. The program, which was established in 1965 as Title XIX of the Social Security Act and is codified at 42 U.S.C. § 1396 et seq. (medicaid act), is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of, among other things, medically necessary nursing facility care. . . . The federal government shares the costs of medicaid with those states that elect to participate in the program, and, in return, the states are required to comply with requirements imposed by the medicaid act and by the secretary of the Department of Health and Human Services. . . . Specifically, participating states are required to ‘ “develop a plan, approved by the secretary of health and human services, containing reasonable standards ... for determining eligibility for and the extent of medical assistance” ’ to be provided. ... [S]ee . . . 42 U.S.C. § 1396a (a) (17).

“Connecticut has elected to participate in the medicaid program and has assigned to the department the task of administering the program. General Statutes § 17b-2. . . . Pursuant to General Statutes §§ 17b-262 and 17b-10, the department has developed Connecticut’s state medicaid plan and has promulgated regulations that govern its administration. See [Department of Social Services, Uniform Policy Manual (1993) (Uniform Policy Manual)].

“The medicaid act requires that a state’s medicaid plan make ‘medical assistance’ available to qualified individuals. 42 U.S.C. § 1396a (a) (10). ‘The term “medical assistance” means payment of part or all of the cost of . . . care and services . . . [including] nursing facility services . . . .’ 42 U.S.C. § 1396d (a) . . . . Participating states are required to provide coverage to certain groups and are given the option to extend coverage to various other groups. The line between mandatory and optional coverage primarily is drawn in 42 U.S.C. § 1396a (a) (10) (A): mandatory coverage is specified in 42 U.S.C. § 1396a (a) (10) (A) (i); and optional coverage is set forth in subsection (a) (10) (A) (ii). In medicaid parlance, individuals who qualify for medicaid benefits pursuant to those subsections are referred to as the ‘categorically needy’ because, in general, they are eligible for financial assistance under Titles IV-A (Aid to Families with Dependent Children) or XVI (Supplemental Security Income for the Aged, Blind, and Disabled) of the Social Security Act.

“Under the medicaid act, states have an additional option of providing medical assistance to the ‘medically needy’-—persons who, like the plaintiff, lack the ability to pay for their medical expenses but do not qualify as ‘categorically needy’ solely because their income exceeds the income eligibility requirements of the applicable categorical assistance program. . . . The ‘medically needy’ become eligible for medicaid, if the state elects to cover them, by incurring medical expenses in an amount sufficient to reduce their incomes below the income eligibility level set by the state in its medicaid plan. See 42 U.S.C. § 1396a (a) (17) (in determining eligibility, state must take ‘costs . . . incurred for medical care’ into account); see also 42 C.F.R. § 435.301. ‘Only when they “spend down” the amount by which their income exceeds that level, are [medically needy persons] in roughly the same position as [categorically needy] persons . . . [because then] any further expenditures for medical expenses . . . would have to come from funds required for basic necessities.’ . . . Connecticut has chosen to cover the medically needy. . . .

“The medicaid act, furthermore, requires participating states to set reasonable standards for assessing an individual’s income and resources in determining eligibility for, and the extent of, medical assistance under the program. 42 U.S.C. § 1396a (a) (17) .... The resources standard set forth in Connecticut’s state medicaid plan for categorically needy and medically needy individuals is $1600. General Statutes §§ 17b-264 and 17b-80 (c); Uniform Policy Manual, supra, §4005.10 .... Consequently, a person who has ‘available’ resources; see 42 U.S.C. § 1396a (a) (17) (B); in excess of $1600 is not eligible to receive benefits under the Connecticut medicaid program even though the person’s medical expenses cause his or her income to fall below the income eligibility standard.

