author: Callahan, J. Arthur H. Healey, J.,

text:
    Federal Aviation Administration, United States Department of Transportation v. Administrator, Unemployment Compensation Act, et al.
    (12521)
    Peteks, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued April 4
    decision released June 25, 1985

      John J. Markunas, Jr., general attorney, Federal Aviation Administration, with whom were Leslie C. Ohta, assistant United States attorney, and, on the brief, George L. Thompson, Alan H. Nevas, United States attorneys, and Robert A. Brooks, assistant United States attorney, for the appellant (plaintiff).

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh and Charles A. Overend, assistant attorneys general, for the appellee (named defendant).

      Jonathan L. Gould, with whom, on the brief, was James L. Kestell, for the appellees (defendant Denise Douglas et al.).
   Callahan, J.

This is an appeal from the judgment of the trial court dismissing an employer’s appeal from a grant of unemployment compensation benefits to its employees. The facts as found by the employment security division board of review (hereinafter board) are not disputed in this appeal. The defendant claimants were air traffic controllers employed by the plaintiff federal aviation administration (hereinafter FAA). They were discharged from their employment for participation in a nationwide strike of air traffic controllers that commenced on August 3, 1981. The defendants were terminated for being absent from their posts without leave during the strike and for participation in the strike in violation of their oaths and federal statutes.

Subsequent to their termination from federal service, the defendants filed for, and were allowed Connecticut unemployment compensation benefits by the defendant administrator of the Connecticut unemployment compensation commission (hereinafter administrator). The FAA filed a timely appeal from that decision to the employment security appeals division. The board of review, acting on its own motion and pursuant to General Statutes § 31-248a, transferred the case to itself and assumed jurisdiction. A de novo evidentiary hearing was held on March 18, 1982, and by decision dated June 14,1982, the board upheld the decision of the administrator to grant unemployment compensation benefits to the defendants. In the plaintiff’s subsequent administrative appeal to the Superior Court, the trial court agreed with the board of review.

The determinative issue on this appeal, as it was in the administrative proceedings before the board of review, is the interpretation of General Statutes § 31-236 (2) (B). In August of 1981, this statute provided in pertinent part: “An individual shall be ineligible for benefits ... if, in the opinion of the administrator, he has been discharged or suspended for felonious conduct or repeated wilful misconduct in the course of his employment . . . The board found that the defendants were discharged for wilful misconduct in the course of their employment. The board, however, concluded that the defendants’ continued and voluntary absence from work on and after August 3, 1981, was not repeated wilful misconduct which would have disqualified them for benefits under General Statutes § 31-236 (2) (B). The board apparently reasoned that failure to report to work, though on successive days, was a single act. Our disposition of this appeal makes it unnecessary to consider further this conclusion of the board.

The board also found that participation by the defendants in a strike against the United States government was in fact and in law felonious conduct and that the defendants were discharged for felonious conduct in violation of 18 U.S.C. § 1918. The board, noting that the felonious conduct provision of General Statutes § 31-236 (2) (B) is of recent vintage and that prior cases it had considered concerning discharge for felonious conduct involved violation of Connecticut criminal statutes, not federal criminal statutes, determined that this was a case of first impression. It therefore decided it must look to the legislative intent to resolve the question of whether the disqualification prescribed by the felonious conduct provision of General Statutes § 31-236 (2) (B) extends to and embraces the type of felonious conduct which caused the defendants’ discharge, in this case the violation of a federal criminal statute defined as a felony. Looking to the legislative history of General Statutes § 31-236 (2) (B), the board found an intent that felonious conduct, to be a basis for disqualification from receiving unemployment compensation benefits in the event of discharge from employment, must involve a felony under the criminal statutes of the state of Connecticut. The board therefore determined that the defendants were entitled to benefits and upheld the decision of the administrator. The trial court deferred to the board’s construction of § 31-236 (2) (B) in dismissing the plaintiff’s appeal. We find error.

In the interpretation of statutes, the intent of the legislature is to be found not in what it meant to say but in what it did say. State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). A primary rule of statutory construction is that if the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature; State v. Smith, supra, 221; Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975); Hartford Hospital v. Hartford, 160 Conn. 370, 375-76, 279 A.2d 561 (1971); and there is no need to construe the statute. Bell v. Planning & Zoning Commission, 173 Conn. 223, 226, 377 A.2d 299 (1977). The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed. Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975). Where the legislative intent is clear and unambiguous, there is no need for statutory construction or a review of the legislative history. Moreover, it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms. In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975). It, therefore, is not for the board or the court to search out some intent which they believe the legislature had; they are confined to the intention which is expressed in the words used. Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948).

We recognize that the provisions of General Statutes chapter 567 should be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases. General Statutes § 31-274 (c). This, however, is not a doubtful case. General Statutes § 31-236 (2) (B) clearly disqualifies an individual from receiving benefits if discharged from employment for felonious conduct. The board found that the defendants were discharged for felonious conduct. Whether that conduct was felonious conduct under the laws of the state of Connecticut or of the United States is immaterial. The term “felonious conduct” as used in the statute is clear and unambiguous and not subject to interpretation. Connecticut being a part of the United States, the legislature must be presumed to have been aware that federal laws operate within our borders. If the legislature had desired an exception for federal felonious conduct, it could easily have inserted one in the statute. It is not the prerogative of the board or the court to do so.

There is error, the judgment is set aside and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion Peters C. J., Shea and Santaniello, Js., concurred.

Arthur H. Healey, J.,

dissenting. I do not agree with the majority that the conduct for which these defendant claimants were discharged constituted “felonious conduct” within the meaning of General Statutes (Rev. to 1981) § 31-236 (2) (B) of the Connecticut Unemployment Compensation Act. The administrator of the Connecticut Unemployment Compensation Act initially determined that the claimants were eligible under the act for unemployment benefits. The plaintiff employer appealed this decision to the employment security board of review (the board); General Statutes § 31-237a (a); which conducted a de novo hearing, made findings of fact, and affirmed the determination of the administrator. The plaintiff employer appealed that decision to the Superior Court, which, in upholding the board, affirmed the administrator’s construction of the act. Against this background, the majority declares that the pertinent provision upon which they base their decision is “clear and unambiguous and not subject to interpretation.” I respectfully disagree.

At the time these claimants applied for unemployment benefits, the Connecticut Unemployment Compensation Act provided in pertinent part that “[a]n individual shall be ineligible for benefits . . . if, in the opinion of the administrator, he has been discharged or suspended for felonious conduct or repeated wilful misconduct in the course of his employment . . . .” (Emphasis added.) General Statutes § 31-236 (2) (B). The “opinion of the administrator” language is clear legislative recognition of the administrator’s duties and powers to administer the act with the expertise in that area that he has. See General Statutes §§ 31-250 through 31-253. We have very recently reiterated our recognition of the deference due to the administrator’s construction of the unemployment compensation statutes which he has the statutory duty and authority to administer. See Fellin v. Administrator, 196 Conn. 440, 447, 493 A.2d 174 (1985); see also Burnham v. Administrator, 184 Conn. 317, 323, 439 A.2d 1008 (1981) (“storm Larry” claims). I acknowledge that the deference to be accorded is not absolute. The trial court, however, in a thoughtful decision, not only determined that in this case deference was to be accorded the administrator’s construction of the act but also recognized that the administrator is charged by statute “to presume coverage, eligibility and nondisqualification in doubtful cases.” General Statutes § 31-274 (c); see also Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 24, 434 A.2d 293 (1980). At the very least, this case is a “doubtful case.”

The administrator and the board were of the opinion that the term “felonious conduct,” as intended by the legislature, was to be limited to conduct that constituted felonies only under Connecticut law. Although the administrator’s and the board’s construction is not the only possible construction of the “felonious conduct” provision, as the majority opinion indicates, it nevertheless is a plausible and supportable construction and, as such, was properly upheld by the trial court. See Connecticut Department of Income Maintenance v. Heckler, 471 U.S. , 105 S. Ct. 2210, 2215 n.21, 85 L. Ed. 2d 577 (1985), citing Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 153, 67 S. Ct. 245, 91 L. Ed. 136 (1946); see also Burnham v. Administrator, supra, 322-23.

