author: Shea, J. Berdon, J.,

text:
    Scott Gardiner v. Conservation Commission of the Town of Waterford et al. Robert Fromer v. Reynolds Metals Development Company et al.
    (14387)
    (14396)
    Peters, C. J., Shea, Callahan, Covello and Beedon, Js.

      Argued January 15
    decision released May 12, 1992

      Ronald P. Sherlock, for the appellant in the first case (plaintiff Scott Gardiner).

      Robert Fromer, pro se, the appellant (plaintiff) in the second case).

      Grace M. Dodier, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin and Janet Brooks, assistant attorneys general, for the appellee in the first case (defendant commissioner of environmental protection).

      Thomas J. Londregan, for the appellee in both cases (defendant Reynolds Metals Development Company).

       The commissioner of environmental protection appeared in the trial court as a party in both appeals pursuant to General Statutes § 22a-43 (a). In this court, however, the commissioner presented argument and filed a brief only in the first case, Gardiner’s appeal.

   Shea, J.

In each of these cases, the plaintiff has appealed from the judgment of the trial court affirming the decision of the defendant conservation commission of the town of Waterford to grant the application of the defendant Reynolds Metals Development Company (Reynolds) to conduct regulated activities on land classified as wetlands within a tract of 188 acres proposed for a subdivision in order to create an industrial park. In the first appeal, the plaintiff, Scott Gardiner, who owns land adjoining the proposed development and is thus entitled to appeal pursuant to General Statutes § 22a-43, claims that the conditions attached to the permit granted by the commission provide for the ex parte submission by Reynolds of certain engineering data related to the propriety of issuing the permit, which he will have no opportunity to challenge, and that, therefore, his constitutional right to due process of law has been violated. In the second appeal, the plaintiff, Robert Fromer, who intervened in the proceedings of the commission by filing a “verified pleading” pursuant to General Statutes § 22a-19 (a) alleging the likelihood of adverse environmental effects from Reynolds’ proposal, has raised four issues: (1) whether he was entitled to raise issues other than those that concern the environment; (2) whether the commission properly found that Reynolds’ proposal would not have any adverse effect upon the wetlands area involved; (3) whether consideration of environmentally feasible alternatives was necessary; and (4) whether the trial court properly refused to consider the adequacy of the Waterford wetlands regulations for protecting the rights created by the environmental protection statutes, General Statutes §§ 22a-14 through 22a-20, and resolved certain issues relating to ecology on the basis of inexpert knowledge. We affirm the judgments.

There is no dispute about the facts as set forth in the trial court’s comprehensive memorandum of decision in each case. Reynolds applied to the commission pursuant to General Statutes § 22a-42a (c) for a permit to conduct regulated activities on .49 acres of the total 34.05 acres of wetlands included in the 188 acre tract of land, formerly the Waterford-New London airport, upon which an industrial park was to be located. The application sought to construct roadways across certain watercourses and wetlands, to establish sediment basins adjacent to wetlands, to install sewer and water lines under watercourses and to discharge storm water upon wetlands.

After a public hearing that occupied four sessions of the commission, the application was granted on December 21, 1989, to allow: (1) the construction of nine detention basins adjacent to wetlands and watercourses; (2) the discharge of storm water onto wetlands and watercourses; (3) road crossings for Jordan Brook and No Name Brook; (4) utility crossings for Jordan Brook, No Name Brook and a tributary; and (5) permanent filling of .20 acres and temporary disturbance within .29 acres of wetlands. The commission, however, imposed on Reynolds twenty-nine conditions relating to the grant of the permit “in order to further protect the inland wetlands and groundwater on this site and to minimize impacts associated with the proposal.” In addition to the conditions regarding the design and location of one of the nine detention basins approved, the commission provided for scheduled maintenance of parking areas, catch basins and detention basins, for restrictions upon the use of fertilizers and herbicides, for installation of test wells in order to monitor water quality, for a conservation easement along a portion of a brook, for open space parcels and buffer zones, and for erosion controls and other safeguards during construction of the project.