“Prior to 1986, however, the ‘availability’ requirement of 42 U.S.C. § 1396a (a) (17) (B) provided a loophole by which individuals anticipating the need for expensive long-term nursing facility care could impoverish themselves and qualify for medicaid assistance while preserving their resources for their heirs. An individual could establish an irrevocable trust that permitted, but did not require, the trustee to disburse the income, but not the principal, of the trust to the individual. The trustee would pay the income from the trust to the grantor until the medicaid transfer ‘look back period’ had expired and the grantor’s transfer of assets to the trust, therefore, would no longer affect his eligibility for medicaid benefits. Thereafter, the trustee would exercise his discretion to withhold payments of trust income from the grantor. As a result, neither the trust principal nor the trust income would be resources ‘available’ to the grantor within the meaning of § 1396a (a) (17) (B), and the grantor would qualify for medicaid assistance. See H.R. Rep. No. 99-265, pt. 1, pp. 71-72 (1985) ....

“Congress, however, tightened the ‘availability’ loophole provided by § 1396a (a) (17) (B) of the medicaid act by enacting the medicaid qualifying trust provisions set forth at 42 U.S.C. § 1396a (k) (1988). See H.R. Rep. No. 99-265, pt. 1, pp. 71-72 (1985) .... ‘[A] “medicaid qualifying trust” is a trust . . . established (other than by will) by an individual . . . under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.' ... 42 U.S.C. § 1396a (k) (2) (1988). The amount of a medicaid qualifying trust considered ‘available’ to an applicant for purposes of determining eligibility for medicaid benefits ‘is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor. 42 U.S.C. § 1396a (k) (1) (1988) .... Thus, pursuant to § 1396a (k) (1), all possible distributions that a medicaid applicant is capable of receiving from a trust (i.e., trust assets that actually are distributed to the grantor and trust assets that could be, but are not, distributed to the grantor) are considered in determining eligibility for medicaid benefits.” (Citations omitted; emphasis in original.) Ahern v. Thomas, 248 Conn. 708, 713-17, 733 A.2d 756 (1999).

The provisions set forth at 42 U.S.C. § 1396p (d), governing treatment of trust assets, “were enacted in 1993 in an effort to further tighten the ‘availability’ loophole of 42 U.S.C. § 1396a (a) (17).” Id., 720. Section 1396p (d) (3) (A) (i), pertaining to revocable trusts, provides that “the corpus of the trust shall be considered resources available to the individual . . . .” See also Uniform Policy Manual, supra, § 3028.11 (B). Section 1396p (d) (3) (B) (ii), pertaining to irrevocable trusts, provides in relevant part that “any portion of the trust from which ... no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust . . . to be assets disposed by the individual for purposes of subsection (c) . . . .” See also Uniform Policy Manual, supra, § 3028.11 (C). Section 1396p (d) applies to trusts established after August 11,1993. See Ahern v. Thomas, supra, 248 Conn. 721. It does not, however, apply to trusts established by will. See 42 U.S.C. § 1396p (d) (2) (A) (subsection [d] applies to trust established “other than by will”).

Disqualifying transfers of assets are generally governed by 42 U.S.C. § 1396p (c). Section 1396p (c) (1) (A) provides that a state’s medicaid plan “must provide that if an institutionalized individual or the spouse of such an individual . . . disposes of assets for less than fair market value on or after the look-back date specified in subparagraph (B) (i), the individual is ineligible for medical assistance for services described in subparagraph (C) (i) . . . during the period beginning on the date specified in subparagraph (D) and equal to the number of months specified in subparagraph (E).” See also Uniform Policy Manual, supra, § 3028.05. Section 1396p (c) (1) (B) (i) provides that “[t]he look-back date specified in this subparagraph is a date that is 36 months (or, in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to paragraph [3] [A] [iii] or [3] [B] [ii] of subsection [d] of this section, 60 months) before the date specified in clause (ii).”

The department argues that the exemption for testamentary trusts provided by 42 U.S.C. § 1396p (d) (2) (A) applies only to subsection (d), and that testamentary trusts are not exempt from the general transfer of assets provisions of subsection (c). We disagree.

