author: BERDON, J.

text:
    STATE OF CONNECTICUT v. RYAN MYERS
    (SC 15208)
    Callahan, C. J., and Borden, Berdon, Palmer and McDonald, Js.

      Argued March 18
    officially released July 29, 1997

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Elpedio Vitale, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

BERDON, J.

Following a jury trial, the defendant, Ryan Myers, was convicted of felony murder in violation of General Statutes § 53U-54C, robbery in the first degree in violation of General Statutes §§ 53a-8 and 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a), and attempted assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-59 and General Statutes §§ 53a-49 and 53a-8. Although the defendant raises several issues in this appeal, at this time we reach only the procedural aspects of his claim for a new trial predicated on juror bias and remand the case to the trial court for further proceedings.

On June 8, 1994, the jury rendered a verdict of guilty on all counts. On June 27, 1994, prior to sentencing, the defendant filed a motion captioned “motion for a new trial” (motion) on the basis of juror bias. In the motion, the defendant sought a new trial and the motion set forth its basis, together with an appendix containing photocopies of certain relevant newspaper articles. In the last paragraph of his motion, the defendant requested that the trial court also consider it as a “petition for a new trial,” in accordance with General Statutes § 52-270. On September 19, 1994, the trial court held an evidentiary hearing on the defendant’s claims of juror bias, and concluded the hearing on January 9, 1995. At no time prior to the trial court’s decision on the motion did the state object to the procedural posture of the motion.

On October 24, 1994, before the completion of the hearing and the subsequent ruling on the defendant’s motion, the trial court sentenced the defendant to a total term of 100 year's imprisonment. The trial court stated that it sentenced the defendant before deciding his motion in order to ensure that there would be appellate review of the court’s decision on the motion. On March 17, 1995, the trial court granted the defendant’s motion for a new trial. On March 27, 1995, the state moved for reconsideration of that decision, arguing for the first time that the defendant’s claim of juror bias was raised in a procedurally defective manner. Because the defendant had failed to institute a separate proceeding by way of a petition for a new trial, pursuant to § 52-270, by serving a writ and complaint on the state; see State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980); State v. Servello, 14 Conn. App. 88, 101, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988); the state argued that the defendant’s petition was improperly brought and, consequently, that the state was deprived of its right to appeal from the trial court’s order granting a new trial. The trial court agreed with the state and vacated its order granting a new trial.

On appeal, the defendant argues that the trial court improperly vacated its order granting the defendant a new trial on the ground, inter alia, that the defendant should have raised the issue of juror impartiality by way of a properly instituted proceeding on a petition for a new trial pursuant to § 52-270. The state argues that the trial court acted properly and, also, as an alternative ground on which to affirm the judgment of the trial court, that the defendant failed to establish that he was actually prejudiced by the juror’s failure to disclose pertinent information. We agree with the defendant that the trial court improperly concluded that the issue of juror bias in this instance must have been raised by a petition for a new trial brought pursuant to § 52-270. We must, however, remand the case to the trial court for an articulation as to whether the trial court found actual bias.

The following undisputed facts recited by the trial court are relevant to the resolution of the issue raised by the defendant’s motion. “The issue raised by the defendant in his motion for a new trial, which was filed prior to the sentencing of the defendant, is that the juror, Richard Gay, who turned out to be the foreperson, had been involved in an incident about thirteen months prior to his selection as a juror and made no mention of it at any time during the process of jury selection or at any time thereafter. According to the testimony of [Gay] given in the course of the evidentia[ry] hearing held by the court on September 19, 1994, he made no mention of this occurrence because he did not think it was relevant. [He testified that] ‘[i]t had no bearing on anything.’ . . . And when asked if anybody he knew, [or a] family member, had ever been the victim of a crime, his response had been ‘No’ because ‘a family member’ ‘didn’t mean me.’. . . Had he been asked the specific question as to himself and any experience with being a victim of a crime, he would have answered differently. . . .

“Evidence was offered by way of newspaper articles in the New Haven Register of May 1, 1993 ... [to which Gay testified] of an occurrence in which he was assaulted by a number of youths following an automobile accident in downtown New Haven in which he either was pulled out of his car or got out and was thereafter subjected to an assault which required overnight hospitalization. In a subsequent interview by a Register reporter he was quoted as saying that the law was easing up too much on these kids, they’re not good for anything and the law should kick their . . . , The defendant in this case is a young black male residing in New Haven and in the opinion of the court would fit generally within the class of the individuals allegedly referred to by [Gay], These statements were denied by [Gay] in that he claimed not to recall specifically what he told the reporter but that he did recall wanting the police to investigate the incident. [Gay] also indicated . . . that he wanted the police to investigate because he had been ‘beat up,’ although he claimed not to remember the assault at the time of the hearing on this motion.

“The question raised by the defendant in the face of this information is whether [Gay] should have disclosed this information as bearing upon his ability to be fair and impartial in sitting as a juror on this case. The state claims that no actual bias has been shown and that when asked the question whether any family member had been the victim of a crime, he truthfully answered as to others of the family, but because he was not specifically asked whether he had been a victim of a crime he had no duty to volunteer the incident of April 29, 1993 . . . .” (Emphasis in original.)

I

We first address whether the trial court properly vacated its decision granting the defendant’s motion for a new trial based upon its conclusion, inter alia, that the defendant’s claim was required to have been brought by way of a properly instituted proceeding on a petition for a new trial pursuant to § 52-270. The state argues that the defendant’s claim of juror bias was initiated through a procedurally defective petition for a new trial. The defendant counters that his motion for a new trial, brought pursuant to Practice Book § 902, properly raised his claim of juror bias. We agree with the state that the defendant’s motion was not a properly brought petition for a new trial, but we also agree with the defendant that a claim of juror bias may be brought either by way of a motion for a new trial pursuant to § 902 of the Practice Book or a petition for a new trial pursuant to § 52-270.

The state relied on State v. Servello, supra, 14 Conn. App. 100-102, for its argument before the trial court that the defendant’s petition for a new trial was procedurally defective. The state renews this argument on appeal. A petition for a new trial is properly “instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding.” State v. Asherman, supra, 180 Conn. 144. In State v. Servello, supra, 101, the Appellate Court noted that the defendant did not follow that procedure and that “[t]he defendant filed his ‘petition for new trial’ within the technical confines of the docketed criminal case. No separate civil action was brought.” The court in Servello indicated that “[w]e are presented, then, with the question of whether the defendant’s failure to bring a petition for a new trial in a separate action deprived the trial court of subject matter jurisdiction to rule on the petition. . . . [T]he trial court should have dismissed the defendant’s petition for a new trial because it was improperly brought, and we do not review the trial court’s denial of that petition.” Id., 101-102; see also State v. Smith, 15 Conn. App. 502, 503, 545 A.2d 1150 (1988); State v. Saraceno, 15 Conn. App. 222, 250-51, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 430, 431 (1988). The motion in the present case clearly does not meet the requirements of a petition for a new trial because it too was filed within the confines of the criminal case.

Nonetheless, we construe the defendant’s motion as a motion for a new trial, pursuant to Practice Book § 902, even though he alternatively sought a new trial pursuant to § 52-270. Although not dispositive, the motion was clearly captioned “motion for a new trial” and the defendant filed his motion prior to final judgment. Further, the trial court captioned its written decision on the motion as a “memorandum of decision on motion for new trial” (emphasis added), although the trial court also made reference to § 52-270 in its decision. We conclude that the motion was a motion for a new trial pursuant to Practice Book § 902 and not a petition for a new trial.