I

In the first appeal Gardiner claims that certain conditions imposed by the commission allow the ex parte submission of engineering data by Reynolds relevant to whether the permit should have been granted and that he will have no opportunity to challenge the information to be provided, thus depriving him of due process of law in violation of his constitutional right to a fair hearing. This argument focuses upon the four conditions requiring: (1) a full subsurface investigation of the area where one detention basin is to be located in order to determine whether a pollution hazard is created by its proximity to the Devonshire landfill, a former waste disposal area; (2) a special design of this basin in order to prevent seepage between the basin and the landfill for the purpose of protecting water quality; (3) a water monitoring program related to leachate that may emanate from another waste disposal area, the Waterford landfill; and (4) submission of engineering calculations for two of the detention basins, including the one near the Devonshire landfill, in order for the town engineer to review the structural integrity of these and other similar basins. Gardiner maintains that the commission should not have granted the permit until the additional information demanded as a condition of the permit had been presented at a public hearing and subjected to examination by him and other opponents of the application.

The basis for the commission’s concern about locating the detention basin in proximity to the Devonshire landfill was a letter from the department of environmental protection (DEP) commenting upon Reynolds’ proposal. The letter contained a statement that the basin “abuts, and may overlie, portions of the Devon-shire landfill.” At the public hearing no other evidence was presented to indicate that the proposed detention basin would be located over a landfill.

Both parties rely upon precedent involving ex parte communications to a commission following a public hearing but before it has rendered a decision. In such a context we have declared that, “[bjecause the commission is composed of laymen, it is entitled to professional technical assistance in carrying out its responsibilities. . . .” Hawkes v. Town Plan & Zoning Commission, 156 Conn. 207, 212, 240 A.2d 914 (1968). We have placed emphasis on the circumstance that such ex parte communications have usually come from public officials having no personal or financial interest in the controversy. McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 78, 282 A.2d 900 (1971); Kyser v. Zoning Board of Appeals, 155 Conn. 236, 251, 230 A.2d 595 (1967). We have also indicated that whether “[tjhe information requested by the commission was within the scope of the [matters] presented at the public hearing” is significant in assessing the prejudicial effect of such a communication. Hawkes v. Town Plan & Zoning Commission, supra, 212.

We need not consider whether the additional information required to be submitted by Reynolds as a condition of the permit would qualify as a permissible ex parte communication under the standards established by our precedent, because that information cannot have had any effect on the decision of the commission presently before us. At this time, therefore, there has been no violation of Gardiner’s due process right to a fair hearing. We do not know precisely what information will be submitted or what its significance will be with respect to the need for modifications of Reynolds’ proposal. The commission may well provide an opportunity for Gardiner or other interested persons to challenge the information when it is furnished. We have suggested that administrative boards allow such an opportunity when information pertinent to an application is requested after the close of a public hearing. Kyser v. Zoning Board of Appeals, supra, 251-52. “It is far better . . . that no room be given for suspicion or cavil and that every effort be made to avoid the creation of a situation which might tend to weaken . . . public confidence in the action of a zoning board. . . .” Id.

It is conceivable that an additional public hearing may be held if the information requested should raise serious concerns among the commission members about the likelihood of pollution. The commission regulations provide that, “[i]f the Agency finds that an activity for which it has granted a permit, or granted a permit with conditions, has had a more severe impact or effect on the inland wetland or watercourse than was projected by the applicant . . . the Agency may revoke such permit and require the permittee to cease all site work and file a new application for review.” General Statutes § 1-19 (a) of the Freedom of Information Act provides to “every person” a right to inspect public records such as the documents containing the information requested by the commission from Reynolds. Gardiner thus will have an opportunity to review Reynolds’ submission and to inform the commission of any inadequacies that he may discover or any additional concerns raised by the information received. If the commission should fail to take appropriate action, Gardiner, as an adjoining landowner whose property may be adversely affected by pollution resulting from Reynolds’ proposed development of an industrial park, would not be without recourse. “For over one hundred years in this state, we have recognized the general power of equity to afford relief by injunction and damages for injury caused by a nuisance created by the unreasonable conduct on one’s own property of an otherwise lawful activity.” Krulikowski v. Polycast Corporation, 153 Conn. 661, 666, 220 A.2d 444 (1966).