I am aware that tenets of statutory construction should be utilized to resolve, not to create, an ambiguity. Although the majority opinion states that the term “felonious conduct” may seem “clear and unambiguous,” a legitimate question in my opinion is presented in this case in the context of the act, and the administrator and the board both recognized this.

The United States Supreme Court has stated that although there is “no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes . . . [frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ . . . [it] has followed that purpose, rather than the literal words.” (Footnotes omitted.) United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940). That court also said “[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” Id., 543-44. A statute “does not become ambiguous merely because the parties contend for differing meanings . . . [but rather] [t]he intent of the legislature is to be found in the meaning of the words of the statute; that is, in what the legislature actually did say, not in what it meant to say.” (Emphasis in original.) Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981); see also Robinson v. Unemployment Security Board of Review, supra, 6-7 (construing the “voluntary quit” provision of General Statutes § 31-236 [2]). When circumstances justify, and they do in this case, “a court may use available aids to construction no matter how clear the statute may appear at first inspection.” Brigham v. United States, 539 F.2d 1312, 1316 n.8 (3d Cir. 1976); see United States v. Duncan, 527 F.2d 1278, 1280 (3d Cir. 1976). “A word or statute is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses.” Town of Vernon v. Waukesha County, 99 Wis. 2d 472, 477, 299 N.W.2d 593 (1980), aff’d, 102 Wis. 2d 686, 307 N.W.2d 227 (1981); 73 Am. Jur. 2d, Statutes § 258 (1974). That is the situation in this case. The term “felonious conduct” as used in the Connecticut Unemployment Compensation Act falls squarely within this category, and in this case the administrator and the board qualify as “reasonably well-informed persons.” Still, the majority does not consider this a “doubtful case.” General Statutes § 31-274 (c).

Courts should accord “ ‘ “great deference to the construction given the statute by the agency charged with its enforcement.” ’ ” (Citations omitted.) Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983); see also Fellin v. Administrator, supra, 447. Various appellate courts, in this context of acknowledging this black-letter principle of administrative law; see, e.g., 2 Am. Jur. 2d, Administrative Law § 241 (1962); have used such terms as “considerable deference”; Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 107, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979); “substantial deference”; Quern v. Mandley, 436 U.S. 725, 738, 98 S. Ct. 2068, 56 L. Ed. 2d 658 (1978); “great deference”; Van Wyk v. Bergland, 570 F.2d 701, 705 (8th Cir. 1978); and “most respectful consideration.” Faile v. South Carolina Employment Security Commission, 267 S.C. 536, 540, 230 S.E.2d 219 (1976); see also 2 Am. Jur. 2d, supra, § 241 (“highest respect”). This is particularly so when the agency interpretation can be said “to be a reasoned and supportable interpretation of the statute.” Levine v. Fairleigh Dickinson University, 646 F.2d 825, 831 (3d Cir. 1981), citing Whirlpool Corporation v. Marshall, 445 U.S. 1, 11, 100 S. Ct. 883, 63 L. Ed. 2d 154 (1980). Of course, “the weight [to be accorded an agency determination] in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all factors which give it power to persuade, if lacking power to control.” Skidmore s. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944).

The application of those tenets of statutory construction show that there can be no question that the administrator’s and the board’s decisions in this matter constitute a reasonable and supportable interpretation of this provision of the Connecticut Unemployment Compensation Act, particularly in light of both the legislative mandate of § 31-274 (c) creating a presumption of eligibility and the “in the opinion of the administrator” language of the disqualification provision, § 31-236 (2) (B). For these reasons alone, the determination that these claimants were eligible for unemployment compensation was entitled to significant deference by the trial court.

Further, as the trial court pointed out, the administrator and the board, when faced with this question of first impression, looked to the legislative history of the 1977 amendments to the Act, of which the “felonious conduct” language was one part, and particularly the remarks of Senator James J. Murphy, who had introduced the 1977 amendments that included this language on behalf of the joint standing committee on labor and industrial relations. In response to a question whether a definition existed for the newly added “felonious conduct” language for disqualification in the case of a discharge, Senator Murphy explained the amendment as follows: “Mr. President, what is intended by this language as far as putting it as to legislative intent, what we’re talking about here, we’re talking about conduct which an employee would be guilty of, which conduct would constitute a felony under our general judicial penalty or criminal statutes.” (Emphasis added.) 20 S. Proc., Pt. 4,1977 Sess., p. 1553. It is clear that he was referring to “our” Connecticut criminal statutes.

Moreover, in 1982, the General Assembly amended the same provision by adding as a disqualifying factor “participation in an illegal strike as determined by state or federal laws or regulations.” Public Acts 1982, No. 82-262, § 2, codified at General Statutes § 31-236 (2) (B). Significantly, the legislature made no amendment to the “felonious conduct” language of § 31-236 (2) (B). Although this 1982 amendment may indicate some legislative dissatisfaction with the administrator’s determination of these claimants’ eligibility for unemployment compensation, it must be pointed out that there is no indication that the legislature intended to alter the construction by the administrator and the board of the “felonious conduct” language. It is axiomatic that the legislature is presumed to know the existing law, including the interpretation given by the administrative agency charged with its enforcement and implementation. Moreover, it is a well settled canon of statutory construction that provisions that are reenacted into law, as was the “felonious conduct” language, continue to operate as they had prior to any amendment. An amendatory act presumably does not change the existing law any further than is expressly declared or necessarily implied. Robinson v. Unemployment Security Board of Review, supra, 21 n.6; Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978); State v. Fahy, 149 Conn. 577, 582, 183 A.2d 256 (1962), rev’d, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). That presumption has not been shown to be rebutted in this case. In addition, the legislature has also mandated that “[n]o part of [the Unemployment Compensation Act] shall be deemed repealed by subsequent legislation if such construction can reasonably be avoided.” General Statutes § 31-274 (b). Therefore, because the legislature has not expressly repealed the administrator’s construction of the phrase “felonious conduct,” that construction must be still given full effect.

Under the circumstances of this case as set out above, including the remedial purpose of the act, I agree with the trial court and would affirm the administrator’s decision, which is a reasonable and supportable one.

I would find no error and, therefore, I dissent.

       General Statutes § 31-236 (2) (B) was amended by Public Acts 1982, No. 82-262, and now reads in pertinent part: “An individual shall be ineligible for benefits ... if, in the opinion of the administrator, he has been discharged or suspended for felonious conduct . . . repeated wilful misconduct in the course of his employment, or participation in an illegal strike as determined by state or federal laws or regulations . . . . ”

       Title 18 U.S.C. § 1918 reads in pertinent part: “Whoever violates the provision of Section 7311 of Title 5 that an individual may not accept or hold a position in the Government of the United States ... if he—
      “(3) participates in a strike, or asserts the right to strike, against the Government of the United States . . . shall be fined not more than $1,000 or imprisoned no more than one year and a day, or both.”
      Title 18 U.S.C. S 1 reads in pertinent part: “Notwithstanding any Act of Congress to the contrary:
      “(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.”
      Title 5 U.S.C. § 7311 reads in pertinent part: “An individual may not accept or hold a position in the Government of the United States . . . if he—
      “(3) participates in a strike, or asserts the right to strike, against the government of the United States . . . .”

       Senator James J. Murphy, who introduced the bill containing the felonious conduct provision on behalf of the joint standing committee on labor and industrial relations, stated: “Mr. President, what is intended by this language as far as putting it as to legislative intent, what we’re talking about here, we’re talking about conduct which an employee would be guilty of, which conduct would constitute a felony under our general judicial penalty or criminal statutes.” 20 S. Proc., Pt. 4, 1977 Sess., p. 1553.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. John Falcon
    (10662)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued April 9
    decision released July 2, 1985

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, -was Dominick J. Galluzzo, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this criminal appeal is whether there is a constitutional right to counsel once extradition proceedings have been instituted. The defendant, John Falcon, was indicted for murder in violation of General Statutes § 53a-54 (a). The trial court accepted a jury verdict finding the defendant guilty as charged, and he has appealed. We find no error.

The jury could reasonably have found the following facts. On June 24, 1979, Edward Moran was stabbed to death in an abandoned building in Bridgeport. He had been tied to a bed that was then set on fire.

The defendant was first apprehended by the police on the day of the crime when he was trying to sell the victim’s car for $150. The defendant had previously been sought by the police with respect to an unrelated crime for which the police had an outstanding warrant. Upon interrogation the defendant gave the police two statements, neither of which was directly incriminatory. The police turned the defendant over to the United States army when they discovered that he was absent without leave.