The trial court indicated, in its oral decision vacating its previous order granting the defendant’s motion for a new trial, that its “ruling on the defendant’s motion after imposing sentence was improper, and that the issue of a juror’s impartiality must be addressed by way of a petition for a new trial.” The trial court stated that the defendant’s motion “obviously . . . falls short of being a petition that’s required under [§ 52-270] . . . .” In addition, the trial court indicated that it had sentenced the defendant and then ruled on the defendant’s motion under the assumption that its decision granting the defendant a new trial would be appealable by the state before any retrial. Notwithstanding this procedural quagmire, the trial court retained jurisdiction to entertain the motion for a new trial after sentencing because it could have opened the judgment. See State v. Wilson, 199 Conn. 417, 436, 507 A.2d 1367 (1986) (“during the continuance of a term of court the judge holding it has, in a sense, absolute control over judgments rendered; that is, he [or she] can declare and subsequently modify or annul them” [internal quotation marks omitted]).

It is true that this court has stated, as a general matter, that “the purpose of a hearing on a § 902 motion for a new trial is to determine whether the court, in the course of the trial, committed error and thereby deprived the defendant of a fair trial . . . .” (Emphasis added.) State v. Synakorn, 239 Conn. 427, 435, 685 A.2d 1123 (1996); see also State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988). Moreover, the defendant does not claim that the trial court acted improperly when it allowed Gay to sit as a juror based on the answers that Gay did provide on voir dire. Nonetheless, it is also true that this court has routinely reviewed claims of jury misconduct or jury bias brought by way of motions for a new trial. See, e.g., State v. Newsome, 238 Conn. 588, 622-29, 682 A.2d 972 (1996) (reviewing trial court’s denial of motion for new trial based on alleged juror misconduct); see also State v. Brye, 236 Conn. 209, 211, 671 A.2d 1295 (1996); State v. Ross, 230 Conn. 183, 227-29, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Asherman, 193 Conn. 695, 735-36, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Almeda,, 189 Conn. 303, 310, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985). In State v. Asherman, supra, 180 Conn. 144-45, this court stated that “errors which are claimed in relation to a motion for a new trial may be assigned on the appeal from the judgment rendered in the case in which the motion is made. . . . In the present case, the assignment of error would have to do with alleged jury misconduct and the defendant does not claim that he could not raise this particular claim of error on appeal. The alleged jury misconduct at this point is just one more event during the trial upon which the defendant may argue that a claim of error should be based after judgment is rendered.” (Citation omitted; emphasis added.) Here, the defendant did just that. That is not to say, however, that claims of juror misconduct do not also fall within the reach of a petition for a new trial brought pursuant to § 52-270. See, e.g., Asherman v. State, 202 Conn. 429, 439-43, 521 A.2d 578 (1987); Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975).

Indeed, there are important practical reasons why claims of juror misconduct raised prior to judgment should be able to be brought through the route of a motion for a new trial. “The trial judge plays a crucial role in ensuring that a criminal defendant receives a fair trial by an impartial jury, and must be ever vigilant, throughout the course of the trial, to guard against jury partiality. In a criminal trial, the judge is more than a mere moderator of the proceedings. It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . The jury room cannot be guarded with too much vigilance and jealousy. Courts must reject all evidence not received on the trial, and must repel every foreign influence, which may affect the minds of the jury. . . .

“We recognize that the trial judge has a superior opportunity to assess the proceedings over which he or she personally has presided . . . and thus is in a superior position to evaluate the credibility of allegations of jury misconduct, whatever their source." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 527-28, 668 A.2d 1288 (1995). Permitting claims of juror misconduct to be brought by way of a motion for a new trial prior to judgment makes eminent sense because of the exigency of the situation when the court is confronted with such allegations. Id., 528-29. Even if claims of juror misconduct are not raised through a motion by the defendant, “a trial court must, when presented with any allegations of jury misconduct, conduct a preliminary inquiry, sua sponte if necessary, in order to assure itself that a defendant’s constitutional right to a trial before an impartial jury has been fully protected.” Id., 528. Allegations of juror misconduct must be addressed at whatever stage they are encountered. Accordingly, we conclude that the issue of juror bias was properly before the trial court in the motion for a new trial brought prior to judgment and pursuant to Practice Book § 902.

On the basis of the reasons offered by the trial court, we conclude that the trial court in this case improperly vacated its decision granting the defendant a new trial.

II

We now reach the state’s alternate ground for affirmance on this issue. The state argues that even if the trial court improperly vacated its order granting the defendant a new trial, the defendant has failed to establish that he was actually prejudiced by the juror’s failure to disclose certain information. Because we conclude that the trial court’s ruling with respect to the defendant’s motion for a new trial is unclear as to whether the trial court found actual bias, we remand the case for further articulation as to the basis of the trial court’s ruling.

We are mindful that “[j]ury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. ... In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court.” (Citations omitted; internal quotation marks omitted.) State v. Brown, supra, 235 Conn. 522-23.

“A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case. They involve significant public interests. ‘The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.’ In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1969). Indeed, the criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). In addition, the state has a valid and weighty interest in convicting the guilty. Summerville v. Warden, 229 Conn. 397, 427, 641 A.2d 1356 (1994); State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993).” State v. Patterson, 230 Conn. 385, 398, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996).

Nevertheless, “[t]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. State v. Bowen, 167 Conn. 526, 532, 356 A.2d 162 (1975); State v. Clark, 164 Conn. 224, 228, 319 A.2d 398 (1973). It follows therefrom that the trial court must make a finding of the ultimate fact sought to be proved. A new trial is not required where a juror has given a false answer on voir dire which has the effect of depriving counsel of the opportunity to exercise the right to challenge a juror unless it appears that the party seeking it has been prejudiced in his case by the false answers. State v. Moffett, 38 Conn. Sup. 301, 311-12, 444 A.2d 239 (1981); Moynahan v. State, 31 Conn. Sup. 434, 437, 334 A.2d 242 (1974); see Burns v. State, 84 Conn. 518, 521, 80 A. 712 (1911).” State v. Almeda, supra, 189 Conn. 313. In Almeda, the court indicated that “[i]t is central to note that while the court might have been justified in drawing an inference of actual bias from the facts, especially when considered in light of their initial intentional nondisclosure, the court did not explicitly do so.” Id., 312. The court, in Almeda, remanded the matter for an articulation with respect to the basis of the trial court’s decision. Id., 314. In the subsequent appeal in Almeda, after the trial court had articulated its findings in accordance with the remand order, we indicated that “[t]he scope of the remand required that the trial court make an explicit finding of the ultimate fact to be proved, actual bias on the part of a juror.” State v. Almeda, 196 Conn. 507, 508, 493 A.2d 890 (1985). The trial court articulated its decision and found actual bias, and we affirmed its decision. Id., 508-509.

