author: Callahan, J.

text:
    State of Connecticut v. Michael Woods
    (15169)
    Peters, C. J., and Callahan, Borden, Norcott and Palmer, Js.
    Argued April 20—decision
    released July 18, 1995

      Shelley R. Sadin, for the appellant (defendant).

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne,
      state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Michael Woods, was convicted after a jury trial of the crime of escape in the first degree in violation of General Statutes (Rev. to 1991) § 53a-169 (a) (2). The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The sole issue in this appeal is whether the trial court properly instructed the jury that the defendant, a convicted felon who had been transferred to a “community residence” to complete his sentence, could be found guilty of escape in the first degree solely for repeatedly failing to report to his supervising parole officer, without also finding that he actually had absconded from his designated residence. We conclude that the trial court’s instruction was improper.

The jury reasonably could have found the following facts. On February 4, 1992, pursuant to his authority under General Statutes § 18-100 (e), the commissioner of correction transferred the defendant from prison to a “community residence” to complete a three year term of imprisonment for burglary in the third degree that had begun on December 4, 1991. On the day of his transfer, the defendant met with his supervising parole officer, John Kelly, and reviewed and signed a standard written list of “Conditions of Community Residence.” Those conditions included reporting to his supervising officer as directed. During their initial meeting on February 4, 1992, Kelly informed the defendant that he was under “intensive supervision” and would be required to report to Kelly’s office at 40 Fairfield Avenue, Bridgeport, every Tuesday and Thursday. A further condition provided that the defendant would be guilty of escape in the first degree “if [he] escape[d] from a community residence to which [he had been] transferred pursuant to subsection (e) of section 18-100.”

The defendant adhered to his reporting schedule for approximately two months. On April 9,1992, however, he failed to report as scheduled. Thereafter he failed to report at all.

Kelly made several attempts to ascertain the defendant’s whereabouts. He telephoned the defendant’s brother on two occasions. During the second of these calls, Kelly asked the defendant’s brother to tell the defendant to report on April 28. The defendant failed to do so. On May 8, Kelly sent a letter to the defendant at 117 Asylum Street. That letter subsequently was returned undelivered. On May 13, Kelly visited 117 Asylum Street and concluded from a visual inspection of the outside of the premises and a conversation with an unidentified neighbor that the defendant no longer resided there. On May 27, Kelly contacted the defendant’s brother and concluded from his conversation with the brother that the defendant’s whereabouts were unknown to his family at that time.

Kelly then had the defendant’s case reviewed by a parole supervisor, who signed an application for an arrest warrant for the defendant on June 8,1992. The defendant was served with the warrant and arrested on August 29, 1992. The defendant subsequently was convicted by a jury and sentenced by the court to a three year term of incarceration, to be served consecutively to his underlying sentence for burglary in the third degree.

The defendant’s sole claim on appeal is that the trial court improperly instructed the jury that it could find him guilty of escape in the first degree based solely on his repeated failures to report to his supervising officer. We agree.

The court instructed the jury that “there are several elements which you must consider in arriving at a conclusion of whether or not the defendant is guilty of violating section 53a-169, subsection (a) (2). The first element is the escape. The second element is that at the time of the escape the defendant was a sentenced prisoner subject to the custody of the Commissioner of Correction, and third, whether the defendant did escape by failing to report to his parole officer on more than one occasion. The fourth element being whether the defendant elected community residence that had been approved by his parole officer.” (Emphasis added.) The court repeated this instruction in substantially the same language twice in response to two inquiries from the jury asking for clarification of the definition of the word “escape.”

The defendant’s principal disagreement with the court’s instruction centers on what the court termed the third “element” of the crime of escape. In instructing the jury on how to answer the question of “whether the defendant did escape by failing to report to his parole officer on more than one occasion,” the trial court correctly explained that “multiple failures to report to one’s supervising parole officer are not, in and of themselves, an escape.”