Gardiner does not question the authority of the commission, as provided by § 22a-42a (d), to attach conditions to the grant of a permit. The first and second conditions of which he complains, requiring a subsurface investigation of the location proposed for one detention basin because of its proximity to a landfill and a special design of that basin, were imposed because of the concern expressed in the DEP letter that it “abuts and may overlie, portions of the Devonshire landfill.” The water monitoring program prescribed by the third condition, which required the installation of test wells, was another precautionary measure related to the presence of abandoned waste disposal sites on Reynolds’ property. The fourth condition, requiring the submission of engineering calculations to substantiate the structural integrity of the basins, was merely an implementation of a previous request for the same information. Gardiner does not maintain that any of the conditions were unreasonable but that, because they require the submission of information that will not be subjected to the scrutiny of a public hearing, his constitutional right to a fair hearing has been violated. Presumably he would raise no such complaint if the commission had simply approved Reynolds’ application without imposing the four conditions he challenges, despite the additional protection of the public interest that they afford. To adopt Gardiner’s view would inhibit an inland wetlands agency in imposing such conditions as it deemed necessary to safeguard against the risk of pollution in the light of concerns raised during its deliberations. We conclude that Gardiner’s rights were not violated merely by the attachment to a permit of conditions that required the submission of further information after the agency’s decision had been rendered.

II

In the second appeal the plaintiff Fromer claims: (1) he was entitled to raise not only environmental issues but also those having an “inextricable nexus” to issues directly affecting the environment; (2) there is insufficient support for the finding of the commission that Reynolds’ proposal would have no adverse effect upon the wetlands; (3) consideration of alternatives was therefore necessary; and (4) the trial court improperly refused to consider the adequacy of the Waterford wetlands regulations for protection of the rights created by the environmental statutes. We are not persuaded that any of these claims requires reversal of the judgment.

A

Fromer intervened in the proceeding before the commission pursuant to § 22a-19 (a), which, “[i]n any administrative, licensing or other proceeding” allows “any person” to “intervene as a party on the filing of a verified pleading asserting that the proceeding . . . involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” We have held that this statute confers upon anyone who complies with its requirements standing to raise only environmental issues. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 499-500, 400 A.2d 726 (1978). With respect to an inland wetlands agency, we have further limited such standing to the presentation of environmental issues within the jurisdiction of such an agency. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984).

Fromer maintains that he has standing to raise issues with an “inextricable nexus” to those directly affecting the “public trust in the air, water or other natural resources of the state,” for which § 22a-19 (a) expressly gives him standing. He has presented this claim as an abstract proposition, however, and has not specified what issues having such a nexus he was barred from raising before the commission or in the trial court. Our examination of the references in the part of his brief discussing this claim does not indicate that, because of his limited standing as an intervenor, he was prevented from advancing any claim or argument related to the environment. It would serve no useful purpose to discuss his “inextricable nexus” claim in the abstract.

B

The trial court concluded that the record adequately supports the implicit finding of the commission that the industrial park proposed by Reynolds, with the modifications necessary to comply with the conditions attached to the permit, was not likely to cause “unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state . . . .” General Statutes § 22a-19 (b). We agree with the court that the record supports this finding. In its very comprehensive memorandum of decision, the court carefully reviewed Fromer’s various claims and held that the commission’s finding of the improbability of unreasonable pollution resulting from Reynolds’ proposal was supported by substantial evidence and, therefore, could not be overturned. “In determining whether an administrative finding is supported by ‘substantial evidence,’ a court must defer to the agency’s assessment of the credibility of the witnesses . . . even an expert, in whole or in part.” Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 229 (1989). We are not persuaded that the trial court’s resolution of this issue was erroneous, given the deference that a reviewing court must accord to the factfinding function of an administrative agency. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-42, 525 A.2d 940 (1987).

C

The trial court construed § 22a-19 (b) not to require a municipal inland wetlands agency to consider alternatives to an applicant’s proposal once the agency has found that “unreasonable pollution” is unlikely to result from granting the application. This analysis is flawed, however, because the determination of whether a specific degree of contamination or other environmental detriment is unreasonable may often turn on the availability of alternatives. Even minimal environmental harm is to be avoided if, “considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.” General Statutes § 22a-19 (b). As Fromer correctly points out, § 6.1 (e) of the commission’s regulations expressly requires the agency, in making its final decision on permit applications, to consider “[a]ll relevant issues including . . . [t]he alternatives to the proposed action, including a consideration of alternatives which might enhance environmental quality or have a less detrimental effect, and which could feasibly attain the basic objectives of the activity.” Municipal inland wetlands regulations must “give due consideration to the standards set forth in [General Statutes §] 22a-41.” General Statutes § 22a-42 (e). Section 22a-41, which by its terms applies only to the commissioner of environmental protection, requires consideration of “all relevant facts and circumstances, including ... (2) [t]he alternatives to the proposed action . . . .” We agree with Fromer that the Waterford inland wetlands commission was obliged to consider alternatives to the same extent that § 22a-41 requires the commissioner of environmental protection to do so in determining whether any degree of pollution likely to be generated by a proposed wetlands activity is unreasonable.