In the present case, the trial court, relying on State v. Almeda, supra, 189 Conn. 303, found that “the defendant is not able to demonstrate actual bias but . . . the court may import bias from all of the surrounding facts and circumstances. The facts and circumstances brought to the court’s attention in this matter suggest [that] the requested disqualification of [Gay] as a juror is based upon something more than mere speculation. . . . Following the review of the background of this juror as brought out by the individual voir dire and the subsequent evidentiary hearing of September 19, 1994, the perception of the court is that this defendant was entitled to more candid responses to the questions posed to the veniremen on voir dire and had those been given there is little question that on motion the court would have excused him from service. The perception as well as the actuality of a fair trial must be preserved in order that justice be done.” Consequently, the trial court initially ordered a new trial.

Unfortunately, we are in the same position here as we were in State v. Almeda, supra, 189 Conn. 303. It is not clear from the trial court’s decision in this case whether it found actual bias. Although the trial court’s decision correctly stated that it “may import bias from all of the surrounding facts and circumstances,” it also vaguely noted that all the facts and circumstances brought out at the hearing “suggest [that] the requested disqualification of [Gay] as a juror is based upon something more than mere speculation.” In addition, the court stated that “the perception of the court is that this defendant was entitled to more candid responses,” and that “[t]he perception as well as the actuality of a fair trial must be preserved . . . .” We conclude that the ruling as a whole lacks a definitive finding on whether there was actual bias. In order for this court to evaluate the state’s claim that there was no actual bias, the trial court must therefore first clarify its findings on the claim of alleged juror partiality. “Where necessary to the proper disposition of the cause, this court may remand the case for a further articulation of the basis of the trial court’s decision. State v. Almeda, [supra, 189 Conn. 314].” (Internal quotation marks omitted.) State v. Byrd, 233 Conn. 517, 523, 659 A.2d 1201 (1995).

The case is remanded to the trial court for further articulation regarding whether the trial court found actual bias on the part of juror Richard Gay. We, however, retain jurisdiction over this appeal.

In this opinion the other justices concurred.

       General Statutes § 5;5a-54c provides in relevant part: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a.-8 provides: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm, as defined in subdivision (19) of section 53a-3, to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-134 provides: “Robbery in the first degree: Glass B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-48 provides in relevant part: “Conspiracy. Renunciation. (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. . . .”

       General Statutes (Rev. to 1993) § 53a-59 provides: “Assault in the first degree: Class B felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical iqjury to another person; or (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person.
      “(b) Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-49 provides: “Criminal attempt: Sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionahy does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent, agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       The defendant raises several other issues on appeal, which we will consider after this court receives the trial court’s articulation as ordered in this opinion. Those issues are that the trial court improperly: (1) (a) refused to allow the defendant to cross-examine the state’s key witness regarding the witness’ confinement as a material witness and that witness’ arrest for the charged offenses, (b) excluded a statement inculpating the state’s key witness, and (c) refused to allow cross-examination in conformity with State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); and (2) (a) admitted into evidence a black jacket that, because it could not be linked to the defendant, was irrelevant and whose admission into evidence was more prejudicial than probative, and (b) refused to allow the defendant to offer evidence of a similar black jacket seized from the state’s key witness, thereby denying the defendant his right to present a defense and to cross-examine that witness about the second jacket.

       “The defendant’s motion, excluding the appendix that contained two newspaper articles, provided as follows:

        “MOTION FOR A NEW TRIAL
      “The defendant in the above captioned matter, hereby moves the Court for a new trial, upon the following bases:
      “1. The foreperson of the jury was Richard Gay. Since the time the verdict in this matter was handed down, the defense has found information that he was the victim of a beating on or about Thursday April 29, 1993. Upon information and recollection (a copy of his voir dire testimony has been ordered) Mr. Gay was aslced whether he had ever been the victim of a crime and other questions in that line and he replied in the negative. Attached hereto are copies of articles from the New Haven Register which outline the following events. A motorcyclist was killed when he slammed into the back of a vehicle, operated by Mr. Gay, while the car was stopped at a red light on Dixwell Ave. at its intersection with Webster Street. After the above described collision, a crowd of onlookers beat and lacked Mr. Gay resulting in Mr. Gay’s being taken by ambulance to Yale-New Haven Hospital. Gay was quoted in the New Haven Register dated May 1, 1993:
      “ ‘The law is easing up too much on these kids — they’re not good for anything and the law should lack their . . . .’
      “The failure of this venireperson to disclose this information in response to pertinent voir dire questions by counsel deprived the defendant from a fair and impartial jury in violation of the due process and equal protection guarantees of both the Connecticut and federal constitutions.
      “2. The court’s decision to not allow the defense to put into evidence the fact that one Andre Rogers, a state’s witness whose statements to detectives were put into evidence for substantive purposes, was accused of felony murder and other charges arising from the murder subject of this case, entitles the defendant to a new trial. Davis v. Alaska, 415 U.S. 309 [94 S. Ct. 1105,39 L. Ed. 2d 347] (1974); Article I, Section 8 and 9 of the Connecticut constitution; Sixth Amendment to the U.S. constitution.
      “3. In light of newly discovered evidence concerning the jury foreperson, Richard Gay, the defendant also requests the court to also consider the arguments expressed herein as a petition for a new trial in accordance with [General Statutes § 52-270] and order an evidentiary hearing concerning the newly acquired information contained herein.”

       General Statutes § 52-270 provides: “Causes for which new trials may be granted, (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entiy of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
      “(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice."
      In addition, Practice Book § 904 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with Gen. Stat., § 52-270. The judicial authority may grant the petition even though an appeal is pending.”

       See footnote 14 of this opinion.

       We note that one of the newspaper articles presented to the trial court also quoted Gay as stating, among other things, the following: “These people are out on the street comers, selling drugs all day. They’re not educated — they only know if you hurt my homeboy, I’m going to hurt you back.”

       Practice Book § 902 provides: “Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him or her.
      “If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.” (Emphasis added.)

       See foot note 8 of this opinion.

       Although it is true that the state could not appeal the trial court’s granting of a motion for a new trial, this is not a valid reason to vacate a previous order-granting amotion for a new trial. “A motion for a new trial is interlocutory and an appeal lies only from the judgment to which the motion is addressed.” State v. Asherman, supra, 180 Conn. 143. In other words, once a trial court has granted a motion for a new trial, the state must wait until final judgment has been rendered in the retrial before it can appeal the granting of the new trial.

       It is a “well-established rule that [i]n a criminal case, the imposition of sentence is the judgment of the court.” (Internal quotation marks omitted.) State v. Asherman, supra, 180 Conn. 146.

       See Practice Book § 326 (any civil judgment may be opened or set aside when motion to open or set aside is filed within four months of entry of judgment); State v. Wilson, supra, 199 Conn. 437 (applying § 326 to criminal cases for purposes of determining when trial court may modify or vacate judgments).