The court, however, then instructed the jury as follows: “It is for you, the jury, to decide whether the multiple failures to report to his supervising authority in this supervised home release setting constitute absconding from supervision or escape. ... In considering this, you should consider whether repeated failures to report as scheduled would reasonably support an inference of present or imminent custodial irregularity. The defendant . . . was required to report . . . twice per week on Tuesday and Thursday of each week. . . . Now, both the third—that is the element, the failing— the repeated failures to report, and the fourth element, which is the unauthorized change of residence, do not have—both do not have to be proven to constitute escape. Either standing alone, if you find either exist in accordance with the instructions I give you—have given you, are sufficient to constitute escape. . . . [I]f you find . . . that the defendant did, in fact, fail to report to his parole officer on several occasions, you must then determine whether those failures to report constitute an escape or an absconding from supervision. If you find all those elements, then you should find the defendant guilty.” (Emphasis added.) The defendant thereafter excepted to the jury charge, arguing that failures to report, by themselves, do not constitute an escape and that “absconding from supervision” is not a proper definition of escape. (Emphasis added.)

“To determine whether an error in the charge to the jury exists, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); see State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982); State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980). In appeals not involving a constitutional question the court must determine whether it is reasonably probable that the jury [was] misled; State v. Avis, 209 Conn. 290, 305, 551 A.2d 26 (1988); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, supra [268]; but in appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. State v. Corchado, supra [660]; State v. Williams, supra [268]; see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). A failure to provide adequate instructions on the elements of a crime, because of its potential for violation of the defendant’s due process rights; State v. Fleming, supra, 269; State v. Williams, supra, 268-69; invokes the reasonably possible standard of review. In this case, because the alleged error relates to the elements of the crime charged, reversal of the defendant’s conviction and a new trial are mandated if, in the context of the charge as a whole, it is reasonably possible that the jury was misled. State v. Fleming, supra, 269; State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).” (Internal quotation marks omitted.) State v. Grullon, 212 Conn. 195, 204-205, 562 A.2d 481 (1989). Under the facts and circumstances of this case, we conclude that a reasonable possibility exists that the jury was misled as to the conduct that constitutes an escape under § 53a-169 (a) (2).

“Interpretation of § 53a-169 (a) (2) must begin with the proposition that penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); Nowak v. Nowak, 175 Conn. 112, 125, 394 A.2d 716 (1978); see also State v. Mattioli, 210 Conn. 573, 579, 556 A.2d 584 (1989); State v. Champagne, 206 Conn. 421, 430, 538 A.2d 193 (1988). ... The rule that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise; General Statutes § 1-1 (a); State v. Mattioli, supra, 579; also guides our interpretive inquiry.” (Internal quotation marks omitted.) State v. Lubus, 216 Conn. 402, 406-407, 581 A.2d 1045 (1990). Reliance upon the ordinary meaning of the term “escape,” moreover, finds support in the 1969 debates surrounding the enactment of the state penal code, wherein the escape provisions were described as having “the customary definitions and penalty.” 13 H.R. Proc., Pt. 11, 1969 Sess., p. 5046.

“In this case, neither the defendant nor the state argues that the word ‘escape’ in § 53a-169 (a) (2) is unclear or ambiguous, nor does the fact that opposing counsel contend for different meanings support such a characterization. See Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981). Furthermore, the text of the statute nowhere indicates that the legislature intended to assign to the word anything other than its ordinary meaning. Accordingly, in the absence of other statutory guidance, we may appropriately look to the meaning of the word as commonly expressed in the law and in dictionaries. Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).” State v. Lubus, supra, 216 Conn. 407.

This court previously has stated that “[t]he unifying overall theme of § 53a-169 is that an individual will risk punishment for ‘escape’ for an unauthorized departure from, or failure to return to, whatever may be designated as his place of incarceration or confinement.” (Emphasis added.) Id., 409. The nexus between escape and custody recognized in Lubus finds support in Black’s Law Dictionary (5th Ed. 1979), which defines “escape” as “[t]he departure or deliverance out of custody of a person who was lawfully imprisoned before he is entitled to his liberty by the process of law.”