As we previously have noted in this opinion, 42 U.S.C. § 1396p (d) (3) (B) (ii) provides that “any portion of the [irrevocable] trust from which ... no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust ... to be assets disposed by the individual for purposes of subsection (c) . . . Section 1396p (d) (2) (A), however, provides that subsection (d) applies only to trusts established “other than by will.” Thus, subsection (d) specifically provides that the establishment of a trust may constitute a disqualifying disposal of assets, and also specifically exempts testamentary trusts from that provision. We cannot conclude that, having exempted testamentary trusts from the specific transfer of assets rules pertaining to trusts, Congress intended for the more general transfer of assets provisions of subsection (c) to apply. See Sullivan v. State, 189 Conn. 550, 555-56 n.7, 457 A.2d 304 (1983) (“when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls” [internal quotation marks omitted]).

Our conclusion that testamentary trusts are not governed by the general transfer of assets provisions of 42 U.S.C. § 1396p (c) is bolstered by the federal health care financing administration’s implementing regulations dealing with the establishment of trusts. Section 3259.6 (G) of the State Medicaid Manual, “a publication of the Department of Health and Human Services that explains to the states how the health care financing administration applies statutory and regulatory provisions in administering the medicaid program”; Ahern v. Thomas, supra, 248 Conn. 720-21; provides in relevant part: “When a nonexcluded asset is placed in a trust, a transfer of assets for less than fair market value generally takes place. An individual placing an asset in a trust generally gives up ownership of the asset to the trust. If the individual does not receive fair compensation in return, you can impose a penalty under the transfer of assets provisions. However, the trust provisions contain specific requirements for treatment of assets placed in trusts. . . . [T]hese requirements deal with counting assets placed in trusts as available income, available resources, and/or a transfer of assets for less than fair market value, depending on the circumstances of the particular trust. Application of the trust provisions, along with imposition of a penalty for the transfer of the assets into the trust, could result in the individual being penalized twice for actions involving the same asset. To avoid such a double penalty, application of one provision must take precedence over application of the other provision. Because the trust provisions are more specific and detailed in their requirements for dealing with funds placed in a trust, the trust provisions are given precedence in dealing with assets placed in trusts. Deal with assets placed in trusts exclusively under the trust provisions (which, in some instances, require that trust assets be treated as a transfer of assets for less than fair market value).” (Emphasis added.) State Medicaid Manual § 3259.6 (G).

The department argues, however, that because subsection (c) specifically exempts certain trusts from its disqualifying transfer of assets provisions, the fact that a specific exemption for testamentary trusts is not included in that section indicates an intent to subject them to the transfer provisions. We disagree. Rather, we conclude that Congress did not need to include a specific exemption for testamentary trusts in subsection (c) because it already specifically had exempted them from subsection (d), which section subjects trusts to the disqualifying transfer of assets rules of subsection (c) in the first instance.

Nor are we persuaded by the department’s argument in its brief that, “while testamentary trusts are treated more favorably than inter-vivos trusts in terms of deeming their funds available and countable, [all] transfers by will or otherwise are treated the same.” First, we note that, as it applies to testamentary trusts, this interpretation simply is contradicted by the plain language of § 1396p (d) (2) (A), which, as we have noted, specifically exempts testamentary trusts from all of the provisions of subsection (d), including the disposal of assets provisions of § 1396p (d) (3) (B) (ii). We also note that, although technically distinct, the availability provisions and the transfer of assets provisions have essentially identical functions, namely, to ensure that certain assets that, in fact, are not available to an individual will nevertheless be considered as if they were available in determining the individual’s medicaid eligibility. We can perceive no reason for Congress to have exempted testamentary trusts from the rule that trust assets that could have been, but were not, paid to an individual are to be considered available to the individual, but not to have exempted them from the rule that when trust assets cannot be paid out under any circumstances, they are to be considered assets disposed of by the individual.