       The state also asserts, for the first time on appeal, that the defendant did not file his motion for a new trial within the five days permitted by Practice Book § 903, and that the defendant did not receive permission from the trial court to file the motion at a later date. Practice Book § 903 provides: “Unless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.” Although the defendant’s motion for a new trial was not filed within five days after the guilty verdict, the trial court accepted and acted on the motion. The state makes this timeliness claim even though it did not object in the trial court when the defendant filed the motion and it was clearly captioned “motion for a new trial.” The state waived this claim by not objecting to the motion being filed more than five days after the verdict was returned. See State v. Carey, 222 Conn. 299, 307, 311, 610 A.2d 1147 (1992) (concluding that “Practice Book rules do not ordinarily define subject matter jurisdiction” and that “[t]he defendant . . . waived his right to contest the defective procedure [under the rules of practice] by failing to object [in the trial court]”), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994); Lo Sacco v. Young, 210 Conn. 503, 509, 555 A.2d 986 (1989) (concluding “that the five day filing limitation for motions to set aside a verdict and for a new trial under Practice Book § 320 [in civil cases] is procedural rather than jurisdictional. . . . [I]t is clear that the defendants waived the nonjurisdietional defect in the plaintiff’s motion [by not objecting in the trial court,].”); State v. Davis, 2 Conn. Cir. Ct. 257, 260, 197 A.2d 668 (1963) (“The motion [for a new trial] in this [criminal] case, was not filed within the time limitation imposed by Practice Book, 1951, § 233. No objection having been raised, this formal defect is deemed waived.”).


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN DASH
    (SC 15569)
    Borden, Berdon, Norcott, Palmer and McDonald, Js.
    Argued April 22
    officially released July 29, 1997

      Jon L. Schoenhom, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom were Nicole A. Bemabo, legal intern, and, on the brief, Eugene J. Callahan, state’s attorney, and Robert Katz, senior assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

The principal issue raised by this appeal is whether General Statutes § 53-202k, which provides for a consecutive, nonsuspendable five year prison term for a person who commits a class A, B or C felony with a firearm, is itself a felony offense or, instead, a sentence enhancement provision. A jury found the defendant, John Dash, guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), and commission of a class A, B or C felony with a firearm in violation of § 53-202k. The trial court rendered judgment sentencing the defendant to consecutive prison terms of eleven years on the first degree assault count and five years on the count charging commission of a felony with a firearm, for a total effective sentence of sixteen years. On appeal, the defendant claims that, although the trial court properly sentenced him to a consecutive five year prison term pursuant to § 53-202k, the court nevertheless improperly rendered judgment convicting him of a separate crime under § 53-202k. We agree with the defendant and, consequently, we conclude that the defendant’s conviction under § 53-202k must be vacated.

The jury reasonably could have found the following facts. At approximately 1:30 p.m. on August 18,1994, the victim, Terry Coleman, and his fifteen year old cousin, Rashad Green-Younger, drove into the Meadow Gardens housing project in the city of Norwalk. As the victim was exiting his car, the defendant, whom the victim had met for the first time earlier that day, approached the car, pointed a gun at the victim’s temple, and stated, “This is a stickup, kid.” A struggle ensued, during which the defendant overpowered the victim, shot him in the back, and fled. Both Green-Younger and the victim, who suffered permanent injuries as a result of the shooting, positively identified the defendant as the assailant.

At trial, the state presented the testimony of several police officers regarding the investigation of the altercation, including the gathering of evidence and the preparation and presentation of photographic lineups viewed by the victim and Green-Younger. None of these police officers, however, provided eyewitness testimony. At the trial’s conclusion, the court instructed the jury that “it is permissible for you to consider the special training and experience which a police officer receives when you are judging his ability to observe and remember and record events while he is engaged in these duties.” The defendant did not object to this instruction.

The jury thereafter convicted the defendant of first degree assault and commission of a class A, B or C felony with a firearm. This appeal followed.

I

The defendant claims that his separate conviction under § 53-202k was improper because that statutory section is a sentence enhancement provision rather than a separate offense. Although the defendant concedes that the five year consecutive sentence imposed on him by the trial court pursuant to § 53-202k was proper, he maintains that his separate conviction under that statutory section must be vacated. We agree with the defendant.

Our analysis is governed by well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [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.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996). Several additional tenets of statutory construction guide our interpretation of a penal statute. First, we must take care not to impose criminal liability where the legislature has not expressly so intended. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Second, “[c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995). Finally, “unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” State v. Ross, 230 Conn. 183, 200, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).

Although the plain language of § 53-202k does not illuminate whether that statute is a sentence enhancement provision, the title of § 53-202k, “Commission of a class A, B, or C felony with a firearm: Five year nonsuspendable sentence” (emphasis added), suggests that the legislature’s overriding purpose in enacting § 53-202k was not to create a separate offense but, rather, to establish an enhanced penalty for persons who commit a class A, B or C felony with a firearm. Furthermore, unlike other provisions in which the legislature has penalized aggravated conduct of the kind contemplated by § 53-202k; see, e.g., General Statutes §§ 53a-216 and 53a-217; § 53-202k contains no language to indicate that it is, in fact, a separate felony offense. Although not dispositive of the issue presented, this fact lends further support to the conclusion that § 53-202k is not a separate crime but, rather, a sentence enhancer.

Our review of the relevant legislative history persuades us that § 53-202k was intended to serve as a sentence enhancement provision. Section 53-202k was enacted as part of a comprehensive legislative plan for dealing with assault weapons. See Public Acts 1993, No. 93-306 (P.A. 93-306), now codified at General Statutes §§ 53-202a through 53-202k. During the debate on P.A. 93-306, Representative Michael P. Lawlor described General Statutes §§ 53-202j and 53-202k as establishing, “new enhanced mandatory minimum penalties for the commission of a felony.” (Emphasis added.) 36 H.R. Proc., Pt. 32, 1993 Sess., p. 11,540. Representative Lawlor also explained that § 53-202k was intended, “[to add] five years to the end of whatever other sentence [a defendant is] receiving as a consequence of these acts. . . . This legislation requires five years to be tacked on to the end of [the] sentence [for the underlying felony] which must run consecutively and which cannot be suspended or reduced in any manner. So that would be in addition to the minimum mandatories that are already in existence for whatever the underlying crime was. So, it is five additional years on top of the other sentence.” (Emphasis added.) 36 H.R. Proc., Pt. 33, 1993 Sess., pp. 11,727-28. Similarly, Representative Reginald L. Jones, Jr., stated that this legislation “deal[s] with mandatory sentences that run consecutively and cannot be plea bargained. The purpose, of course, is to make the penalties greater and greater if you use these weapons.” (Emphasis added.) Id., p. 11,725. Finally, Senator Alvin W. Penn explained that the legislation “requires a mandatory five year sentence . . . in addition and consecutive to any imprisonment for the [underlying] felony.” 36 S. Proc., Pt. 14, 1993 Sess., p. 4956.

These comments strongly suggest that the legislature, in enacting § 53-202k, merely sought to establish an additional penalty for a person who commits a class A, B or C felony with a firearm. Moreover, nothing in the legislative history suggests that the legislature intended that § 53-202k constitute a separate offense independent of the commission of the underlying felony. Indeed, at oral argument, the state indicated that it was not pressing its claim that § 53-202k constituted a separate offense rather than a sentence enhancer.

For these reasons, and in the absence of any indication to the contrary, we conclude that § 53-202k is a sentence enhancement provision and not a separate crime. Consequently, although the defendant’s total effective sentence of sixteen years was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.

II

The defendant also claims that he was deprived of his due process right to a fair and impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, he contends that the trial court improperly instructed the jury that it could consider the “special training and experience” of police officers in assessing their credibility as witnesses. The defendant claims that the instruction was improper because it bolstered the police officers’ credibility, thereby diminishing the state’s burden of proving the defendant guilty beyond a reasonable doubt.