Further support can be found in the New York penal code and the American Law Institute’s Model Penal Code, upon which our legislature relied when it revised the state penal code in 1969. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11. Both contain “escape” provisions that have custodial overtones. The New York Court of Appeals, interpreting the escape provisions of the New York penal code, understood escape to mean “ ‘to get away (as by flight or conscious effort): break away, get free or get clear (the prisoner escaped from prison) . . . .’’’(Citations omitted; emphasis in original.) People v. Hutchinson, 56 N.Y.2d 868, 870, 438 N.E.2d 1109, 453 N.Y.S.2d 394 (1982). Under the Model Penal Code, a person commits the crime of “escape” if he “unlawfully removes himself from official detention or fails to return to official detention following [a] temporary leave granted for a specific purpose . . . .” II A.L.I., Model Penal Code and Commentaries (1962) § 242.6.

In State v. Lubus, supra, 216 Conn. 409, after reciting the above definitions of “escape,” we concluded that “[a] single failure to report [by an inmate released to an approved community residence under § 18-100 (e)] cannot . . . reasonably be construed as an unauthorized departure or failure to return.” (Emphasis added.) We specifically did not decide in Lubus “whether, at some juncture, repeated failures to report as scheduled would reasonably support an inference of present or imminent custodial irregularity and thus evidence a violation of § 53a-169 (a) (2).” (Emphasis added.) Id. Lubus did not, however, hold that repeated failures to report could alone support an escape conviction without proof beyond a reasonable doubt of actual departure from the defendant’s designated place of confinement. Our task, then, is to determine whether, strictly construed, the ordinary meaning of the criminal prohibition against “escapes from ... [a] community residence” in § 53a-169 (a) (2) encompasses the repeated failures to report to a supervisor without a finding that the defendant absconded from his designated place of confinement, in this case, his approved residence.

The jury was charged that it could find the defendant guilty if it found only that he had repeatedly failed to report. Such an instruction improperly equates failure to report with an escape. While failure to report may be evidence that the defendant has left his designated place of confinement, it is not enough, standing alone, to prove an unauthorized physical departure from the designated place of confinement. Such a departure is necessary for there to be an “escape” within the meaning of § 53a-169 (a) (2). Evidence that the supervising officer telephoned the defendant, sent letters and visited the designated residence might well support a finding of physical departure. Although we recognize that such evidence existed in this case, the reasonable possibility that the jury was misled to convict the defendant solely because of his failure to report requires a reversal of his conviction.

Viewing the charge as a whole, we are persuaded that it is reasonably possible that the jury was misled to believe that it could find the defendant guilty of escape in the first degree solely on the basis of his failure to report to his supervising officer as scheduled. We conclude, therefore, that the court’s charge to the jury did not fulfill its mandate to “be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.” (Internal quotation marks omitted.) State v. Williams, supra, 182 Conn. 269; Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1991) § 53a-169 provides in relevant part: “ESCAPE IN THE FIRST DEGREE: CLASS C FELONY, (a) A person is guilty of escape in the first degree . . . (2) if he escapes from any . . . community residence to which he was transferred pursuant to subsection (e) of section 18-100 . . . and he is in the custody of the commissioner of correction . . . .”
      General Statutes (Rev. to 1991) § 18-100 provides in relevant part: “work-release AND EDUCATION-RELEASE PROGRAMS. . . .
      “(e) If the commissioner of correction deems that the purposes of this section may thus be more effectively carried out, he may transfer any person from one correctional institution to another . . . or to an approved community residence with the concurrence of the warden, superintendent or person in charge of the facility to which said person is being transferred. Any inmate so transferred shall remain under the jurisdiction of said commissioner. Any inmate transferred to an approved community residence shall also be subject to specifically prescribed supervision by personnel of the department of correction until his definite or indeterminate sentence is completed.”
      Section 18-100 (e) was amended in 1993 to'eliminate the supervised home release program. Under current law, transfers may be made only to a public or private nonprofit halfway house, group home or mental health facility. General Statutes § 18-100 (e), as amended by Public Acts 1990, No. 90-261, §§ 2, 19, effective July 1, 1993.

       The defendant was initially transferred to the home of his brother at 775 Ryan Street, Bridgeport. On February 27, 1992, the defendant’s supervising parole officer, John Kelly, approved the defendant’s move from 775 Ryan Street to 117 Asylum Street, Bridgeport, where he was permitted to live on his own.