Finally, the department argues that the exemption of testamentary trusts from the transfer of assets provisions is contrary to the underlying purpose of the transfer of assets mies, namely, to ensure that the medicaid program provides necessary medical care only to people who otherwise would be too poor to afford it. In support of this argument, it relies on Bezzini v. Dept. of Social Services, 49 Conn. App. 432, 715 A.2d 791 (1998). In Bezzini, the Appellate Court considered “whether a transfer of assets from the plaintiffs spouse to beneficiaries other than the plaintiff, taking effect upon the death of the spouse, pursuant to the terms of a revocable inter vivos trust, renderfed] the plaintiff ineligible for Title XIX medicaid benefits.” Id., 434. The plaintiffs husband, who had been diagnosed with prostate cancer, had established a revocable inter vivos trust and, in the month before his death, had transferred all of his and the plaintiffs assets into the trust. Pursuant to the terms of the trust, upon his death, the assets were distributed to their two sons. Several months after her husband’s death, the plaintiff entered a nursing home and, while in the nursing home, applied for medicaid assistance. Id., 434-35. The department determined that the plaintiff was subject to an ineligibility period of thirty months from the date of her husband’s death because the distribution of the tmst assets at that time had been a disqualifying transfer of assets. Id., 435. The plaintiff appealed from that decision to the Superior Court, which affirmed the decision; id.; and the plaintiff appealed to the Appellate Court.

Because the trust under consideration in Bezzini had been established before August 11,1993, the Appellate Court applied the relevant provisions of Title XIX as they existed before the 1993 amendments and not, as the parties in this case appear to have assumed, 42 U.S.C. § 1396p (d). See Ahern v. Thomas, supra, 248 Conn. 721 (§ 1396p [d] applies only to trusts established after August 11, 1993). Specifically, the court applied the general transfer of assets provisions set forth at 42 U.S.C. § 1396p (c) (1) (1988). See Bezzini v. Dept. of Social Services, supra, 49 Conn. App. 438.

The court concluded that, under 42 U.S.C. § 1396p (c) (1) (1988), the distribution of the assets in the inter vivos trust at the time of the plaintiffs husband’s death constituted a disqualifying transfer of assets. Id., 442. The court determined that, before his death, when the plaintiffs husband could have revoked the trust, the trust assets could have been “deemed” to the plaintiff under the governing regulations. Id., 440, citing Dept, of Social Services, Uniform Policy Manual (1992) § 4025.65 (A). It further determined that, because title to the assets passed irrevocably at the time of death, a disqualifying transfer occurred at that time. Bezzini v. Dept. of Social Services, supra, 49 Conn. App. 440. The court reasoned that exempting such trusts from the transfer of assets rules would run counter to “the legislative concern that the medicaid program not be used as an estate planning tool. The medicaid program would be at fiscal risk if individuals were permitted to preserve assets for their heirs while receiving medicaid benefits from the state.” (Internal quotation marks omitted.) Id., 441-42, citing Forsyth v. Rowe, 226 Conn. 818, 828-29, 629 A.2d 379 (1993) (settlement trust established by applicant's conservator is medicaid qualifying trust).

The court also noted that the creation of a revocable trust was not a testamentary act, which it appears to have assumed would not be subject to the transfer of assets rules. Bezzini v. Dept. of Social Services, supra, 49 Conn. App. 442-43. Although the department relies on Bezzini for the proposition that medicaid should not be used as an estate planning tool, it argues that the court’s assumption in Bezzini that dispositions by will, including testamentary trusts, are not subject to transfer of assets rules was both dicta and incorrect.