The defendant concedes that he neither filed a request to charge nor excepted to the jury instruction that he now maintains was improper. He therefore seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), wherein we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)

Although the record before us is adequate to review the defendant’s claim, the defendant has failed to meet the second prong of the Golding test because his claim of instructional impropriety is not one of constitutional magnitude. “Just as every claim of evidentiary error by the trial court is not truly constitutional in nature; see, e.g., id., 241; every claim of instructional error is not truly constitutional in nature. We have recognized, for example, that claimed instructional errors regarding the elements of an offense; see, e.g., State v. Boles, 223 Conn. 535, 543, 6 13 A.2d 770 (1992); and claimed instructional errors regarding the burden of proof or the presumption of innocence; see, e.g., State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993); are constitutional in nature, so as to satisfy the second Golding requirement. We have also recognized, however, that claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991). Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). Because the defendant’s claim implicates only general principles of credibility, we decline to review it because it does not meet the second prong of Golding.

The judgment is reversed in part and the case is remanded to the trial court with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant to a total effective term of imprisonment of sixteen years in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 53-202k provides: “Commission of a class A, B or C felony with a firearm: Five-year nonsuspendable sentence. Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person ....
      “(b) Assault in the first degree is a class B felony . . .

       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).

       The defendant also claims that the trial court improperly instructed the jury regarding the credibility of police officers. We decline to review this claim for the reasons set forth in part II of this opinion.

       The defendant also had been charged with attempted murder and attempted robbery in the first degree. The jury, however, acquitted the defendant of those charges.

       Because a felony conviction may carry with it “adverse collateral legal consequences”; (internal quotation marks omitted) State v. John, 210 Conn. 652, 694, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); see, e.g., Ball v. United States, 470 U.S. 856, 864-65, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985); the defendant is also entitled to have his separate conviction under § 53-202k vacated in light of our conclusion that § 53-202k is a sentence enhancement provision rather than a separate offense.

       General Statutes § 53a-216 provides: “Criminal use of firearm or electronic defense weapon: Class D felony, (a) A person is guilty of criminal use of a firearm or electronic defense weapon when he commits any class A, B or C or unclassified felony as defined in section 53a-25 and in the commission of such felony he uses or threatens the use of a pistol, revolver, machine gun, shotgun, rifle or other firearm or electronic defense weapon. No person shall be convicted of criminal use of a firearm or electronic defense weapon and the underlying felony upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Criminal use of a firearm or electronic defense weapon is a class D felony for which five years of the sentence imposed may not be suspended or reduced by the court.” (Emphasis added.)
      General Statutes § 53a-217 provides: “Criminal possession of a firearm or electronic defense weapon: Class D felony, (a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
      “(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.” (Emphasis added.)

       At oral argument, the state indicated that it “[was] not wedded to [the] position that [§ 53-202k must] be treated as a separate offense,” and, further, that it had “no problem with respect to this court holding that § 53-2021< is nothing more than a penalty enhancement [provision].” The state also acknowledged the similarity between § 53-202k and our persistent felony offender statute, General Statutes § 53a-40, which does not create any separate crimes. See, e.g., State v. Sinclair, 184 Conn. 215, 216, 439 A.2d 945 (1981). As the state conceded, the only difference between § 53-202k and § 53a-40 is that the former requires proof of the commission of an offense, while the latter requires proof of a prior conviction.

       It bears mention that the United States Supreme Court, in rejecting a constitutional challenge to a Pennsylvania sentencing provision comparable to § 53-202k; see 42 Pa. Cons. Stat. § 9712; noted that said statute “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty . . . .” McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1985). We reach the same conclusion under the analogous provisions of § 53-202k.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” This provision applies to the states under the due process clause of the fourteenth amendment to the federal constitution. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
      Article first, § 8, of the Connecticut constitution provides in relevant part: "In all criminal prosecutions, the accused shall have a right. . . to a speedy, public trial by an impartial jury. No person shall be . . . deprived of . . . liberty . . . without due process of law . . . .”


author: MCDONALD, J.

text:
    MED-TRANS OF CONNECTICUT, INC., ET AL. v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES ET AL.
    (SC 15626)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

      Argued April 29
    officially released July 29, 1997

      Jeffrey J. Mirman, with whom was John E. Shaffer, for the appellant (named plaintiff).

      Patricia A. Gemer, assistant attorney general, with whom were Felicia R. Suggs, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (named defendant).

      Hugh I. Manke, with whom, on the brief, were John F. Wotter and Christopher L. Brigham, for the appellee (defendant Access Ambulance Company, Inc.).
   Opinion

MCDONALD, J.

The sole issue in this appeal is whether the trial court properly determined that the named plaintiff, Med-Trans of Connecticut, Inc., lacks standing to appeal from the decision of the department of public health and addiction services, office of emergency medical services (department), granting Access Ambulance Company, Inc. (Access), a license to provide ambulance services in Stamford and Greenwich. The named plaintiff and the plaintiff Danbury-Nelson Ambulance Services, Inc. (Danbury-Nelson), alleging that they each hold a license to provide such services in Fairfield County, appealed from the department’s decision to the Superior Court. The defendants, the department and Access, each filed a motion to dismiss the plaintiffs’ appeal. The trial court found that the plaintiff and Danbury-Nelson were not aggrieved by the department’s decision and rendered judgment dismissing the appeal. The plaintiff 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 affirm the judgment of the trial court.

The relevant, undisputed facts are as follows. Pursuant to General Statutes § 19a-178, the department is responsible for the licensing and certification of ambulance services. The plaintiff is a licensed emergency medical service operator providing emergency medical services as well as nonemergency ambulance and invalid coach transport throughout Fairfield County. On December 6, 1994, pursuant to General Statutes § 19a-180 (a), Access applied to the department requesting a license to operate a new ambulance service in Stamford and Greenwich with a branch office, three ambulances and an invalid coach. The application was referred to the Southwestern Connecticut Emergency Services Council, Inc., which recommended its approval.

The department then held a public hearing on the application, at which the plaintiff and Danbury-Nelson submitted requests to be afforded party status in the proceedings because Access’ proposed services “would be in direct competition with those services provided by [them].” The hearing officer denied the requests for party status, but did grant both the plaintiff and Dan-bury-Nelson intervenor status. After hearings at which the plaintiff and Danbury-Nelson participated, the department granted Access’ application.

The plaintiff and Danbury-Nelson appealed from that decision to the Superior Court pursuant to General Statutes §§ 19a-180 (c) and 4-183 (a). The plaintiff and Dan-bury-Nelson alleged, inter alia, that they improperly had been denied party status by the department because “[a]s direct competitors of [Access], the granting of a license to Access will cause a dilution and a diminuti[on] of the existing licenses held by [them].” The plaintiff and Danbury-Nelson further alleged that the hearing officer and the department improperly concluded that Access had demonstrated the need for its proposed service, that health care facilities in Stamford and Greenwich had experienced response delays in non-emergency service calls from existing providers, and that Access’ proposed service would improve response times and be more cost effective. Finally, the plaintiff and Danbury-Nelson alleged that “[a]s direct competitors of Access, [they] will be adversely affect[ed] by the granting of Access’ application. In addition, having been issued licenses based upon need and necessity, the value of [their] licenses . . . and the transferability of these licenses, are diminished by the guaranty of Access’ application. [The plaintiff] and Danbury[-Nelson] are therefore aggrieved by the [department’s] Final Decision granting Access’ application.”