As the trial court found, however, the commission did consider many alternatives. The record indicated that numerous compromises and redesigns had been made, resulting from negotiations with town and state officials. Eleven alternative studies were discussed with the commission and its staff. A prior application was submitted but was withdrawn for further modifications. Alternatives for dealing with the leachate pool were considered, some of which one expert characterized as “virtually impossible.” We agree with the court that “there was substantial evidence from which the Commission could have concluded that a permit with the conditions imposed was better than the option of no action because Reynolds must now monitor the impacts of the existing landfill, whereas before, no monitoring was done or required.” Fromer was allowed to present a list of alternatives, but failed to present specific evidence with respect to each or to convince the commission that any of his alternatives would be “feasible and prudent,” as required by § 22a-19 (b).

D

As his final claim, Fromer maintains that General Statutes § 22a-20 required the trial court to make a determination of whether the Waterford inland wetlands regulations are adequate to protect the rights established by the state Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20. Apparently he relies upon the provisions of § 22a-20 that allow the maintenance of an action “to protect the rights recognized herein, where existing administrative and regulatory procedures are found by the court to be inadequate for the protection of the rights” and further provide that “such procedures shall be reviewable in a court of competent jurisdiction to the extent necessary to protect the rights recognized herein.” We need not in this case attempt to divine all of the ramifications of this obscure statutory language, because a necessary predicate to the application of these provisions is a finding of the inadequacy of existing administrative and regulatory procedures for protection of the rights created by the Environmental Protection Act. The trial court made no such finding and Fromer has not specified in what manner these procedures are claimed to be inadequate. The record indicates that he was given a full opportunity to be heard on the merits of his objections to the application. We reject his interpretation of § 22a-20 to require that the court “first determine the adequacy of the regulatory law to protect the Appellant’s recognized rights” when all of the substantive claims raised have been adequately considered and no restraint has been imposed on their presentation.

The judgments are affirmed in both cases.

In this opinion Peters, C. J., Callahan and Covello, Js., concurred.

Berdon, J.,

dissenting in Gardiner v. Conservation Commission and concurring in Fromer v. Reynolds Metals Development Co. I disagree with the majority’s conclusion that the due process rights of the plaintiff, Scott Gardiner, were not violated as a result of the commission’s decision to grant Reynolds’ application for a wetlands permit to conduct regulated activities, approval of which was conditioned on the ex parte submission of substantive engineering data by Reynolds after the close of the public hearing. The engineering data involves the location of a detention basin in proximity to the Devonshire landfill. The result of the majority’s decision is that the commission will be allowed to consider the additional evidence submitted by Reynolds and make its decision on whether Reynolds has sufficiently addressed the concerns regarding the detention basin, even though Gardiner will not have the right to cross-examine Reynolds’ experts on that information or to present rebuttal evidence.

We have long held that “[d]ue process of law requires that the parties involved [in an administrative proceeding] have an opportunity to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). In Blaker v. Planning & Zoning Commission, 212 Conn. 471, 477-78, 562 A.2d 1093 (1989), Justice Shea, writing for a unanimous court, reaffirmed the holding in Pizzola by stating that “[t]he commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal. . . . [T]he use of [technical and professional] assistance . . . cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.” (Citations omitted; internal quotation marks omitted.) Professor Terry J. Tondro cogently summed up the principle as follows: “[T]he general rule is that information may not be considered by board members that has not been presented at the public hearing itself.” T. Tondro, Connecticut Land Use Regulation (1983 Sup.) p. 100.