We conclude that the Appellate Court’s conclusion in Bezzini that inter vivos trusts that become irrevocable because of the death of the settlor are subject to the general disqualifying transfer of assets rules does not support the department’s position in this case. That conclusion was based on the Appellate Court’s interpretation of the provisions of the 1988 amendments, specifically, 42 U.S.C. § 1396p (c) (1) (1988), which are inapplicable here. In the absence of a specific statute providing that the establishment of an irrevocable inter vivos trust may be treated as a transfer of assets, the Appellate Court relied on the legislative policy underlying the transfer of assets rules to reach its conclusion that such trusts are subject to general transfer of assets rules. That conclusion, however, was codified in the 1993 revisions to the medicaid eligibility rules, specifically, 42 U.S.C. § 1396p (d) (3) (B) (ii). As we already have concluded, testamentary trusts are specifically exempted from that provision. See 42 U.S.C. § 1396p (d) (2) (A). Accordingly, even if we were to agree with the department that, contrary to the court’s statement in Bezzini, dispositions by will and, specifically, testamentary trusts are, under the 1988 amendments, subject to general transfer of assets rules, and that the exemption of testamentary trusts from those rules in the 1993 revisions created a loophole whereby an individual may preserve assets for his or her heirs at the expense of the medicaid program, we have no authority to impose a different rule simply because, in our opinion, it would better implement the legislative policy of minimizing the fiscal risk to that program. “[This] court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will.” (Internal quotation marks omitted.) Fernandes v. Rodriguez, 255 Conn. 47, 58, 761 A.2d 1283 (2000).

Because we conclude that testamentary trusts are exempt from the transfer of assets rules of 42 U.S.C. § 1396p (c) and (d), we need not consider whether subjecting testamentary trusts to those provisions would constitute a preemption of Connecticut’s law of wills by federal law.

Turning to the plaintiffs claim for attorney’s fees, we note that the plaintiff has not filed a cross appeal from the trial court’s ruling that she was not entitled to such fees. Nevertheless, because the record is adequate for review, we will consider this claim. General Statutes § 4-184a (b) provides in relevant part that “[i]n any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 . . . the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if such prevailing party files a request for an award of reasonable fees and expenses within thirty days of the issuance of the court’s decision and the court determines that the action of the agency was undertaken without any substantial justification.” Accordingly, we review the trial court’s decision for an abuse of discretion.

“[W]e construe the phrase ‘without any substantial justification’ to mean entirely unreasonable or without any reasonable basis in law or fact. In our view, this demanding standard furthers the legislature’s intent by striking a balance between compensating aggrieved litigants for unjustified agency action, and ensuring that not all agency actions that are subject to judicial reversal for legal error result in an award of attorney’s fees.” Burinskas v. Dept. of Social Services, 240 Conn. 141, 156, 691 A.2d 586 (1997). “Although we conclude that the department’s practice [of treating the establishment of a testamentary trust as a disqualifying transfer of assets] is contrary to the relevant legislation, it does not follow necessarily that its action was unreasonable or without any basis in law or fact. The practice was based on the department’s good faith interpretation of the legislative mandate to [minimize the fiscal risk to the medicaid program]. It was not entirely unreasonable for the department to conclude that the law might permit such measures.” Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, supra, 244 Conn. 401. Accordingly, we conclude that the trial court was within its discretion in denying the plaintiffs request for attorney’s fees.

The judgment is affirmed.

In this opinion the other justices concurred.

       Victoria Skindzier died on October 17,2000. Thereafter, this court granted the motion of Michelle Gianni, administratrix of the estate of Victoria Skindzier, to be substituted as the party plaintiff. For convenience, however, in this opinion we refer to Victoria Skindzier as the plaintiff.

       The trial court found that $675,000 had been distributed to the trustee of the two trusts. The plaintiff represented in her brief, however, that $785,730.70 had been distributed to the trustee. Our review of the Probate Court’s administration account of Bernard Skindzier’s estate, which was included in the return of record to the trial court, indicates that the trustee received $675,000 in advance distributions, $110,730.70 in “assets on hand,” and $7758.02 in “income on hand for distribution,” for a total of $793,488.72. The difference between this amount and the amount represented by the plaintiff is the $7758.02 in “income on hand for distribution.” The precise amount distributed to the trusts is not relevant, however, to the issues raised on appeal.

       “Medically needy” persons lack the ability to pay for their medical expenses but do not qualify as “categorically needy” under the medicaid program because their income exceeds the income eligibility requirements of the medicaid program. See Ahern v. Thomas, 248 Conn. 708, 715, 733 A.2d 756 (1999).