The trial court found that the interests of the plaintiff and Danbury-Nelson in the department’s decision derive solely from the fact that they are existing ambulance companies in the area where Access would be operating. The court found, therefore, that “[t]he injury that [the plaintiff and Danbury-Nelson] would suffer as a result of the decision would be to their business interests — their profits would suffer because of increased competition for nonemergency ambulance business in the area.” The court concluded that, because § 19a-180 (a) requires the department, in reviewing an application, to determine only the public necessity for such services, and does not require the department to consider the effects on competition, the interests of the plaintiff and Danbury-Nelson were not at stake in the department’s decision. The court determined, therefore, that the plaintiff and Danbury-Nelson were not aggrieved by the department’s final decision granting Access’ application and that it lacked subject matter jurisdiction over their appeal. Accordingly, the court granted the defendants’ motions to dismiss. This appeal followed.

An appeal from an administrative decision of the department is governed by § 19a-180 (c) and the Uniform Administrative Procedure Act (UAPA). General Statutes §§ 4-166 through 4-189. Section 19a-180 (c) provides: “Any person or emergency medical service organization aggrieved by an act or decision of the Office of Emergency Medical Services regarding certification or licensure may appeal in the manner provided by [the UAPA].”

“Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 729,573 A.2d 736 (1990); Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). . . . Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 172, 592 A.2d 386 (1991).

“The test for aggrievement long recognized by this court is set forth in our decision in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987). There we stated that [t]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision .... Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [supra, 193 Conn. 65]. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).. . . [State Medical Society v. Board of Examiners in Podiatry, supra], 299-300. The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).” (Citations omitted; internal quotation marks omitted.) United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 342-43, 663 A.2d 1011 (1995).

The second prong of the aggrievement test requires the plaintiff to “demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law. See State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. 300-301.” United Cable Television Services Corp. v. Dept, of Public Utility Control, supra, 235 Conn. 343. “[I]n considering whether a plaintiffs interest has been injuriously affected by [an administrative decision], we have looked to whether ‘the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for [its] complaint.’ . . . Air Courier Conference v. Postal Workers, 498 U.S. 517, 523, 111 S. Ct. 913, 112 L. Ed. 2d 1125 (1991), citing Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).” United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 344-45.

“Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. [Assn., of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970)]; Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). . . . State v. Nardini, 187 Conn. 109, 113, 445 A.2d 304 (1982); Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 483; see New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 126, 627 A.2d 1257 (1993) (applying zone of interests analysis); State v. Pierson, 208 Conn. 683, 687, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989) (standing merely requires the party to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute or constitutional guarantee); see also New Haven v. Public Utilities Commission, 165 Conn. 687, 702, 345 A.2d 563 (1974) ([i]t is now settled that standing to maintain an action in the federal courts requires proof of injury in fact to an interest within the zone of interests sought to be protected by the federal statute in question).” (Internal quotation marks omitted.) United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 345.

The plaintiff claims that it is aggrieved by the department’s decision to grant Access a license to provide ambulance services in violation of § 19a-180 (a) because the competition that results from the decision diminishes the value of the plaintiffs previously exclusive license to provide ambulance services. Applying the general standards of standing, therefore, our inquiry is whether the plaintiffs interest is within the zone of interests protected by § 19a-180 (a). We applied this principle in United Cable Television Services Corp. and Light Rigging Co. with differing results. In Light Rigging Co. v. Dept, of Public Utility Control, supra, 219 Conn. 177, we concluded that various trucking companies were aggrieved by the alleged violation of General Statutes (Rev. to 1985) § 16-286 by the department of public utility control in granting a certificate of public convenience and necessity to a competitor. By contrast, in United Cable Television Services Corp. v. Dept, of Public Utility Control, supra, 235 Conn. 346, we concluded that a cable television company was not aggrieved by the alleged violation of General Statutes (Rev. to 1995) § 16-331 (b), (d) and (h) by the department of public utility control in granting a certificate of public convenience and necessity to a competitor, but was aggrieved by that department’s alleged violation of § 16-331 (i).

In this case, the trial court, after reviewing those two cases, concluded that, because § 19a-180 (a) does not require the department to consider the effect on existing ambulance service license holders in deciding whether to grant a new license, the plaintiff was not aggrieved. The plaintiff argues that the trial court’s decision is “based upon a far too expansive reading of United Cable [Television Services Corp.] and an excessively restrictive interpretation of Light Rigging [Co.].” The plaintiff contends that the distinction between those two cases is whether the statutory schemes involved required the department to consider the public necessity of the proposed services. We conclude that public necessity alone does not confer aggrievement and, therefore, we find no merit to the plaintiffs arguments.

In Light Rigging Co., we considered “General Statutes (Rev. to 1985) § 16-286 [which required] the [department of public utility control] to consider ‘the existing motor transportation facilities and the effect upon them of granting such certificate, [and] the public need for the service the applicant proposes to render’ when determining whether to grant a certificate of public convenience and necessity.” (Emphasis added.) Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 176. In Light Rigging Co., the plaintiff trucking companies had standing, not because the department of public utility control was required to consider the public need for the proposed services, but, rather, because their competitive interests were protected by the statute. Id., 177.

In United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 346, we concluded that § 16-331 (b), (d) and (h) “are meant to protect the public at large and not the interests of individual competitors.” “[T]he legislature has demonstrated an ability to protect existing competitors when it chooses to do so.” Id., 351. When it chooses not to, “the community, through the office of consumer counsel, is the appropriate party to raise any claims concerning ‘community needs.’ ” Id., 352. We therefore held that because § 16-331 (b), (d) and (h) did not require the department of public utility control to consider the effects on competition, the cable television company did not allege a legally protected interest under § 16-331 (b), (d) and (h). Id., 346.

Section 19a-180 (a) provides in relevant part: “No person shall operate any ambulance service, rescue service or management service without either a license or a certificate issued by the Office of Emergency Medical Services. ... A certificate shall be issued to any volunteer or municipal ambulance service which shows proof satisfactory to the commissioner that it meets the minimum standards of the commissioner in the areas of training, equipment and personnel. . . . Upon determination by the Office of Emergency Medical Services that an applicant is financially responsible, properly certified and otherwise qualified to operate a commercial ambulance service, the Office of Emergency Medical Services shall issue a license effective for one year to such applicant. . . .” Section 19a-180, by its language, requires the department to issue a license to a qualified applicant without consideration of the effects on competition. We conclude that § 19a-180 requires the department primarily “to protect the public at large and not the interests of individual competitors”; United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 346; in its decisions whether to grant licenses and certificates.

The legislative history of No. 74-305, §§ 9 and 19, of the 1974 Public Acts (P.A. 74-305), which enacted § 19a-180, supports our conclusion. The debate regarding P.A. 74-305 focused on the need to regulate a system that had been criticized for abuses and inefficiency. Senator David Berry stated that “this bill establishes a state coordinated regional system for the delivery of emergency medical services throughout the entire state. It empowers the commission on hospitals and health care to plan, coordinate, and administer this system. It creates within the commission the position of deputy director of emergency medical services who would act as state coordinator for the system.” 17 S. Proc., Pt. 6,1974 Sess., pp. 2403-2404. Representative Virginia Connelly remarked that “swift passage of this bill will save hundreds of lives lost through death and disability because of inadequate or nonexistent emergency medical services.” 17 H. Proc., Pt. 9, 1974 Sess., p. 4320. Representative Albert Webber added that “[t]he bill is designed as an exemplary product of the General Assembly’s concern for all the interests and welfare of our citizens.” Id., p. 4336.