       The defendant was sentenced to five years incarceration, suspended after three years, with three years of probation. He was also sentenced to concurrent one year terms for violating General Statutes §§ 53a-173 (failure to appear) and 14-224 (b) (evading responsibility in operating a motor vehicle), and to a concurrent ninety day term for violating General Statutes § 14-215 (operating a motor vehicle without a valid license).

       That list provides: “I understand and agree to the following conditions:
      “CONDITION #1-1 agree that transfer to community release is at the discretion of the Community of Correction or designee.
      “CONDITION #2-1 agree that my transfer to community release is based upon the conclusion of the Commissioner of Correction that there is a reasonable probability that I will reside on community release without violating the law and that my transfer is not incompatible with the welfare of society. If for any reason, even for circumstances over which I have no control, this conclusion becomes no longer valid, then my transfer to community release will be revoked or modified accordingly.
      “CONDITION #3-1 agree that after transfer to community release, I am still an inmate and such transfer may be modified or revoked at any time at the discretion of the Commissioner of Correction or designee.
      “CONDITION #4-1 agree at any time I may be classified to any higher security level of confinement in a correction or designee.
      “CONDITION #5-1 agree the following conditions must be obeyed and even if I obey these conditions, I understand that I am not entitled to stay on community release and can have no expectations of staying on community release.
      “CONDITION #6-1 realize that I am still an inmate and am responsible to conforming to the rules of the Department of Corrections.
      “CONDITION #7-1 will abide by all conditions of my release. Failure can result in reincarceration and disciplinary sanctions.
      “CONDITION #8-1 will report as directed and follow the instructions of my supervising officer.
      “CONDITION #9-1 agree that I am guilty of Escape in the First Degree, if I escape from a community residence to which I was transferred pursuant to subsection (e) of section 18-100.
      “CONDITION #10-1 will obey all laws and fulfill all my legal obligations.
      “CONDITION #11-1 will notify my supervising officer within 24 hours if at any time I am arrested for any offense.
      “CONDITION #12-1 will maintain such gainful employment or other activity as approved by my supervising officer.
      “CONDITION #18-1 agree that the supervising officer has the right to visit my residence or place of employment at any reasonable time.
      “CONDITION #14-1 will notify my supervising officer within 24 hours of any changes in my place of residence, employment or marital status.
      “CONDITION #15-1 will not at any time have firearms, ammunition, or any other weapon in my possession or under my control.
      “CONDITION #16-1 will not leave the State of Connecticut without prior permission from my supervising officer.
      “CONDITION #17-1 waive extradition to the State of Connecticut from any jurisdiction in or out of the United States.
      “CONDITION #18-1 will not at any time use, or have in my possession or control, any illegal drug or narcotic.
      “CONDITION #19-1 will receive permission from my supervising officer prior to operating any motor vehicle and if granted permission to drive, I will possess a valid operator’s license and insurance.
      “CONDITION #20-1 will be responsible for all expenses, including medical expenses, if on supervised home release.
      “CONDITION #21-1 also agree to abide by the following conditions: Drug and alcohol treatment required.”

       Although § 18-100 (d) confers upon the commissioner of correction the authority to promulgate rules of conduct for persons transferred under § 18-100 (e), criminal enforcement of such rules may not include “conduct that the statute itself . . . does not expressly proscribe. Such an enlargement of penal sanctions exceeds the authority of the commissioner.” State v. Lubus, 216 Conn. 402, 411, 581 A.2d 1045 (1990).

       The first inquiry from the jury asked that the court “[p]lease supply the judge’s instruction—instructions as to the definition of the crime of escape,” and that it “[pjlease supply the judge’s instruction—instructions as to what was necessary for the—for a finding of guilty, and what was necessary for a finding of not guilty.” The second jury inquiry asked the court to reread the instructions that it had given in response to the first set of questions.

         In response to jury inquiries, the court twice more instructed the jury that either a failure to report or an unauthorized change of address would alone be sufficient to constitute escape.