       General Statutes § 45a-486 provides in relevant part: “(a) The provisions of this section shall apply to an inter vivos trust (1) established or funded on or after October 1,1992; (2) established or funded within the same period of time prior to application for public assistance or Medicaid as is specified in Section 1917(c) of the Social Security Act or in a waiver approved by the Secretary of Health and Human Services concerning the disposal of assets for less than fair market value; and (3) in which the settlor or the settlor’s spouse is a beneficiary.
      “(b) Upon the application of the Department of Social Services, the Superior Court shall terminate an inter vivos trust established by a person or the person’s spouse when the person or the person’s spouse becomes an applicant for or recipient of public assistance or Medicaid. The Superior Court shall order that the principal and any undistributed income shall be distributed to the settlor of the trust. This section shall not apply if the settlor, the settlor’s spouse, a conservator or other legal representative of the settlor or the settlor’s spouse, or any other person having a beneficial interest in the trust, establishes by clear and convincing evidence that not one of the principal purposes of the trust was the current or future qualification of the settlor or the settlor’s spouse for benefits under Title XIX of the Social Security Act (42 USC 1396 et seq.). . . .”

       General Statutes § 17b-2 provides in relevant part: “The Department of Social Services is designated as the state agency for the administration of ... (8) the Medicaid program pursuant to Title XIX of the Social Security Act . . . .”

       General Statutes § 17b-262 provides in relevant part: “The Commissioner of Social Services may make such regulations as are necessary to administer the medical assistance program. . .
      General Statutes § 17b-10 (a) provides in relevant part: “The Department of Social Services shall prepare and routinely update state medical services and public assistance manuals and general assistance policy manuals . . . containing all departmental policy regulations and substantive procedure.
      Section 17b-10-l of the Regulations of Connecticut St ate Agencies provides in relevant part: “Pursuant to section 17b-10 of the Connecticut General Statutes, the Department of Social Services has prepared, and routinely updates, a state eligibility Policy Manual containing all departmental policy regulations and substantive procedures which affect the rights or procedures available to the public. In particular, the Policy Manual outlines the policies and procedures used by the department to implement and enforce federal and state laws for all of the programs which it administers. . .

       See 42 U.S.C. § 601 et seq.

       See 42 U.S.C. § 1381 et seq

       See 42 U.S.C. § 1396a (a) (10) (C); 42 C.F.R. §§ 435.300 through 435.350.

       “Contrary to what the term implies, a finding of a medicaid qualifying trust makes one ineligible for medicaid benefits. The term refers to a trust that is deemed to have been created in order to qualify for medicaid benefits and, for policy reasons, is considered an available asset to an applicant.” (Internal quotation marks omitted.) Ahern v. Thomas, 248 Conn. 708, 717 n.15, 733 A.2d 756 (1999).

       Title 42 of the United States Code, § 1396p (c) (2) (B), provides in relevantpart that the ineligibility provisions of subsection (c) (1) do not apply to the extent that assets “(iii) were transferred to ... a trust (including a trust described in subsection [d] [4] of this section) established solely for the benefit of, the individual’s child described in subparagraph (A) (ii) (II), or “(iv) were transferred to a trust (including a trust described in subsection [d] [4] of this section) established solely for the benefit of an individual under 65 years of age who is disabled (as defined in section 1382c [a] [3] of this title) . . .

       Title 42 of the United States Code, § 1396p (d) (3) (A), provides in relevant part: “In the case of a revocable trust—
      “(i) the corpus of the trust shall be considered resources available to the individual . . . .”
      Title 42 of the United States Code, § 1396p (d) (3) (B), provides in relevant part: “In the case of an irrevocable trust—
      “(i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual . . . .”

       The department argues that Congress subjected inter vivos trusts to harsher availability rules than testamentary trusts because of the historic abuse of inter vivos trusts by individuals attempting to qualify themselves or their spouses for medicaid. This argument proves too much, however, as it would also explain why Congress exempted testamentary trusts from the transfer of assets rules.

       The trust was established on March 11, 1993. See Bezzini v. Dept. of Social Services, supra, 49 Conn. App. 434.