Further inquiries led the police again to suspect that it was the defendant who had slain Moran. An arrest warrant charging the defendant with murder was obtained, and proceedings to extradite him from New Jersey were initiated. The defendant waived extradition and was returned to police headquarters in Bridgeport on September 1,1979. There the defendant gave the police a written statement admitting that he had stabbed Moran.

At the trial, the court permitted the state, over the defendant’s objection, to introduce into evidence all the statements that he had made to the police. The defendant had unsuccessfully challenged their admissibility at a pretrial hearing in which he argued that the statements were not voluntary for a number of reasons, including the absence of counsel.

The trial court also permitted the state to introduce photographic evidence that showed not only the scene of the crime but also the body of the victim. The defendant duly objected that this evidence should have been excluded as inflammatory and unnecessary, but his objection was overruled.

The defendant’s appeal from his conviction for murder raises two issues. The defendant argues that: (1) his statements were inadmissible because they were secured in violation of his constitutional right to counsel under the sixth amendment to the United States constitution as applied to the states through the fourteenth amendment and under article first, § 8, of the Connecticut constitution; and (2) the photographs of the victim were inadmissible because they were so inflammatory as to prejudice the defendant’s due process right to a fair trial.

I

The defendant’s challenge to the admissibility of his statements rests on the proposition that the statements were made after the commencement of adversary judicial criminal proceedings. The defendant does not claim any violation of his fifth amendment right to counsel during custodial interrogation under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Relying instead on the sixth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution, he argues that it was improper to elicit self-incriminating evidence in the absence of counsel because formal criminal proceedings had been commenced against him either upon the issuance of an arrest warrant or upon the initiation of extradition proceedings. We disagree.

We have consistently held that a defendant’s right to counsel under the sixth amendment or its state constitutional counterpart arises only “ ‘at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information or arraignment.’ Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).” State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983); State v. Ledbetter, 185 Conn. 607, 609, 441 A.2d 595 (1981); State v. Packard, 184 Conn. 258, 267, 439 A.2d 983 (1981); see also State v. Boulay, 189 Conn. 106, 112-13, 454 A.2d 724 (1983). The United States Supreme Court has recently reiterated this formulation and the rationale behind it. “[0]ur conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings ‘is far from a mere formalism.’ Kirby v. Illinois, supra, 406 U.S., at 689. It is only at that time ‘that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’ Ibid.” United States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984); see State v. Vitale, supra, 233.

Following the initiation of the adversarial process, the defendant is entitled to the presence of counsel at certain crucial proceedings, including interrogation. Brewer v. Williams, 430 U.S. 387, 401, 97 S. Ct. 1232, 51 L. Ed. 2d 424, reh. denied, 431 U.S. 925, 97 S. Ct. 2200, 53 L. Ed. 2d 240 (1977); Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); see State v. Vitale, supra, 231; State v. Jones, 187 Conn. 504, 506, 446 A.2d 1080 (1982). Resolution of the defendant’s claim that he was entitled to counsel at his interrogation thus depends upon whether either the issuance of an arrest warrant or the initiation of extradition, both of which occurred prior to his interrogation, can be said to have commenced formal adversarial judicial proceedings.

The defendant’s first claim, which focuses on the issuance of an arrest warrant, is foreclosed by State v. Vitale, supra, 231-33. There we held that an arrest, whether or not accompanied by a warrant, does not mark the start of adversarial judicial proceedings.

The defendant maintains that Vitale should not control for two reasons. First, he asserts that Vitale is distinguishable because the defendant in that case was arrested for a crime unrelated to the one for which he was eventually convicted. Our holding in Vitale, however, did not rely on the ancillary nature of the arrest. The opinion is unequivocal in espousing the position, shared by other courts, that an interrogation following an arrest, but prior to arraignment or indictment, does not call into play the sixth amendment right to counsel. State v. Vitale, supra, 232-33; see, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984); United States v. Guido, 704 F.2d 675, 676 (2d Cir. 1983); United States v. Duvall, 537 F.2d 15, 20-22 (2d Cir.), cert. denied, 426 U.S. 950, 96 S. Ct. 3173, 49 L. Ed. 2d 1188 (1976); United States v. Anderson, 575 F. Sup. 31, 33-34 (S.D.N.Y. 1983); State v. Smith, 209 Neb. 86, 87, 306 N.W.2d 181 (1981); State v. Judge, 100 Wash. 2d 706, 714, 675 P.2d 219 (1984); cf. O’Hagan v. Soto, 725 F.2d 878, 879 (2d Cir. 1984); United States ex rel. Robinson v. Zelker, 468 F.2d 159, 161 (2d Cir. 1972), cert. denied, 411 U.S. 939, 93 S. Ct. 1892, 36 L. Ed. 2d 401 (1973). In the alternative, the defendant contends that we should reconsider our position in Vitale, because in this state, unlike other jurisdictions, the state’s attorney is a member of the judicial branch, so that a prosecutorial request for an arrest warrant in Connecticut arguably signals the commencement of “judicial” proceedings. We are not persuaded by this argument. Neither the request of a state’s attorney, nor the action of a court in granting that request, converts an arrest warrant into an official accusation signaling the state’s commitment to prosecute. Cf. Lomax v. State, 629 F.2d 413, 416 (5th Cir. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1712, 68 L. Ed. 2d 205 (1981). In sum, the defendant’s interrogation in the absence of counsel following the issuance of a warrant for his arrest did not violate his sixth amendment right to counsel.

The defendant’s principal contention is that formal adversarial proceedings were initiated by the commencement of the extradition process. The state obtained a warrant for the defendant’s arrest on August 29, 1979. Subsequently, the defendant was arrested in New Jersey and charged with being a fugitive from justice from the state of Connecticut. A hearing was held in New Jersey on August 31, 1979, at which the defendant was informed of the charges against him in Connecticut, and of his rights to formal extradition proceedings and to contest extradition. The defendant agreed to waive extradition and to return to Connecticut.

At the time the state of Connecticut initiated the extradition process, it had not yet formally charged the defendant with murder. Since the defendant was not indicted by a grand jury until October 10, 1979, the charges upon which he was arrested in New Jersey were simply those contained in the information attached to the August 29,1979 arrest warrant. The respective positions of the state and the defendant were thus no different when extradition was initiated than when the arrest warrant was issued.

The question before us is whether extradition itself triggers so critical a confrontation between an accused and a prosecutor that counsel is constitutionally required for that reason alone. Contrary to the defendant’s argument, the hearing at which he waived formal extradition was not akin to an arraignment at which he would have been entitled to counsel. Hamilton v. Alabama, 368 U.S. 52, 54-55, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961). At an arraignment, a defendant is advised of the charges against him and enters a plea. Practice Book § 643. By contrast, at an extradition hearing, a defendant is not asked to plead or to make any other decisions that could affect his right to a fair trial. See United States v. Gouveia, supra, 188-89; Gerstein v. Pugh, 420 U.S. 103, 122-23, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The defendant’s extradition hearing was, of course, procedurally uneventful largely because he waived extradition, but most courts in other jurisdictions have held that even proceedings contesting extradition are not a “critical stage” in the prosecution requiring the presence of counsel. See, e.g., United States ex rel. Calhoun v. Twomey, 454 F.2d 326, 328 (7th Cir. 1971); Dunkin v. Lamb, 500 F. Sup. 184, 187 (D. Nev. 1980); Utt v. State, 293 Md. 271, 286, 443 A.2d 582 (1982); Reeves v. Cox, 118 N.H. 271, 276, 385 A.2d 847 (1978); but see State v. Mollohan, 272 S.E.2d 454, 457 (W. Va. 1980); see generally comment, “An Indigent Accused Does Not Have a Constitutional Right to Appointed Counsel at Extradition Hearings: An Analytical Approach,” 13 U. Balt. L. Rev. 74, 78 (1983). A hearing contesting extradition is only a summary proceeding, limited to determining whether the necessary documents are in order, whether the petitioner has been charged with a crime, is the person named in the extradition request and is a fugitive from justice. See Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978); Barrila v. Blake, 190 Conn. 631, 634, 461 A.2d 1375 (1983). Such a hearing is not “the kind of preliminary inquiry traditionally intervening between the initial arrest and trial.” Michigan v. Doran, supra, 288.