At the public hearing on the permit application, Gardiner hotly contested the application and presented expert testimony raising concerns on the location of the detention basin. The majority, however, apparently dismisses Gardiner’s claim for lack of ripeness. In other words, the majority claims that Gardiner’s due process rights are triggered only when, and if, the commission actually receives an “ex parte” communication and then fails to hold a public hearing. This rule that the majority now adopts fails to take into account the very nature of the commission’s actions. The commission’s decision to grant the permit on the condition that more information and technical data be furnished makes any further public hearings solely within the uncontrolled discretion of the commission. The due process rights of Gardiner should not depend upon the whim of the commission to choose to hold an additional hearing, as the majority appears to suggest. It is fundamental that due process of law requires that Gardiner be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965).

The majority also seems to suggest that should the commission not choose to hold an additional public hearing, Gardiner and other interested parties could obtain access to the information submitted to the commission pursuant to General Statutes § 1-19 of the Freedom of Information Act. The majority concludes that this procedural morass will allow Gardiner and other opponents the opportunity to “inform the commission of any inadequacies that he may discover or any additional concerns raised by the information received.” Even if this could be considered a substitute for cross-examination and the right to present rebuttal evidence, which it cannot, by then the right to appeal from the decision granting the permit would have expired. The majority, apparently, has a remedy for this; it points out that if Gardiner, an adjoining property owner, is “adversely affected by pollution resulting from . . . proposed development of an industrial park,” he can always request injunctive relief on the basis of an action for nuisance. Of course, this remedy does not take into account the burden of proof necessary to establish the nuisance, the timeliness of the remedy, the costs of pursuing another action and all other matters that could either make it unavailable or an ineffective remedy.

In the present case, the majority, in an attempt to justify its decision, points out that General Statutes § 22a-42a (d) specifically authorizes the commission to grant permits “upon such terms, conditions, limitations or modifications of the regulated activity . . . .” The “conditions” to which § 22a-42a(d) refer, however, are not those that will determine whether the regulated activity should be permitted in the first instance, but are merely stipulations for allowing the activity in return for other environmental considerations. See Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989) (approval of filling in a pond on condition the applicant provide compensation for wetland development or other enhancements). The sentence preceding the authority for “conditions” in § 22a-42a (d) makes this clear by requiring the commission to “state upon the record the reason for its decision” either to grant or to deny the permit application. In the present scenario, all the reasons for granting the permit will not be known until the ex parte evidence has been submitted, assuming that the information satisfies the commission that the conditions have been met. Only then could the commission adequately state upon the record its reason for granting the permit.

Allowing the commission thus to put the cart before the horse requires the opponents to the permit to appeal the commission’s approval without knowing all the reasons why the permit was granted. This bizarre result arises because of the majority’s interpretation of § 22a-42a (d) and because the statutory time frame in which an appeal must be taken begins the moment the decision of the commission is published. General Statutes § 22a-34. Because approval of the permit was based, in part, on information that may not be submitted during the thirty day appeal period, the opponents are left to guess at the basis for the action they are challenging. Requiring parties to stumble through the dark in search of their legal rights does not comport with due process.

Interpreting § 22a-42a (d) as the majority does could also mean that the commission would have the broad power to grant applications for regulated activities on the basis of certain conditions, the satisfaction of which would not be subject to public scrutiny or appellate review. This interpretation makes a mockery out of the statutory protections afforded to those statutorily and classically aggrieved as well as to environmentalists given standing under General Statutes § 22a-19. I cannot believe that the legislature intended that result. “We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. . . . If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable. . . .” (Citations omitted.) Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

By allowing a commission’s decision to be based on evidence that is not subject to cross-examination and rebuttal at a public hearing, the majority undermines the beneficial purposes of the Inland Wetlands and Watercourses Act. The legislative finding contained in General Statutes § 22a-36 provides, inter alia, that “[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. . . . The preservation and protection of the wetlands and watercourses . . . is in the public interest . . . .” Today, the majority insulates from public scrutiny decisions that could be devastating to those concerned with policing the action of environmental commissions or to other interested persons dedicated to the preservation of these environmental jewels.

Accordingly, I would reverse the judgment of the trial court in Gardiner’s case and find that his due process rights have been violated by the commission’s act of granting the permit with the condition of allowing ex parte communications, without giving Gardiner the right to be heard on those issues in a meaningful manner. In regard to Fromer v. Reynolds Metals Development Co., I concur with the majority.

       The conservation commission of the town of Waterford acts as the inland wetlands agency for that town pursuant to General Statutes § 22a-42 (d).