       Title 42 of the United States Code, § 1396p (c) (1) (1988), provides in relevant part: “[T]he State plan must provide for a period of ineligibility for nursing facility services ... in the case of an institutionalized individual . . . who, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual . . . or . . . the date the individual applies for such assistance while an institutionalized individual, disposed of resources for less than fair market value. . . .”
      We note that the court did not apply, or even refer to, the medicaid qualifying trust provisions set forth at 42 U.S.C. § 1396a (k) (1988). That section, unlike § 1396p (d) (3) (B) (ii), does not specifically provide that the establishment of a trust may be treated as a disqualifying transfer of assets when the assets are completely unavailable to the settlor or the settlor’s spouse, but provides only that “the amounts from the trust deemed available to [the individual establishing the trust, or the individual’s spouse] ... is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to [the individual, or the individual’s spouse], assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the [individual, or the individual’s spouse].” The court did state, however, that “a medicaid qualifying trust is not present in this case.” Bezzini v. Dept. of Social Services, supra, 49 Conn. App. 442. In reaching this conclusion, the court may have relied on 42 U.S.C. § 1396a (k) (2) (1988), which defines “medicaid qualifying trust” as “a trust . . . established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.” The plaintiff in Bezzini was not a beneficiary of the trust under review in that case. The court also noted that the department’s regulations pertaining to inter vivos trusts provided “further support” for its conclusion. See id., 441 n.2, citing Uniform Policy Manual, supra, § 4030.80 (B) (2) (providing that funds in inter vivos trusted created on or after October 1, 1992, but prior to August 11, 1993, are considered available to applicant for medicaid if applicant or applicant’s spouse is settlor of trust, applicant or applicant’s spouse is beneficiary of trust and applicant applies for cash or medicaid within thirty months after establishment of trust).

       The plaintiff concedes that the basis for that assumption is unclear, but speculates that the Appellate Court may have relied on one or more of the provisions of 42 U.S.C. § 1396p (d). As we have noted, however, that statute was not applicable to the trust under consideration in Bezzini. Furthermore, although 42 U.S.C. § 1396a (k) (1988), governing “medicaid qualifying trusts,” applies only to trusts established “other than by will,” the Appellate Court concluded that the trust under review in that case was not a “medicaid qualifying trust.” Bezzini v. Dept. of Social Services, supra, 49 Conn. App. 442. We need not consider in this case, however, whether the court’s assumption was either unfounded or dicta, because, regardless of whether testamentary trusts are subject to the general transfer of assets provisions of 42 U.S.C. § 1396p (c) (1) (1988), for the reasons previously discussed, we have concluded that they are not subject to the general transfer of assets provisions enacted in 1993 and codified at § 1396p (c). We also need not consider in this case whether the court in Bezzini properly concluded that the trust in that case was a valid inter vivos trust rather than a trust testamentary in effect.

       Indeed, if, is possible that Congress recognized that it was creating a loophole in the disqualifying transfer of assets provision by exempting testamentary trusts, but simply did not want medicaid rules to interfere with an individual’s estate planning objectives, even if those objectives include the preservation of assets for heirs at the expense of the medicaid program. The plaintiff argues that the disposal of assets by will is subject to a different rale than the disposal of assets during a lifetime because there is no requirement under state law that an individual provide for a surviving spouse in a will and a surviving spouse would have no recourse if disinheritance were to be considered a disqualifying transfer of assets. We are not persuaded, however, that that analysis adequately accounts for the exemption of test amentary trusts from transfer of assets rules. We note that an individual is also free to make a gift, or otherwise dispose of his own assets during his lifetime, depriving his spouse of any share in the property. See Dalia v. Lawrence, 226 Conn. 51, 61, 627 A.2d 392 (1993) (individual may make valid gift or otherwise dispose of property to third party during lifetime without consent of spouse). Such transfers may also impoverish the spouse against the spouse’s will and may also be irrevocable, but there is no dispute that they are subject to disqualifying transfer of assets rales.