       Subsequent to Lubus, the Appellate Court decided a case factually similar to the present case. In State v. Jemison, 35 Conn. App. 1, 2-5, 643 A.2d 1287 (1994), the defendant repeatedly failed to report to his supervising officer and there was substantial evidence of the fruitless attempts of the supervising officer to locate the defendant. The court instructed the jury that it could find the defendant guilty solely on the basis of his repeated failures to report to his supervising officer. Id., 5-6. The Appellate Court affirmed the conviction in Jemison on the ground that, under the facts of that case, “the defendant’s repeated failures to report as scheduled . . . reasonably support an inference of present or imminent custodial irregularity and thus evidence a violation of § 53a-169 (a) (2).” (Internal quotation marks omitted.) Id., 8-9.
      We agree with the defendant that to the extent that Jemison permits a conviction for escape to rest solely on a jury’s finding that the defendant repeatedly did not report to his supervising officer as scheduled, it must be overruled. As we stated in State v. Lubus, supra, 216 Conn. 409, Connecticut’s escape statutes encompass “unauthorized departure from, or failure to return to . . . [the inmate’s] place of inear aeration or confinement.” (Emphasis added.)

       For instance, one who is imprisoned who merely stays in his cell and refuses to report for roll call may not be criminally punished for escape because, although he has violated the rules of the department of correction, and may be subject to disciplinary measures in connection therewith, he has not breached the physical confines of his custody.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Town of Newtown v. Timothy R. E. Keeney, Commissioner of Environmental Protection
    (15027)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.

      Argued April 18
    Connecticut Supreme Courtreleased July 18, 1995

      David H. Wrinn, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Daniel F. Wolf, with whom was David L. Grogins, for the appellee (plaintiff).
   Berdon, J.

The dispositive issue in this appeal is whether the trial court improperly concluded that the commissioner of environmental protection had abused his discretion in rejecting a hearing officer’s recommendation and denying the town’s permit application to expand its landfill without remanding the matter for further proceedings in order to complete the record.

In 1989, the plaintiff, the town of Newtown (town), applied to the department of environmental protection (department) for a permit to expand its existing landfill. Hearings were held before a department hearing officer, who recommended in a proposed decision that the defendant, Timothy R. E. Keeney, the commissioner of environmental protection (commissioner), issue the permit. The commissioner rejected the proposed decision and denied the permit on the grounds that the town had neither conducted a hydrogeological study as required by § 22a-209-4 (b) (2) (A) (v) of the Regulations of Connecticut State Agencies nor demonstrated a need for the expansion as required by General Statutes § 22a-208d (a).

The town appealed from the decision of the commissioner to the trial court, which sustained the appeal and remanded the case to the commissioner with direction. The commissioner appealed from this judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court and remand the case with direction to dismiss the appeal.

The following facts are undisputed. On September 14,1989, the town applied to the department, pursuant to General Statutes § 22a-208a and § 22a-209-4 of the Regulations of Connecticut State Agencies, for a permit to expand vertically its municipal solid waste disposal area (landfill) located on Ethan Allen Road in Newtown. The expansion would allow the town to deposit an additional 409,000 cubic yards of solid waste, extending the landfill’s useful life by about ten years.

A public hearing was held by the department on February 14, 1990, pursuant to § 22a-208a (e). Upon application, the estate of F. Francis D’Addario (D’Addario estate), an adjacent landowner, was granted permission to participate as an intervenor. No opposition to the application was presented. At the conclusion of the hearing, the hearing officer found that, with the exception of a preliminary determination of need, the town’s application was complete and recommended the granting of the permit subject to several conditions. One of the conditions was that the town conduct a full hydrogeological study within ninety days of issuance of the permit in order to determine the extent and direction of any pollution leaching from the landfill into the Pootatuck River or into groundwater located on adjacent properties.

The hearing was continued pending the receipt by the town of a preliminary certificate of need pursuant to § 22a-208d. The town submitted to the department a letter dated April 12,1990, outlining the need for the landfill’s expansion. In January, 1991, the department issued a preliminary determination of need for the proposed landfill expansion, pursuant to § 22a-208d (b). The department also drafted a stipulated agreement containing the draft permit with conditions, including the need for a hydrogeological study. The draft agreement and permit were distributed both to the town and to the D’Addario estate.