We conclude that the trial court did not err in admitting statements made by the defendant following the issuance of a warrant for his arrest and his waiver of extradition. “Because the statements were taken prior to the commencement of adversary judicial criminal proceedings we find no merit in the defendant’s sixth amendment claim.” State v. Jones, supra, 506.

II

The defendant’s second claim of error concerns the admission into evidence over his objection of four photographs and four slides. The photographs depict the scene of the crime. They show the victim’s body and the appearance of the room in which it was discovered following the fire. The slides depict the autopsy of the victim. The defendant argues that the pictures were gruesome and should not have been admitted into evidence because they were unnecessary, cumulative and prejudicial. We disagree.

The principles governing the admission of potentially inflammatory photographic evidence are clear. “As this court has stated on a number of occasions, we adhere to the general rule that photographs which ‘have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry’ are not rendered inadmissible simply because they may be characterized as ‘gruesome.’ . . . When, however, an initial determination is made by the trial court that such photographs may have the tendency to prejudice or inflame the jury, the admissibility of such evidence is dependent upon the trial court’s determination as to whether their value as evidence outweighs their possible prejudicial effect. . . . Since the trial court exercises its broad discretion in such circumstances, its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown.” (Citations omitted.) State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see State v. DeJesus, 194 Conn. 376, 381-82, 481 A.2d 1277 (1984); State v. Haskins, 188 Conn. 432, 452, 450 A.2d 828 (1982); State v. Smith, 174 Conn. 118, 122-23, 384 A.2d 347 (1977).

We have consistently rejected challenges to photographic evidence on the grounds of insufficient evidential value. State v. DeJesus, supra, 385; State v. Bember, 183 Conn. 394, 408 n.5, 439 A.2d 387 (1981); State v. Piskorski, supra, 701. The issue is not whether the pictures were absolutely necessary to the prosecution’s case but whether they were relevant. State v. DeJesus, supra, 381; State v. Piskorski, supra, 701. The trial court ruled the pictures relevant on the issue of intent. “ ‘Intent is a mental process which ordinarily can be proven only by circumstantial evidence. An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’ ” (Citations omitted.) State v. DeJesus, supra, 383-84, quoting State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982). In this case, although there was other evidence describing the scene of the fire and the wounds inflicted on the victim, we cannot conclude that the trial court erred in concluding that the photographs were probative and not merely cumulative.

The trial court also concluded that the probative value of the pictures on the issue of intent outweighed their potential for prejudice. “ ‘[T]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.’ ” State v. Smith, 185 Conn. 63, 88, 441 A.2d 84 (1981), quoting State v. Piskorski, supra, 701-702. Although the proper balance in this case is a close question, we cannot find an abuse of discretion in the trial court’s decision to admit the pictures into evidence. See State v. Piskorski, supra, 701.

There is no error.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . . ”

       Because the defendant has proffered no argument that the state constitutional provision governing the right to counsel differs in any salient form from that contained in the United States constitution, we analyze the defendant’s state and federal claims together. Reference throughout this opinion to the “sixth amendment” should be construed to incorporate both claims.

       The defendant was also advised that he had the right, under New Jersey law, to be represented by counsel at this and all other stages of the extradition process. See N.J. Stat. Ann. § 2A:160-18 (West 1971).

       At the time in question, General Statutes § 54-45 required a grand jury indictment for the crime of murder.

       The defendant was arrested on several charges in addition to the murder for which he was eventually indicted.

       Even though extradition is not itself a “critical stage” requiring the presence of counsel, the filing of formal charges may in certain circumstances be a prerequisite for the initiation of extradition. See General Statutes §§ 54-159, 54-179 (c). In that situation, the defendant arguably would have a cognizable claim for the presence of counsel at an interrogation following the initiation of extradition proceedings.


text:
    State of Connecticut v. Luis Rivera
    (12230)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued May 3
    decision released July 2, 1985

      Sue L. Wise, with whom, on the brief, were Joseph G. Bruckmann and Elizabeth M. Inkster, for the appellant (defendant).

      Thomas V. O’Keefe, Jr., assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is the determination of the proper forum in which to consider the defendant’s claim that his robbery conviction must be set aside because of ineffective assistance of counsel. The defendant, Luis Rivera, was charged in a substitute information with having committed robbery in the first degree in violation of General Statutes § 53a-134 (a) (4); criminal attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4); conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4); and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123. After a trial to a jury, he was found guilty of all of the charges except that of larceny. He appeals from the judgment convicting him of these crimes and sentencing him to an effective sentence of five to ten years.

The defendant’s conviction arose out of the following facts. Three young men were returning home from their jobs at a restaurant in Wallingford when the moped on which two of them were riding broke down. The other young man was on foot. While they waited for help, a red station wagon drove up and stopped. The passenger in the car first asked for directions and then proceeded to threaten the men and to demand their money. When, after some hesitation, the victims complied with this demand, the car drove off. Although the incident occurred at night, the area was brightly lit and the victims noted the license plate of the car. After making a timely report to the police, the victims were able to identify the car used in the crime when the police, shortly thereafter, located the car outside a Meriden after-hours bar. The car, which had been stolen, was later determined to contain a fingerprint of the defendant. Each of the three victims, on the basis of independent photographic arrays, identified the defendant as the person who had taken their money. Each of the victims also identified the defendant in court.

The defense offered at the trial was one of alibi. Several witnesses testified that the defendant was at the after-hours club at the time of the crime, and that he was under the influence of drugs and alcohol throughout that night. In addition, the defense sought to undermine the credibility of the witnesses presented by the state.

The defendant’s only claim on this appeal is that he was denied his constitutionally guaranteed right to effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution and of article first, § 8, of the Connecticut constitution. It is undisputed that the constitutional right to counsel to which every person accused of a crime is entitled is a right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. Gregory, 191 Conn. 142, 143, 463 A.2d 609 (1983); State v. Scielzo, 190 Conn. 191, 205-206, 460 A.2d 951 (1983). The defendant alleges that trial counsel’s conduct of his defense constituted ineffective assistance in five respects: failure to pursue pretrial suppression of photographic identifications by two of the victims; failure to object to hearsay testimony by the victims; failure to object to expert testimony about the defendant’s fingerprint; failure to object to inflammatory cross-examination of one of the defendant’s alibi witnesses; and prejudicial direct examination of another of the defendant’s alibi witnesses.

The test that measures ineffective assistance of counsel requires a defendant to make two showings, that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel’s lack of competence contributed to the defendant’s conviction. State v. Tirado, 194 Conn. 89, 91-92, 478 A.2d 606 (1984); State v. Gregory, supra, 143-44; State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983); see Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As we have repeatedly held, this test is difficult to meet on the face of an appellate record because such a record rarely reveals the strategic reasons behind the actions taken or not taken by trial counsel. For that reason, we have with increasing frequency declined to consider such claims on direct appeal, suggesting instead that their merits be addressed by recourse to habeas corpus. See, e.g., State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1239 (1985); State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984); State v. Tirado, supra, 92-93.

Defendants have been faced with a quandary about the proper way to pursue claims for ineffective assistance of counsel. On the one hand, a direct appeal on such a claim is almost always an exercise in futility. On the other hand, failure to take a direct appeal runs the risk of potential conflict with the limited authority of trial courts to hear petitions for habeas corpus. This court has repeatedly emphasized that “[a] petitioner seeking to raise federal constitutional claims in a collateral proceeding must first allege and establish by a preponderance of the evidence that he did not deliberately bypass the orderly procedure of direct appeal.” Paulsen v. Manson, 193 Conn. 333, 337, 476 A.2d 1057 (1984); Morin v. Manson, 192 Conn. 576, 579, 472 A.2d 1278 (1984); McClain v. Manson, 183 Conn. 418, 433, 439 A.2d 430 (1981); Blue v. Robinson, 173 Conn. 360, 369-70, 377 A.2d 1108 (1977). “The deliberate bypass rule serves two important functions: (1) it encourages a litigant to have all constitutional claims resolved in a single proceeding economizing the time and resources of all concerned parties and bringing the case to a conclusion; and (2) it prevents a prisoner from deliberately deferring his claims of unlawful confinement until a time when a new trial, if required as a result of the collateral proceeding, would be, for all practical purposes, impossible.” Paulsen v. Manson, supra, 337-38.