In Light Rigging Co., we did find a legislative intent to protect the existing competitive position of truckers carrying goods. In United Cable Television Services Corp., we found no such intent for cable television companies providing programming to the community at large. In this case, concerning the transportation of patients requiring ambulance services, sometimes in emergency and life-threatening circumstances, it is very clear that the legislature did not intend to protect the competitive advantage or monopoly of an existing service provider, but, rather, the legislature sought to protect the welfare of those in the community in need of those services.

The plaintiff further argues that other language in § 19a-180 (a) indicates that the legislature intended for competitors to participate in the process of determining whether a need for a new or expanded service exists. Section 19a-180 (a) also provides: “In considering requests for approval of permits for new or expanded medical emergency services in any region, the Office of Emergency Medical Services shall consult with the emergency medical services council of such region and shall hold a public hearing to determine the necessity for such services. Written notice of such hearing shall be given to current providers in the geographic region where such new or expanded services would be implemented . . . .” (Emphasis added.) This language was added to § 19a-180 (a) pursuant to No. 80-480, § 2, of the 1980 Public Acts. The legislative history regarding this language adds only that the formal notice of such a hearing would be given to “current providers in the region in order to give them an opportunity to come and comment on the expanded service.” 23 S. Proc., Pt. 8, 1980 Sess., p. 2425, remarks of Senator Richard Schneller. We are not convinced that, because the legislature sought to provide a forum for competitors to express their views concerning a new applicant, the legislature intended to protect a competitive advantage for an existing ambulance service company. The legislature intended the department to regulate ambulance services so as to provide the safest, most efficient services possible to the general public, and this amendment ensured that the department would have as much information as possible when making its decisions. Furthermore, because members of the public may participate in the application process to the same extent as existing competitors, the amendment does not elevate existing competitors to an aggrieved status.

The plaintiff points out that § 19a-180-7 (d) of the Regulations of Connecticut State Agencies requires the department to consider “[t]he impact of the proposed service on existing services in the area.” Given the language of the statute and its paramount purpose, the fact that the department proposed to consider the existence of such services and the impact on those services, along with the seven other factors, does not confer aggrievement on the plaintiff. When a statute and a regulation conflict, the statute must prevail. Rose v. Freedom of Information Commission, 221 Conn. 217, 229, 602 A.2d 1019 (1992); Austin v. Housing Authority, 143 Conn. 338, 348-49, 122 A.2d 399 (1956).

The plaintiff also argues that § 19a-180 (c) expressly authorizes it to appeal from the department’s decision because that section provides that an “emergency medical service organization” may appeal. This argument is unavailing. Following the plaintiffs logic would remove the requirement that emergency medical organizations must be aggrieved by a decision of the department.

The plaintiff further contends that not allowing it to appeal would leave every decision of the department to grant new certificates and licenses free from judicial review and that the legislature could not have intended such a result. The legislature, however, entrusted the department with the role of establishing and maintaining a system of ambulance services to serve a vital and supremely important public need. Our decision does not conflict with the goals of the legislature.

The plaintiff finally argues that, prior to the hearing on Access’ application, the department routinely granted party status to existing competitors, and that the department’s current position that existing competitors have no cognizable interest in the granting of a new license is contrary to its prior conduct. In reaching our decision here, we need not take a position on the prior conduct of the department. Moreover, even if the department had granted party status to the plaintiff, “ [m] ere status . . . as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review.” Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 620, 419 A.2d 346 (1979); see also Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 178; Bakelaar v. West Haven, supra, 193 Conn. 66.

We conclude that the trial court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

       The named plaintiff was formerly known as Ace Ambulance Service, Inc.

       The department of public health and addiction services was replaced by the department of public health on July 1, 1995. Public Acts 1995, No. 95-257, §§ 12, 21, 58.

       Although the named plaintiff was joined in its appeal to the Superior Court by Danbury-Nelson, it prosecutes this appeal alone. We will, therefore, refer to the named plaintiff as the plaintiff throughout this opinion.

       General Statutes § 19a-178 provides: “There shall be established within the Department of Public Health an Office of Emergency Medical Services. The office shall be responsible for (a) the licensure or certification of the following: (1) Ambulance operations, ambulance drivers, emergency medical technicians, and communications personnel; (2) emergency room facilities and communications facilities and (3) transportation equipment, including land, sea and air vehicles used for transportation of patients to emergency facilities; (b) periodic inspections of life saving equipment, of emergency facilities and of emergency transportation vehicles to insure that state standards are maintained; and (c) perform such other duties and functions as are assigned to said office by the Commissioner of Public Health.” Because the only change to the statute since the underlying administrative proceedings was the name change of the department, we use the current version of the statute throughout this opinion. See footnote 2 of this opinion.

       General Statutes § 19a-180 (a) provides: “No person shall operate any ambulance service, rescue service or management service without either a license or a certificate issued by the Office of Emergency Medical Services. No person shall operate a commercial ambulance or commercial rescue service or a management service without a license issued by the Office of Emergency Medical Services. A certificate shall be issued to any volunteer or municipal ambulance service which shows proof satisfactory to the commissioner lhat it meets the minimum standards of the commissioner in the areas of training, equipment and personnel. Applicants for a license shall use the forms prescribed by the Office of Emergency Medical Services and shall submit such application to the Office of Emergency Medical Services accompanied by an annual fee of one hundred dollars. In considering requests for approval of permits for new or expanded emergency medical services in any region, the Office of Emergency Medical Services shall consult with the emergency medical services council of such region and shall hold a public hearing to determine the necessity for such services. Written notice of such hearing shall be given to current providers in the geographic region where such new or expanded services would be implemented, provided that any volunteer ambulance service which elects not to levy charges for services rendered under this chapter shall be exempt from the provisions concerning requests for approval of permits for new or expanded emergency medical services, set forth above. Each applicant for licensure shall furnish proof of financial responsibility which the office deems sufficient to satisfy any claim. The Commissioner of Public Health shall establish by regulation satisfactory kinds of coverage and limits of insurance for each applicant for either licensure or certification, provided until such time as such regulations are promulgated the following shall be the required limits for licensure: (1) For damages by reason of personal injury to, or the death of, one person on account of any accident, at least five hundred thousand dollars, and more than one person on account of any accident, at least one million dollars, (2) for damage to property at least fifty thousand dollars and (3) for malpractice in the care of one passenger at least two hundred fifty thousand dollars, and for more than one passenger at least five hundred thousand dollars. In lieu of Ihe foregoing, a single limit of liability shall be allowed as follows: (A) For damages by reason of personal injury to, or death of, one or more persons and damage to property, at least one million dollars; and (B) for malpractice in the care of one or more passengers, at least five hundred thousand dollars. A certificate of such proof shall be filed with the Office of Emergency Medical Services. Upon determination by the Office of Emergency Medical Services that an applicant is financially responsible, properly certified and otherwise qualified to operate a commercial ambulance service, the Office of Emergency Medical Services "shall issue a license effective for one year to such applicant. If the Office of Emergency Medical Services determines that an applicant for either a certificate or license is not so qualified, it shall notify such applicant of the denial of his application with a statement of the reasons for such denial. Such applicant shall have thirty days to request a hearing on the denial of said application.” Because the only change to the statute since the underlying administrative proceedings was the name change of the department, we use the current version of the statute throughout this opinion. See footnote 2 of this opinion.