The hearing was continued again until May 2,1991, at which time the D’Addario estate withdrew its support for the application of the town. The D’Addario estate asserted that the discharge of leachate from the landfill site was having a negative impact on both the groundwater and surface water quality. The hearing officer reopened the record of the proceeding in order to provide an opportunity for the D’Addario estate to present evidence and for the town to rebut the evidence presented. A public hearing to consider the intervenor’s evidence was held August 29, 1991, and continued through September, 1991. The D’Addario estate introduced evidence to demonstrate migration of pollution from the landfill into the waters of the Pootatuck River and onto adjoining properties. The town and department introduced evidence to refute the D’Addario estate’s allegations.

On February 25, 1992, the hearing officer issued a proposed decision to the commissioner, in which the hearing officer concluded: “A. The Town of Newtown has satisfactorily met its statutory burden under [General Statutes §] 22a-208a and Section 22a-209-4 [of the Regulations of Connecticut State Agencies] for a vertical expansion of its existing landfill. There is no evidence in the record to indicate that expansion of the landfill would cause pollution. The record clearly indicates that the intervenor has significantly failed to put on any substantial evidence to support its allegations that contaminants from the landfill are causing or will cause pollution to either its property, adjacent properties, or the Pootatuck River. B. It is further concluded that this proposal meets the solid waste disposal needs of the state and will not result in substantial excess disposal capacity.” (Emphasis in original.) The hearing officer also recommended that the commissioner issue the permit, as well as a final determination of need.

On June 19, 1992, the commissioner rejected the hearing officer’s proposed decision and denied the town’s application for a vertical expansion of its landfill on two grounds. First, the commissioner concluded that because the town had not submitted a comprehensive hydrogeological study as required by § 22a-209-4 (b) (2) (A) (v) of the regulations, the town had failed to meet its burden to prove that the landfill was not causing offsite pollution currently and that the proposed expansion would not cause pollution or exacerbate such pollution as may already have resulted from landfill operations. Second, the commissioner concluded that the town had failed to satisfy its burden to prove that the expansion was necessary to meet the state’s solid waste disposal needs, as required by § 22a-208d (a).

The town appealed to the trial court, claiming that the commissioner’s denial of the town’s application was illegal, arbitrary and an abuse of his discretion, given the record before the hearing officer and his recommendations. The town’s complaint specifically alleged that the commissioner’s denial of the town’s application was “made upon an error of law,” because, among other things, a hydrogeological study was not required by the regulations, the commissioner’s staff had made a preliminary determination of need for the landfill’s expansion, and § 22a-208d (a) did not place the burden of proof with regard to the issue of need upon the applicant.

The trial court held that “[t]he Commissioner’s ruling [was] directly contrary to the findings, conclusions and recommendations of the hearing officer to whom the matter was assigned, and to those of pertinent Department of Environmental Protection technical personnel, based upon over two years of public hearings, studies, tests and reports.” Although the trial court agreed with the commissioner that a hydrogeological study was required, it held that “[elemental fairness mandated that the Town be apprised of the Commissioner’s concern and be given the opportunity at a further hearing to address the same.” By failing to provide such opportunity, the court concluded that the commissioner had abused his discretion. The trial court also held that the town had satisfied its burden of proof with respect to need when the department made a preliminary determination of need, and that the town was not required after that date to present further evidence on the subject. The trial court remanded the case to the commissioner with direction that the town submit an “appropriate comprehensive hydrogeologic[al] study, as requested by the Commissioner,” that the record be reopened to consider the study results and that if these results were consistent with the findings and conclusions made by the hearing officer in the proposed final decision, that a permit should issue in accordance with that proposed final decision.

On appeal, the commissioner argues that the trial court failed to apply the proper standard of review in finding an abuse of discretion. We agree with the commissioner.

In Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993), we reaffirmed the well established principles that when “challenging an administrative agency action, the plaintiff has the burden of proof. . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision. . . . In reviewing [a department of environmental protection] decision made pursuant to the act, the reviewing court must sustain the [department’s] determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citations omitted; internal quotation marks omitted.) This “substantial evidence rule” is embodied in General Statutes § 4-183 © (5) and (6).

We apply this standard of review not to the decision of the hearing officer but, rather, to the decision of the commissioner, because he is the final decision maker. General Statutes §§ 22a-207 (1) and (2), 22a-208 (a) and 22a-208a; Regs., Conn. State Agencies § 22a-209-4. Indeed, the trial court recognized that the ultimate decision-making authority rested in the commissioner. The applicable regulations specify that the commissioner in his final decision “may affirm, modify, or reverse the proposed final decision, in whole or in part, or may remand to the hearing officer for further proceedings, including the taking of further evidence.” Regs., Conn. State Agencies § 22a-3a-6 (y) (3) (D).

Our focus is therefore on the commissioner’s findings, and whether there was substantial evidence in the record to support his denial of the permit on any ground. The commissioner based his decision on two grounds: (1) the lack of a hydrogeological study; and (2) the failure of the town to demonstrate need. Because we sustain the commissioner’s decision to deny the permit on the basis of the lack of a hydrogeological study, we need not address the commissioner’s second reason for such denial. See Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987) (“[t]he agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given”).

Section 22a-209-4 (b) (2) (A) (v) of the regulations requires that an applicant for a permit submit “hydrogeologic and geologic information including predictions of movement of and impact on surface and ground water, including water supply wells, from existing and proposed site activities, and the names and addresses of all landowners within the area of potentially impacted ground waters, detailed soil boring logs; details of monitor well construction and development, the method of testing and testing results.” The town was therefore on notice that it was required to submit a detailed hydrogeological study. As the applicant, the town bore this burden of proof throughout the entire proceedings; the burden did not shift to the department upon the rendering of a proposed decision by the hearing officer.

“An application will not be deemed complete until all information required by statutes or regulations or otherwise requested by the Commissioner have been submitted in proper form.” Regs., Conn. State Agencies § 22a-209-4 (b). As the trial court recognized, the question of offsite pollution “remained open” and an “appropriate comprehensive hydrogeologic study” was required. The hydrogeological study in this case was required for the commissioner to be able to satisfy his mandate to “examine all existing or proposed solid waste facilities and provide for their proper planning, design, construction, operation, monitoring, closure and postclosure maintenance in a manner which ensures against pollution of the waters of the state” in accordance with § 22a-208 (a). Because the study was not submitted and the commissioner, therefore, was not allowed to satisfy his mandate, he properly denied the town’s permit application.

The trial court held that, notwithstanding the town’s failure to submit the hydrogeological study, the commissioner could not reject the hearing officer’s recommendations without first providing the town with either an additional hearing or a remand to the hearing officer, in order to give the town an opportunity to submit an appropriate hydrogeological study. We disagree.

First, § 22a-3a-6 (y) (3) (D) of the Regulations of Connecticut State Agencies, upon which the trial court relied, does not require the commissioner to remand an incomplete application to the hearing officer so that additional evidence may be given. That section provides: “After the issuance of the proposed final decision, the filing of any exceptions and briefs, and presentation of any oral argument, the Commissioner shall issue a written final decision in accordance with section 4-180 of the General Statutes. In his final decision the Commissioner may affirm, modify, or reverse the proposed final decision, in whole or in part, or may remand to the hearing officer for further proceedings, including the taking of further evidence.” (Emphasis added.) The decision to remand to a hearing officer is discretionary.

Second, General Statutes § 4-179 (a), upon which the trial court also relied, does not require an additional hearing. That section provides: “When, in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record, the decision, if adverse to a party, shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render the final decision.” (Emphasis added.) There is no evidence before us that would support the trial court’s assumption that the commissioner considered matters outside of the record, or that the commissioner did not fully consider the record. Indeed, the commissioner’s final decision shows a careful reading of the record before him.