We decide today that the deliberate bypass rule should be relaxed in cases in which the sole claim for relief from a criminal conviction is a claim of ineffective assistance of counsel. For such cases, immediate access to habeas corpus proceedings will in fact accomplish the purposes of the deliberate bypass rule. It will economize judicial resources by enabling the defendant’s claim to be heard in a single forum that has the capacity to resolve the claim once and for all. It will enable the claim to be heard more, rather than less, expeditiously. For these reasons, we hereby announce that habeas corpus is the preferred route for review of convictions challenged solely on the ground of inadequate assistance of counsel. Before the trial court entertains a habeas corpus petition, however, it should ascertain, on the record, that the defendant knowingly, voluntarily and intelligently waives the right to appeal his conviction directly.

In accordance with this new procedure, we decline to find reversible error in the defendant’s claim that he was denied adequate assistance of counsel at his trial, and remit him to whatever relief may be afforded to him upon a petition for habeas corpus. On the appellate record presently before us, we can only speculate why trial counsel chose to conduct the defendant’s defense as he did. It may well be, for example, that further inquiry into photographic identifications would not have been fruitful after the unsuccessful challenge of the one photographic identification that was fully examined in a suppression hearing. Other trial decisions may have reflected a deliberate effort to minimize the deleterious effect of potentially damaging evidence. We note that the trial court, at the time of the defendant’s sentencing, expressly stated that defense counsel “has done the very best he can do with the facts and situation that was presented to him.” The trial court’s view of the strength of the state’s case against the defendant is corroborated by the absence of any claim, in this court, that the evidence against the defendant was insufficient to sustain his convictions.

There is no error.

In this opinion the other judges concurred.

       Whether the deliberate bypass rule should be relaxed in cases where inadequate assistance of counsel is not the sole issue is a question we need not decide at this juncture. When the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessary to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on a petition for habeas corpus.


author: Arthur H. Healey, J. Peters, C. J., with whom Santaniello, J., Shea, J.,

text:
    William H. X. Taylor v. Carl Robinson, Warden
    (11947)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 2
    decision released July 2, 1985

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (respondent).

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellee (petitioner).
   Arthur H. Healey, J.

The petitioner, William H. X. Taylor, instituted this habeas corpus proceeding against the respondent commissioner of correction, seeking credit under General Statutes § 18-98 for ninety-seven days which he spent confined in New York awaiting extradition to Connecticut. The trial court granted the writ under § 18-98 and ordered the commissioner to credit the petitioner’s Connecticut sentence with the ninety-seven days. The commissioner has appealed.

Certain background circumstances should be set out. On August 29,1979, Taylor was arrested in New York as a fugitive from justice in Connecticut on the basis of an arrest warrant charging him with robbery in the first degree and larceny in the second degree in connection with a New Haven bank robbery. He was incarcerated in New York without bail from August 29, 1979, to December 3, 1979, during which time there were extradition proceedings. On November 5, 1979, the governor of New York issued an extradition warrant. On December 3,1979, Taylor waived extradition and was returned that day to Connecticut, where he was arrested, arraigned and remanded in lieu of bond. He was tried and convicted on the bank robbery charge and on October 3,1980, was given an effective sentence of not less than ten years nor more than twenty years. From the time of his return to Connecticut through the time that sentence was imposed, the petitioner was incarcerated because of his failure to obtain bail. At his sentencing on October 3, 1980, the commissioner credited him with the number of days he spent in confinement in Connecticut after his return from New York on December 3, 1979. The commissioner, however, refused to give credit for the ninety-seven days that Taylor was confined in New York from August 29, 1979, to December 3, 1979.

On appeal from the trial court’s reversal of his determination, the commissioner claims that the trial court erred: (1) in concluding that General Statutes § 18-98 authorizes a credit on the petitioner’s Connecticut sentence for the time for which he was incarcerated in New York awaiting extradition; (2) in concluding that the Connecticut charges were the sole reason for the petitioner’s incarceration in New York; and (3) in allowing the petitioner himself to testify about the “official circumstances” of his arrest and incarceration in New York.

We agree with the commissioner’s claim that it was error for the trial court to conclude that General Statutes § 18-98 mandates that the commissioner grant the petitioner the credit on his Connecticut criminal sentence for that time he was confined in New York awaiting extradition. Our recent decision in Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985), requires this result.

Because § 18-98 does not authorize the credit sought by the petitioner, the trial court’s implicit conclusion that he was held in New York solely pursuant to a Connecticut warrant requires no different conclusion; see Johnson v. Manson, supra; and, therefore, we need not reach any other claim of error properly raised by the commissioner.

Finally, we address a matter which developed in oral argument and about which counsel admitted there was no evidence or claim made at the trial. This involved instances where the commissioner apparently gave “credit” on a Connecticut criminal sentence for time spent in confinement while awaiting extradition in another state. Counsel for the commissioner acknowledged that the commissioner had given “credit” up to as much as ten or twelve days. He specifically said, however, that all of these “credits” had been granted where the persons involved had in fact either been already ordered extradited to Connecticut or had already waived extradition to return to this state, and, therefore, these persons were then immediately available to be returned here. The “credit” was given in those cases, he explained, because Connecticut authorities were not in the other state at those particular times, and the period for which the “credit” was given was for that period that was necessarily required for travel to that jurisdiction in order to return such persons to Connecticut. In these cases it is apparent that those persons were immediately available to be returned to this state, if Connecticut authorities were on the scene to do so. Although such credit is not statutorily authorized by § 18-98; Johnson v. Manson, supra; the commissioner has suggested that to credit such time is a fair accommodation under those circumstances. Some jurisdictions have granted credit for time when a prisoner was held in unnecessary custody in another jurisdiction; see generally Williams v. State, 280 N.W.2d 406, 408 (Iowa 1979); and we note, without deciding, that the commissioner’s “crediting” of travel time may be arguably analogous. We also reserve for another day, when it is properly before us, our views on any claim regarding an extraditee whose detention in another jurisdiction has been prolonged by unnecessary delay caused by the failure of Connecticut authorities to return the extraditee when he is available to be returned to Connecticut. We reiterate unequivocally, however, that the commissioner cannot provide any such “credit” under the authority of § 18-98.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the writ of habeas corpus.

In this opinion Dannehy, J., concurred.

Peters, C. J., with whom Santaniello, J.,

joins, concurring. I write separately because I am wholly persuaded, on the merits, by Justice Shea’s dissenting opinion in Johnson v. Manson, 196 Conn. 309, 328, 493 A.2d 846 (1985). I do not understand how the majority holding can fail to chill the right of a person accused of a crime to contest his extradition to Connecticut. The commissioner of correction does not believe that this is what the Connecticut legislature intended to do, and neither do I. I agree with Justice Shea that General Statutes § 18-98, as interpreted by the majority in Johnson, violates constitutional guarantees of due process and equal protection of the laws.

Nevertheless, I concur in the result reached by the majority here because I agree that this case is controlled by Johnson v. Manson. “Though blind adherence to precedent is of no value, the necessity of certainty and continuity in the law dictates that ‘a court should overrule its own precedents for only the most compelling reasons. Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955).’ Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 570, 409 A.2d 1020 (1979).” State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984). A change in the constituency of this court is not a sufficiently compelling reason to warrant departure from a recently established construction of a state statute.

Because the majority holding in Johnson v. Manson rests squarely on construction of the language of § 18-98, it is now up to the legislature to decide whether this court is correct in its view of the credit properly to be afforded pretrial detainees held in other jurisdictions. In light of the seriousness of the issues raised, I further urge the legislature, in the near future, to reexamine in their entirety the principles that should govern credits for pretrial incarceration. As counsel for the commissioner of correction noted in oral argument, effective operation of the criminal justice system depends upon having clear rules about how long a prison sentence a convicted criminal must serve.

For the reasons stated above, I concur in the judgment of the court.