       Section 5.10 of the Waterford inland wetlands regulations provides: “If the Agency finds that an activity for which it has granted a permit, or granted a permit with conditions, has had a more severe impact or effect on the inland wetland or watercourse than was projected by the applicant, or does not in fact involve a permitted use, the Agency may revoke such permit and require the permittee to cease all site work and file a new application for review.”

       General Statutes § 22a-42a (d) provides in part: “In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive.”

       Fromer also claims that both the commission and the trial court decided sophisticated and technical issues involving biology, ecology and pollution without adequate expert testimony, despite their lack of expertise in these subjects. See Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980). Fromer, however, has not specified which issues are claimed to have been decided without sufficient expert testimony. Because of this lack of specificity, this claim has not been adequately briefed. We therefore refuse to consider it further. State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991).

       General Statutes § 22a-19 (b) provides as follows: “In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       Section 6.1 (e) of the Waterford inland wetlands regulations requires the commission to consider “[a]ll relevant issues including, but not limited to, the following: i. The alternatives to the proposed action, including a consideration of alternatives which might enhance environmental quality or have a less detrimental effect, and which could feasibly attain the basic objectives of the activity. This should include, but is not limited to, the alternative of taking no action, or postponing action pending further study; the alternative of requiring actions of a different nature which would provide similar benefits with different environmental impacts, such as using a different location for the activity.”

       General Statutes § 22a-42 (e) provides: “Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder. Any ordinances or regulations shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, and, a municipality or district, in acting upon ordinances and regulations shall give due consideration to the standards set forth in section 22a-41.”

       General Statutes § 22a-41 provides in part: “(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action . . . .”

       General Statutes § 22a-20 provides: “Sections 22a-14 to 22a-20, inclusive, shall be supplementary to existing administrative and regulatory procedures provided by law and in any action maintained under said sections, the court may remand the parties to such procedures. Nothing in this section shall prevent the granting of interim equitable relief where required and for so long as is necessary to protect the rights recognized herein. Any person entitled to maintain an action under said sections may intervene as a party in all such procedures. Nothing herein shall prevent the maintenance of an action, as provided in said sections, to protect the rights recognized herein, where existing administrative and regulatory procedures are found by the court to be inadequate for the protection of the rights. At the initiation of any person entitled to maintain an action under said sections, such procedures shall be reviewable in a court of competent jurisdiction to the extent necessary to protect the rights recognized herein. In any judicial review the court shall be bound by the provisions, standards and procedures of said sections and may order that additional evidence be taken with respect to the environmental issues involved.”

       It is of little consolation that the commission regulations provide that should the “activity for which [the commission] has . . . granted a permit with conditions, [have] a more severe impact or effect on the inland wetland or watercourse than was projected by the applicant . . . the [commission] may revoke such permit . . . .’’Waterford Inland Wetlands Regs. § 5.10. Also, there is no way in which an administrative appeal could be taken in order to challenge the commission’s failure to revoke the permit. Therefore, the regulation does not detract from the unbridled discretion with which the majority cloaks the commission.

       The purpose of cross-examination and the presentment of additional evidence is not to satisfy the presenter, but to develop and test evidence that would be of an aid to the decision maker, in this case the commission, in making an informed decision, as well as to establish a record for appeal.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    State of Connecticut v. Anthony Hopkins
    (13832)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.

      Argued January 15
    decision released May 19, 1992

      Sue L. Wise, with whom, on the brief, was Diane Polan, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Berdon, J.

The defendant, Anthony Hopkins, was convicted by a jury and sentenced to a term of imprisonment for fifty years for felony murder in violation of General Statutes § 53a-54c, attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (1), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). In his appeal to this court, the defendant claims that the trial court improperly: (1) admitted as substantive evidence a prior inconsistent statement of a nonparty witness; and (2) deprived him of a fair trial in its supplemental instructions to the deadlocked jury and also in its jury instructions as a whole. We affirm the judgment of the trial court.