Finally, we disagree with the trial court’s finding that the town was not given an “opportunity to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, 207 Conn. 346, 355, 542 A.2d 672 (1988). This requirement was satisfied by the department’s provision of two separate hearing proceedings prior to the issuance of the hearing officer’s proposed final decision. The town was on notice throughout these proceedings that a complete hydrogeological study was required, and also that the regulations required such a study to be completed prior to the issuance of a permit. Without this study, the town’s application was deficient.

We conclude that, in light of the regulatory requirement for a comprehensive hydrogeological study as a prerequisite for the granting of a permit, the town’s failure to provide such a study serves as substantial evidence in support of the commissioner’s decision to deny the town’s permit application. Thus, the commissioner acted within his discretion when he denied the town’s permit application without providing a further hearing.

The judgment is reversed and the case is remanded with direction to dismiss the appeal.

In this opinion the other justices concurred.

       Section 22a-209-4 (b) of the Regulations of Connecticut State Agencies provides in pertinent part: “permit to construct. The information required to be in an application for a permit to construct shall depend upon the type of solid waste facility proposed. Such information shall be outlined in these regulations and further detailed in guidelines prepared by the Department. The information in the application must be sufficient to demonstrate the ability of the facility to comply with the requirements of these regulations. An application will not be deemed complete until all information required by statutes or regulations or otherwise requested by the Commissioner have been submitted in proper form. . . .
      “(2) A facility plan, including engineering studies and proposals, shall accompany the application and be prepared by an engineer licensed to practice in the State of Connecticut; shall contain sufficient information to demonstrate an ability to comply with these regulations; and shall include but not be limited to the following information and supporting materials as the Commissioner deems necessary and as further detailed in engineering guidelines provided by the Commissioner:
      “(A) For solid and special waste disposal areas . ..
      “(v) hydrogeologic and geologic information including predictions of movement of and impact on surface and ground water, including water supply wells, from existing and proposed site activities, and the names and addresses of all landowners within the area of potentially impacted ground waters, detailed soil boring logs; details of monitor well construction and development, the method of testing and testing results. . . .”

       On appeal to this court, the commissioner claims that the trial court improperly: (1) declined to determine whether the commissioner’s final decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record made during the pendency of the town’s permit application; (2) concluded that the commissioner abused his discretion in declining to adopt the recommended decision of the hearing officer; (3) concluded that the commissioner had abused his discretion in denying the town’s permit application without remanding the matter for further proceedings within the administrative agency; (4) determined that the town had met its burden of proof on the determination of need aspect of its permit application, and that the town was relieved of the burden of making a record thereon for the final decision maker; and (5) determined that the town’s permit application should be remanded to the commissioner and the hearings thereon reopened, in order to afford the applicant the opportunity to revisit the hydrogeological study issue, and for the commissioner to decide the application in light of that submission, thereby dictating the further actions of the commissioner in a manner that precluded him from determining the weight of the evidence in the record. Because we are reversing the trial court’s judgment based upon the commissioner’s first and third claims, we do not reach the other claims.

       General Statutes § 4-183 (j) provides in pertinent part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       The town raises the single conclusion of law doctrine, relying on the trial court’s finding that only one issue was legally in dispute—the hydrogeological study—and argues that the commissioner had acted improperly in denying the permit. The single conclusion of law doctrine has no application to the present case. That doctrine provides that when the action of an agency is overturned, and it appears “as a matter of law that there is only one single conclusion that the [agency] could reasonably reach,” the trial court can direct the agency to take the action on remand. Feinson v. Conservation Commission, 180 Conn. 421, 430, 429 A.2d 910 (1980); General Statutes § 4-183 (k). Because the town failed to submit the requisite hydrogeological study and because the results of that study may require the commissioner to reject the town’s permit application, the doctrine has no application.

       Section 22a-3a-6 (f) of the Regulations of Connecticut State -Agencies determines which party in an administrative proceeding bears the burdens of proof in a proceeding on an application, stating in pertinent part that “the applicant and other proponents of the application shall have the burden of going forward with evidence and the burden of persuasion with respect to each issue which the Commissioner is required by law to consider in deciding whether to grant or deny the application. Each factual issue in controversy shall be determined upon a preponderance of the evidence.”