Shea, J.,

dissenting. It is clear that the dispositive issues in this appeal are the same as those presented in Johnson v. Manson, 196 Conn. 309, 328, 493 A.2d 846 (1985). The observations of the majority opinion concerning the custom of the commissioner in crediting prisoners for time served in jails outside this state after extradition is waived or ordered is a further exam-pie of a departure from the literal reading of General Statutes § 18-98, allowing credit only for time “spent in a community correctional center,” that the opinion purports to adopt. The reservation in the opinion “for another day” of the question, whether a prisoner whose detention in another state has been prolonged by failure to return him to this state promptly after extradition has been waived or ordered, indicates a recognition by the majority, despite some equivocation, of the necessity of giving § 18-98 a more expansive reading where considerations of natural justice, constitutional or otherwise, require. I perceive no distinction of substance between those considerations in the context of unreasonable delay in returning a prisoner to this state, which apparently would induce the majority to modify the narrow interpretation of the statute adopted in Johnson, and the concerns for “equal protection of the laws” presented in this case.

Accordingly, I adhere to the views expressed in my dissenting opinion in Johnson and also dissent from the judgment of the court in this case. See Johnson v. Manson, supra, 328-41 (Shea, J., dissenting).

       General Statutes § 18-98 entitled, “Confinement where bail unobtainable: Presentence confinement credit prior to July 1,1981,” provides: “Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned for an offense committed prior to July 1, 1981, is entitled to commutation of his sentence by the number of days which he spent in a community correctional center from the time he was denied or was unable to obtain bail to the time he was so imprisoned. The commissioner of correction shall, if such person has conformed to the rules of the institution, credit such person with the number of days to which the supervising officer of the correctional center where such person was confined while awaiting trial certifies such person was confined between the denial of bail to him or his inability to obtain bail and his imprisonment.”

       On October 3,1980, Taylor was also sentenced on another information for a term of imprisonment of not less than two and one-half years and not more than five years for the crimes of burglary in the third degree and larceny in the second degree. These sentences were ordered to be served concurrently with the sentence imposed the same day for robbery in the first degree.

       In his brief, the commissioner claims that the denial of credit under General Statutes § 18-98 for time spent in confinement awaiting extradition in a foreign jurisdiction does not violate equal protection guarantees under the United States or Connecticut constitutions. In Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985), where that claim was properly before us, we resolved it against the petitioner in that case. We note that as in Johnson v. Manson, supra, there is no claim that the petitioner’s confinement in New York was due to indigency.
      The petitioner, in his brief, asserted that the equal protection issue should not be considered by us, not only because the trial court never reached that question, but also because there are no factual findings as to classifications of persons affected by § 18-98 so as to enable us to decide an equal protection issue. At oral argument his counsel stated that he was withdrawing this assertion in the event we found error, and if that occurred, he suggested that we could remand this case to the trial court “for further articulation” and a decision on the merits of the constitutional claims. We decline to do so because Johnson v. Manson is dispositive of this case, particularly in the absence of any claim of indigency.

       At oral argument, counsel for the commissioner stated that the petitioner Taylor had been given the ninety-seven day “credit” which is at issue, had been released on parole, and is under supervision as a parolee. He informed us that, as a practical matter, in the event that we found error, the ninety-seven days would probably be added to his parole time and he would be held under the original mittimus for that additional period. In the event he concluded his “extended” parole time without incident, he would, we were informed, be discharged from parole.
      One on parole may, of course, apply for the grant of a writ of habeas corpus. Jones v. Cunningham, 371 U.S. 236, 238-42, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); In re Catalano, 29 Cal. 3d 1, 8, 623 P.2d 228, 171 Cal. Rptr. 667 (1981); see United, States ex rel. DeFillo v. Fitzpatrick, 378 F.2d 85, 87 (2d Cir. 1967).

       Objectively read, this opinion does not depart from our construction of General Statutes § 18-98 in Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985). We should point out that just as “[h]ard questions cannot be avoided by a hypothetical reshuffling of the facts”; Trimble v. Gordon, 430 U.S. 762, 774, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977); neither should hard questions be created, as the dissenting opinion appears to do, by any hypothetical reshuffling of the facts in a given case.

       See footnote 5 of the majority opinion, supra.


author: Santaniello, J.

text:
    Bernard N. Yanow v. Teal Industries, Inc., et al.
    (12347)
    Peters, C. J., Dannehy, Santaniello, Callahan and Stoughton, Js.
    Argued April 11
    decision released July 2, 1985

      Daniel Shepro, with whom, on the brief, was Lorraine W. Osborne, for the appellant (plaintiff).

      Gordon A. Evans, with whom, on the brief, was Richard H. Lamere, for the appellees (defendants).
   Santaniello, J.

The narrow question presented by this appeal is whether the trial court abused its discretion in denying the plaintiff’s timely motion to open judgment. A complete recitation of the facts of this case, as contained in the trial court’s memorandum of decision, is unnecessary to our consideration of the issues raised on appeal. For the purpose of our limited review, the following facts are relevant: The plaintiff, Bernard N. Yanow, owned approximately 10 percent of the outstanding stock of the Mallard Manufacturing Company. In 1971, Mallard merged with Teal Industries, Inc. (Teal). Shortly after the merger, the plaintiff brought suit in four counts against Teal and Martin B. Gentry, Jr., an officer and director of Teal, seeking nullification of the merger, an accounting, and payment of damages.

The trial court, Mulvey, J., granted summary judgment in favor of the defendants on all four counts and the plaintiff sought review of that order in this court. We found error in the judgment on appeal and remanded the case for trial on counts one and four. Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). Prior to trial, the court permitted the plaintiff to amend his complaint by adding an additional fifth count not originally alleged.

A trial on the merits was held before Hon. John R. Thim, state trial referee. On May 5, 1983, Referee Thim issued an exhaustive eighty page memorandum of decision in which he found for the defendants on all counts. The plaintiff thereupon filed a motion to open judgment. Although the plaintiff originally prepared the motion on May 19, 1983, there is no evidence that the clerk’s office received it at that time. The plaintiff was informed that the motion had not been docketed by the clerk’s office a few weeks later, and refiled the motion, accompanied by the entry fee, on June 29, 1983. In a memorandum of decision on the motion, dated September 7, 1983, Referee Thim found that “[o]n May 19, 1983 the plaintiff prepared the motion to open judgment. It is uncontested that counsel for the defendants, in fact, received a copy of the plaintiffs motion. For reasons which are unknown, the original copy of the motion was never entered on the docket by the Clerk of the Court. Plaintiff’s counsel concedes that the $15.00 entry fee was not forwarded to the Clerk with the motion at that time. Notwithstanding the fact that the motion to open the judgment was never entered on the docket, the undersigned proceeded with a hearing on the motion.” Referee Thim then evaluated the pertinent evidence, and reviewed his memorandum of decision and the arguments of counsel on the motion, and concluded “that the judgment should not be opened.”

On September 7,1983, the defendants requested that the court clarify in its memorandum of decision on the motion to open whether the motion was filed on May 19, 1983, or June 29, 1983. If the motion were found to have been filed on May 19,1983, within twenty days of the judgment of May 5,1983, it would stay the appeal period. Practice Book § 3007. In response to the defendants’ request the court stated that “[it] considers plaintiff’s Motion to Open Judgment to have been filed subsequent to the expiration of twenty (20) days after notification of the court’s judgment on May 5,1983.” The plaintiff was therefore barred from filing a direct appeal.

On September 27,1983, the plaintiff appealed to this court from the May 5,1983 judgment and from the trial court’s denial of the motion to open. The defendants thereafter filed a motion to dismiss the appeal, which we granted as to the May 5 judgment only. The remaining question left for our resolution is whether the trial court abused its discretion in denying the motion to open judgment.

“ ‘A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).’ Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159 (1981)].” Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985).

We have carefully reviewed each claim raised by the plaintiff’s motion to open in light of the trial court’s thorough factual findings and legal conclusions. The plaintiff sets forth no new assertions, points to no new evidence, nor does he make any allegation that the legal conclusions reached by the trial court were erroneous. The motion to open merely reiterates facts and questions of law that the trial court had already specifically found in favor of the defendants. On this record we are unable to conclude that the trial court, in denying the motion to open judgment, acted beyond the scope of its discretion.

There is no error.

In this opinion the other judges concurred.

       “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.” General Statutes § 52-212a; Practice Book § 326.

       We note that, although the record before us is unclear as to precisely why the trial court clerk’s office did not enter the motion on the docket, the plaintiff’s failure to pay the filing fee would itself have rendered the motion invalid. See General Statutes § 52-259e; Van Mecklenburg v. Pan American Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985).