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       At oral argument, the plaintiffs counsel stated that the only other service in the area was Danbury-Nelson.

       General Statutes (Rev. to 1985) § 16-286 provides: “In determining whether or not such a certificate shall be granted, the department of public utility control shall take into consideration the existing motor transportation facilities and the effect upon them of granting such certificate, the public need for the service the applicant proposes to render, the suitability of the applicant, or the suitability of the management if the applicant is a corpora-lion, the financial responsibility of the applicant, the ability of the applicant efficiently to perform the service for which authority is requested, the condition of and effect upon the highways involved and the safety of the public using such highways. The department shall take into consideration such recommendations as to motor transportation facilities, or highways, or the effect of granting such certificate upon either of them, or the safety of the public using such highways, as the commissioner of transportation may submit to it in writing within thirty days of the conclusion of the hearing thereon. No such certificate shall be denied solely on the ground that there is an existing rail or motor service. When it appears that no motor common carrier service is being supplied over the route or routes applied for, public convenience and necessity shall be presumed to require operation of such service.”

       General Statutes (Rev. to 1995) § 16-331 provides in relevant part: “(b) In determining whether a new certificate shall be issued or an existing certificate transferred, the department of public utility control shall only take into consideration the suitability of the applicant or, if the applicant is a corporation, of its management, the financial responsibility of the applicant and the ability of the applicant to perform efficiently the service for which authority is requested. In the case of an application filed on or after October 1, 1981, (1) if the applicant or an affiliate thereof is the holder of one or more other certificates in the state, the department shall also consider the possible adverse effects of increasing the concentration of ownership of community antenna television systems and related services, which would result from granting the application and (2) suitability of the applicant shall include consideration of participating owners resident in the proposed service area as well as involvement in local civic and community activities. In considering concentration of ownership the department shall only taire into account the following factors: (A) Federal and state antitrust and unfair trade practices laws, regulations and policies and (B) the reduced ability of the department to make comparisons with other certificate holders. In the case of an application filed on or after January 1,1983, for the approval of the transfer of an existing certificate, the department shall also (i) consult with the advisory council established by regulation for the franchise area specified in the certificate and, (ii) if the applicant or an affiliate thereof is the holder of one or more other certificates in the state, consider the adequacy of the service provided by such holder in the franchise areas specified in such certificate or certificates. The department may adopt regulations in accordance with chapter 54 to carry out the purposes of this subsection. . . .
      “(d) (1) An initial certificate issued prior to June 1, 1988, shall grant a franchise for fifteen years, provided that for certificates issued prior to January 1, 1975, the initial franchise term shall be deemed to end for four such companies each year, starting in 1989, in order of those companies having the highest gross revenues under chapter 211 or 212a during the calendar year ending December 31, 1982. An initial, renewal or transfer certificate issued on or after June 1, 1988, shall grant a franchise for a term of not less than five years and not more than ten years, except that under special circumstances, as described in subdivision (2), a franchise may be granted for a term of more than ten years but not more than fifteen years. The department shall have the discretion to determine the appropriate length of a franchise term, initial, renewal or transfer, and in making its decision shall consider the following without limitation: (A) The operator’s past performance in terms of meeting the needs of the cable-related community; (B) the operator’s past performance in terms of complying with the material terms of the existing franchise; (C) the operator’s compliance with department regulations and the general statutes; (D) the ability of the operator’s management to properly operate the franchise; (E) the operator’s effectiveness in dealing with consumer requests, complaints and billing questions or disputes; (F) the operator’s effectiveness in dealing with the advisory council; (G) the quality and diversity of the operator’s programming; (H) the quality of the operator’s community access programming, including public access, educational access and governmental access programming, in accordance with the provisions of subdivision (3) of this subsection; (I) the quality of the operator’s equipment and facilities; (J) the operator’s proposals for future extensions and upgrading to technologically advanced equipment, facilities and systems; (K) the operator’s past performance in terms of meeting the needs of the cable-related community by providing African-American and Hispanic programming; (L) the operator’s good faith efforts, as determined by the department, to provide service, when practicable, to all customers within the service area; (M) the operator’s past performance in making available addressable converters, traps or other devices or services which enable subscribers to voluntarily block transmission of specific programming to their homes or places of business; and (N) the applicant’s provision of innovative services, including audio services, information services, electronic publishing and information concerning the proceedings of the general assembly and legislative committees.
      “(2) Under special circumstances, the department in its discretion, may issue, renew or transfer a franchise for a term of not more than fifteen years if the franchisee has committed itself, as outlined in the franchise agreement, to provide or maintain technologically advanced equipment, facilities and systems, as determined by the department, to enhance and promote technologically advanced educational programming, including the programming specified in subsection (b) of section 10-4e, and to comply with specific quality of service standards, including, but not limited to, the time between installation and repair following a subscriber request, the response time to consumer complaints and the quality of the operator’s customer service policies and practices.
      “(h) Each applicant for a certificate shall finance the reasonable costs of a community needs assessment, conducted by an independent consultant and developed jointly by the department, the Office of Consumer Counsel, the local advisory council and the applicant, which assessment shall analyze a community’s future cable-related needs and, if applicable, shall provide the department with assistance in analyzing an operator’s past performance as defined in subsection (d) of section 16-3332. The department shall supervise the assessment and provide the independent consultant with the date upon which the assessment, shall be completed and filed with the depart ment. Such community needs assessment shall be conducted in lieu of the requirement in subdivision (12) of subsection (c) of section 16-333-39 of the regulations of Connecticut state agencies. . . .’’

       General Statutes (Rev. to 1995) § 16-331 (i) provides: “Each certificate of public convenience and necessity for a franchise issued pursuant to this section shall be nonexclusive, and each such certificate issued for afranchise in any area of the state where an existing franchise is currently operating shall not contain more favorable terms or conditions than those imposed on the existing franchise. This subsection shall not apply to the length of the term of such certification as may be determined pursuant to subsection (d) of this section.”

       The cable television company, however, did allege a legally protected interest under § 16-331 (i), which prohibits more favorable terms for new competitors. United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 355.

       Section 19a-180-7 of the Regulations of Connecticut State Agencies provides: "In determining whether a need for a new or expanded emergency medical service has been demonstrated, the Office [of Emergency Medical Services] shall consider the following factors:
      “(a) The population to be served by the proposed service;
      “(b) The geographic area to be served by the proposed service;
      “(c) The volume of calls for the previous 12 months within such areas;
      “(d) The impact of the proposed service on existing services in the area;
      “(e) The potential improvement in service in the area including cost effectiveness and response times;
      “(f) The location of the proposed principal and branch places of business in relation to health facilities and other providers;
      “(g) The need for special services, if applicable; and
      “(h) The recommendation of the any applicable regional council.”