       We dismissed the plaintiffs appeal of the May 5 judgment as untimely. An appeal of a trial court decision must be taken within twenty days from issuance of notice of the judgment, but “if within the period of twenty days after the judgment was rendered . . . any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open judgment . . . the appeal may be filed within twenty days from the issuance of notice of the decision upon the motion ....’’ Practice Book § 3007. Since the trial court found that the motion to open was filed more than twenty days after the May 5 judgment was rendered, the plaintiff is precluded from appealing that decision.
      Although the plaintiff attempted to amend his appeal to include the question of whether the trial court erred in finding that the motion to open was filed June 29,1983, rather than May 19,1983, we dismissed the amended appeal as untimely. See Practice Book § 3062.


text:
    Dominic Maturo et al. v. Edward J. Gerard et al.
    (12291)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued February 7
    decision released July 2, 1985

      James M. S. Ullman, for the appellants (defendants).

      Herbert Watstein, with whom were William Wynne and, on the brief, Julia T. Bradley, for the appellees (plaintiffs).
   Santaniello, J.

This case is an action brought in two counts (1) to recover monies paid by the plaintiffs to the named defendant, Edward Gerard, obtained by him through fraud and misrepresentation, and (2) to set aside as fraudulent a conveyance of the family real estate by the named defendant to the codefendant, Helen Gerard, his wife. From a judgment granting relief to all the plaintiffs but one on both counts rendered by Hon. Roman J. Lexbon, state trial referee, the defendants have appealed.

The trial court could reasonably have found the following facts, which are set forth in the memorandum of decision. The defendant, Edward J. Gerard, became employed in 1971 by two partners, Dolce and Rhine-hart (hereinafter referred to as Dolce), as a salesman and messenger. His job was to collect delinquent accounts. About three months later, he became a full-time salesman. He was instructed to persuade people to invest money in what Dolce represented to be his present and contemplated business enterprises. The representation was that if each participant would invest a given amount in a lump sum, the return, payable in installments over time, would yield a substantial profit. The defendant received a salary plus a commission on every dollar invested in the Dolce enterprises. Dolce instructed him on how to conduct himself and what to say, and told him always specifically to represent himself as an agent for Dolce.

At this time, Dolce and Rhinehart owned and were operating two small food co-ops and were renting a small warehouse in connection with the merchandise for the co-ops. Dolce claimed ownership of or contemplated ownership in warehouses, a golf course, a fast food franchise, several mini plazas, a car wash, a carload of antifreeze bought for a “financial killing,” and an advertising enterprise. The defendant was instructed to use these various holdings in his sales pitch and he did make use of them while inducing individuals to invest money in Dolce’s “enterprises” which, in fact, aside from the co-ops and warehouse, did not exist. He made said claims to potential investors recklessly and on an unreasonable and groundless belief in their truth. At all times, the defendant represented that he was acting only as an agent for Dolce.

In spite of the aforementioned factors, the defendant made unqualified endorsements of Dolce and the phantom investment prospects, telling the plaintiffs that Dolce was a fine, honest man who offered these investment opportunities in order to help the working people. He further represented that Dolce was a genius with great goals, that his deals would pay much higher interest than a bank, and that the investments were stable and perfectly safe. Inducements were paid to investors for procuring new prospects and the defendant continually encouraged the plaintiffs to reinvest, always assuring them that things were going well.

Subsequently, in July, 1974, the entire scheme showed signs of failure. Dolce attempted to placate his investors by issuing dividend checks which were postdated to November 1,1974. The Dolce checks given to the investors in July, 1974, were dishonored in November, 1974, and Dolce declared bankruptcy. The defendant then gratuitously transferred his interest in the family real estate to his wife.

The trial court rendered judgment in favor of all plaintiffs except Frances Maturo to recover money damages as against the defendant Edward while holding for the defendant Helen on the first count. The court further rendered judgment in favor of all the plaintiffs except Frances Maturo on the second count, and set aside the conveyance of the real estate by the defendant to his wife, declaring it null and void and subject to attachments effected therein.

The defendants raise three claims on appeal, alleging that the trial court erred in finding (1) that the defendant Edward Gerard was guilty of fraudulent misrepresentation, (2) that the plaintiffs justifiably relied upon his representation, and (3) that the defendant’s transfer of real estate to his wife was a fraudulent conveyance. We find no error.

I

The defendants’ first claim is that the trial court erred in finding the defendant Edward guilty of fraudulent misrepresentation since he was acting for a disclosed principal and was personally unaware of any fraud.

“The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury. Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); Clark v. Haggard, 141 Conn. 668, [673,] 109 A.2d 358 (1954); Helming v. Kashak, 122 Conn. 641, 642, 191 A. 525 (1937); Bradley v. Oviatt, 86 Conn. 63, 67, 84 A. 321 (1912); Barnes v. Starr, 64 Conn. 136, 150, 28 A. 980 (1894).” Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981).

“Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact.” Hathaway v. Bornmann, 137 Conn. 322, 324, 77 A.2d 91 (1950). The trier of facts is the judge of the credibility of the testimony and of the weight to be accorded it. See DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978); see, e.g., Marko v. Stop & Shop, Inc., 169 Conn. 550, 555, 364 A.2d 217 (1975); Yale University v. New Haven, 169 Conn. 454, 463, 363 A.2d 1108 (1975). The trial court found that the defendant, acting as agent for Dolce, represented to the plaintiffs that they were, in fact, investing in a number of profitable enterprises which were enumerated and specifically identified. Most of the enumerated business ventures did not exist. The defendant took no action to identify their authenticity and made claims to potential investors recklessly and on an unreasonable and groundless belief in their truth. He made representations with the purpose of inducing the plaintiffs to act upon them. “We have had occasion to point out that where a defendant has special means of knowledge, and a plaintiff can under the circumstances attribute to the former accurate knowledge of what is represented, the plaintiff need not show the actual knowledge of the falsity of the representation. See Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346-47, 232 A.2d 307 (1967); Warman v. Delaney, 148 Conn. 469, 172 A.2d 188 (1961); see also, 37 Am. Jur. 2d, Fraud and Deceit § 201.” Miller v. Appleby, supra, 56. In considering the defendant’s personal liability for his statements, it matters not that these representations were made by the defendant in the course of his agency relationship so long as the defendant can be said to have made them in circumstances under which he was chargeable with knowledge of their falsity. “Where ... an agent . . . commits or participates in the commission of a tort, whether or not he acts on behalf of his principal . . . he is liable to third persons injured thereby.” Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975). Under the circumstances of this case, the trial court could justifiably find that the defendant was guilty of fraudulent misrepresentation despite his claim of ignorance.

II

The defendants’ second claim is that the court erred in finding that the plaintiffs justifiably relied upon misrepresentations of the defendant Edward. They claim that the plaintiffs knew of the speculative nature of the ventures and should have made their own investigation. The plaintiffs were simple working people with limited experience in financial matters. They were not knowledgeable in business transactions. The defendant offered inducements and held out the fact that he had even invested his own personal monies. The plaintiffs were led down the primrose path because of their belief in the truth and veracity of the defendant. He led them like the “Pied Piper” to the tune of his enthusiastic salesmanship into a venture of excitement and profit. As the trial court correctly found, the fact that the plaintiffs were not on equal footing with the defendant, and did not have equal access to the information about the scheme allowed them to rely on the defendant’s representations. Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 409, 456 A.2d 325 (1983).

III

The defendants’ third claim is that the trial court erred in setting aside the conveyance of real estate from the defendant to his wife as being fraudulent. “A person to whom the grantor was indebted and who wishes to avoid the conveyance has the burden of showing either (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligation or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983); Denison Development Co. v. Gunther, 189 Conn. 333, 335, 455 A.2d 1340 (1983); Molitor v. Molitor, 184 Conn. 530, 535-36, 440 A.2d 215 (1981). Since the plaintiff[s] can prevail if [they have] met [their] burden on either one of these tests, we need not consider them both.” (Emphasis added.) Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984). We conclude that there was sufficient evidence to support the trial court’s finding that “the conveyance was made with a fraudulent intent in which the grantee participated.”

The underlying facts are clear. The relationship between Edward and Helen was very close and harmonious. She frequently accompanied him when he promoted the pyramid scheme. She was aware that Edward had invested marital assets in the scheme and that the investment was in jeopardy during the summer of 1974. She further knew that postdated checks had been issued to investors and that Dolce was bankrupt. Knowing of Dolce’s bankruptcy and realizing that he was facing potential lawsuits from investors, Edward took steps to protect himself and the family’s joint assets. First, he destroyed all of his business papers relating to the Dolce operation. Helen knew about this action. Second, with Helen’s knowledge, he consulted with a lawyer about transferring his interest in the family residence to Helen to protect himself from potential claims. A short time later, a transfer was made by yet another lawyer to Helen, for which there was no consideration paid. The trial court properly concluded: “No credible explanation was advanced by Edward or Helen Gerard, or by anyone, as to why a transfer of his interest in the realty in issue was made at that particular time when he was faced with potential claims against him, without consideration of any kind.” The court further found that Helen was in full possession of her faculties at all times in her association with Edward and that “she saw what there was to be seen, heard what there was to be heard, sensed what there was to be sensed, and talked with her husband about matters which were happening around her and with respect to finances in which she had an interest and consequences which would affect her directly if claims were filed against her.” On the basis of the facts found, the court concluded that “the transfer of Gerard’s interest in the property in issue was fraudulent in that it was made to avoid the potential claims of those who were induced by Gerard to invest in the Dolce-Rhinehart fraudulent business scheme, and that the grantee, Helen Gerard, had full knowledge that said transfer was for that purpose.” The finding of fraudulent intent in which Helen Gerard participated was thus amply supported by the evidence.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are: Dominie and Frances Maturo, Donald and Adelie Volz, Leo and Claire Bisaillon, Joseph and Henrietta Lemieux, Ronald Apt, and Harold and Madeline Fish. The court found there was no evidence linking the defendant with the plaintiff, Frances Maturo, and thus, found for the defendants on her claims.

       Unless otherwise directed, the defendant refers to Edward.


author: Dannehy, J.

text:
    Eleanor Dugan v. William Milledge
    (12520)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued May 2
    decision released July 2, 1985

      Sheryl J. Sha’afi, for the appellant (plaintiff).

      Michael F. Romano, for the appellee (defendant).
   Dannehy, J.

This is an action by a tenant against a landlord pursuant to Public Acts 1983, No. 83-510 (General Statutes § Fla-lAa). The trial court, A. Aronson, J., sua sponte, dismissed the action for want of jurisdiction of the subject matter. The plaintiff has appealed.

The 1983 act begins with a provision that any tenant residing at property located in the judicial district of Hartford-New Britain, who claims that his landlord has failed to perform his legal duties, as required by § 47a-7 of the General Statutes, may, between January 1, 1984, and June 30, 1985, inclusive, institute an action in the Superior Court for such judicial district to obtain the relief authorized by the act. Section 2 of the act permits the tenant to institute the action by filing a complaint, under oath, with the clerk of the court. This section requires that the complaint shall allege: (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of § 47a-7 of the General Statutes; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. In addition, § 2 specifically requires that the complaint shall also allege that, at least five days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for the enforcement of the housing code or, if no housing code exists, of the public health code.

On April 6, 1984, the plaintiff filed her complaint in the Superior Court for the judicial district of Hartford-New Britain. The complaint alleged that the plaintiff (tenant) and the defendant (landlord) had entered into an oral lease for an apartment on Blue Hills Avenue in Hartford. The lease was for a term of one month, at an agreed monthly rental, payable on the first day of the month. General Statutes § 47a-3d. The plaintiff averred that the defendant was in violation of his statutory responsibility to put and keep her apartment in a fit and habitable condition. The complaint also alleged that on February 8,1984, the plaintiff made a complaint about the premises to the Hartford fair rent commission, and that this was at least five days before filing the action. The plaintiff did not and does not allege that the fair rent commission is the municipal agency responsible for enforcement of the housing code.

The matter was set down for hearing on April 23, 1984. The defendant did not appear. The position the trial court took on the matter, however, is disclosed in a colloquy between the court and counsel in connection with the allegations of the complaint. The trial judge properly observed that the complaint did not conform to the requirements of the act under which the action was instituted. He pointedly stated that the plaintiff, without apparent reason or excuse, failed to allege that she had made a complaint concerning the premises to the municipal agency in Hartford responsible for enforcement of the housing code at least five days prior to the date on which her complaint was filed. He inquired whether, upon the allegations of the complaint, the plaintiff could maintain an action under Public Acts 1983, No. 83-510. At the request of the plaintiff, the case was continued for one week. The next day, April 24,1984, the plaintiff amended her complaint to allege that on April 23, 1984, she made a complaint about the premises to the bureau of housing code enforcement of the city of Hartford. Upon the foregoing, which were all the facts material to the question of jurisdiction upon the complaint, the trial judge rendered judgment dismissing the action. The single question raised is whether the plaintiff can maintain this action despite her failure to make the complaint concerning the premises to the proper agency within the time allowed by Public Acts 1983, No. 83-510.

The title and stated purpose of Public Acts 1983, No. 83-510, show that the legislature deliberately intended to create a simple cause of action by which a tenant could seek a court order to enforce the housing code. The title of the act is “An Act Concerning Housing Code Enforcement by Individual Tenants” and the pertinent provision reads as follows: “The complaint shall also allege that at least five days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code.” One purpose of this provision is manifest. It is to enable the municipal agency responsible for the enforcement of the housing code to make the necessary investigations to determine the merits of the claim, and if an investigation reveals that the claim is meritorious, to testify for the tenant.

The plaintiffs cause of action was purely statutory. The requirement of notification to the housing code enforcement agency is not directory but mandatory. Compliance with this essential condition was a requisite for the court’s jurisdiction. General Dynamics Corporation v. Groton, 184 Conn. 483, 493, 440 A.2d 185 (1981). A condition precedent to the maintenance of the action required that the plaintiff, at least five days prior to the date on which she filed her complaint, make a complaint to the municipal agency responsible for the enforcement of the housing code. The allegation required by the act was a vital part of the plaintiff’s case. It went to the very existence of the action, which, in the absence of compliance with the requirements of the act, does not exist at all. State v. Aetna Casualty & Surety Co., 138 Conn. 363, 367, 84 A.2d 683 (1951); Crocker v. Hartford, 66 Conn. 387, 391, 34 A. 98 (1895); see Guilford Yacht Club Assn., Inc. v. Northeast Dredging, Inc., 192 Conn. 10, 13, 468 A.2d 1235 (1984).

The plaintiff does not contend that a complaint about the premises to the fair rent commission satisfied the requirements of the act. She claims that her complaint went through routine channels to the bureau of housing code enforcement. Yet she neither amended her complaint to allege timely notice to the correct agency nor adduced evidence that the claimed interagency referral had actually been made. Instead, she chose to rely on an amended allegation that she had made a complaint to the proper agency seventeen days after the date on which her complaint was filed. The act expressly provides the time in which the complaint concerning the premises shall be made. The time is fixed by the words “at least five days prior to the date on which the complaint is filed.” Thus, the condition precedent to an action under Public Acts 1983, No. 83-510, was not satisfied. When the lack of jurisdiction over the subject matter clearly appeared on the face of the record, a judgment of dismissal was properly rendered. The complaint as amended could not be subject to judgment pursuant to Public Acts 1983, No. 83-510.

There is no error.

In this opinion the other judges concurred.

       Public Acts 1983, No. 83-510, provides in pertinent part: “an act concerning HOUSING CODE ENFORCEMENT BY INDIVIDUAL TENANTS.
      “Section 1. (NEW) Any tenant residing at property located in the judicial district of Hartford-New Britain, who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 of the general statutes, may, between January 1,1984 and June 30,1985, inclusive, institute an action in the superior court for such judicial district to obtain the relief authorized by this act.
      “Sec. 2. (NEW) (a) The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of section 47a-7 of the general statutes; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least five days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located responsible for enforcement of the housing code or, if no housing code exists, of the public health code. The entry fee shall be twenty-five dollars. No recognizance or bond shall be required.
      “(b) Upon receipt of the complaint, the clerk shall promptly set the matter down for hearing to be held not more than fourteen days after the filing of the complaint, and shall cause a copy of the complaint and the notice of hearing to be sent separately by certified mail, return receipt requested, to (1) each landlord named in the complaint and (2) the director of the municipal agency in the municipality where the premises are located responsible for enforcement of the housing code or, if no housing code exists, of the public health code.”