From the evidence presented, the jury could reasonably have found the following facts. In the early morning hours of August 27, 1988, Dorothy Hopkins, a prostitute and drug addict, was soliciting on the corner of Barnum Avenue and Kossoth Street in Bridgeport. Her husband and pimp, Earl Hopkins, was nearby. Keith Kochiss approached Dorothy Hopkins in his car, which she entered. They proceeded to drive around the area. When they agreed upon a price for her services, Kochiss parked his car on Maple Street, closed the window, locked the car and unzipped his pants. As she was about to perform a sexual act, Dorothy Hopkins saw the defendant, who was her brother-in-law, approach the car with another individual. Both of the men who approached the car were black. The defendant demanded that Kochiss turn over his money. When Kochiss attempted to reach for the ignition key, the defendant fatally shot him in the head through the closed window. The bullet went through Kochiss’ head and entered Dorothy Hopkins’ body.

The defendant then put his hand through the shattered window and turned the ignition key. The car lunged forward and crashed into a tree. As Dorothy Hopkins crawled out of the car, Wanda Carter came running by. Dorothy Hopkins asked Carter to summon her husband from the park. When the police arrived at the scene, they found Dorothy Hopkins staggering about the street. The window on the driver’s side of Kochiss’ automobile was shattered and the interior was covered with blood. Kochiss was slumped over in the driver’s seat. After arriving at the hospital, Dorothy Hopkins was briefly interviewed by the police and said only that she had been robbed by two black males. Subsequently, Dorothy Hopkins gave the police a written statement implicating the defendant as the person who had shot Kochiss. She also testified to that effect at the defendant’s probable cause hearing.

I

The defendant’s first claim is that the trial court improperly admitted for substantive purposes the written statement that Dorothy Hopkins had given to the police in which she identified the defendant as the person who had approached the car and had fired the shot that killed Kochiss and wounded her. At trial, Dorothy Hopkins testified that she had been with Kochiss in his car on Maple Street and that after they had agreed upon a price for her services, Kochiss had unzipped his pants. As this was happening, she had seen two men, whom she could not identify, approach the car. One of the men had fired a shot through the window and Kochiss had fallen onto her lap. The unknown assailant had reached into the car, had started the engine and had put the car in gear, causing it to roll into a fence. She also testified that she had pleaded with the man not to harm her, not realizing that she had been shot.

Contrary to this testimony, on September 8, 1988, twelve days after the incident, Dorothy Hopkins gave a statement at the police station that implicated the defendant. In the written statement, which was signed and witnessed, Dorothy Hopkins stated, in part, that the defendant “came up to the window on the driver’s side of the car. [The defendant] had a gun in his hand, and he tapped on the window and he said, ‘Mother Fucker, give me your damn money.’ My date sort of ducked his head and I saw his hand going toward the ignition, I believe that he was going to try to start the car and Anthony may have thought that my date was going to reach for something and that was when he shot my date. Anthony shot straight through the window. After the shot, my [date’s] head fell on my lap.”

The trial court, after an extensive voir dire and over the objection of the defendant, admitted into evidence this out-of-court statement for both impeachment and substantive purposes. Thereafter, the defense attempted to introduce into evidence an affidavit that Dorothy Hopkins had executed shortly after she had given the statement to the police, in which she had recanted her statement that the defendant had shot Kochiss. The trial court sustained the state’s objection to the introduction of the affidavit. The defendant did not have the affidavit marked for identification purposes and does not now claim in this appeal that the court’s ruling was improper.

In State v. Whelan, 200 Conn. 743, 748-49, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), we abandoned the traditional view “that a prior inconsistent statement of a nonparty witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein and, therefore, is admissible only for impeachment purposes.” In Whelan, we adopted the rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in the statement; and (4) the declarant testifies at trial and is subject to cross-examination. Id., 753. In State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989), we made it clear that the Whelan exception applied equally to unsworn statements.

The defendant correctly states that the rationale underlying the Whelan exception to the hearsay rule is that its requirements assure reasonable reliability. He argues, however, that the particular circumstances surrounding Dorothy Hopkins’ statement undercut its reliability and, therefore, it should have been excluded. We disagree with the defendant.

First, the defendant argues that because Dorothy Hopkins testified at trial that she was unable to identify the defendant as the perpetrator and because there was no other evidence presented to connect the defendant to the crime, her statement should have been excluded. Commentators have pointed out that “the court should require some corroborative evidence and not permit a conviction to be based solely on an out-of-court inconsistent statement [of a nonparty witness]. See State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980) (declaration against penal interest); see also Commonwealth v. Daye, [393 Mass. 55, 469 N.E.2d 483 (1984)].” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1991 Sup.) § 11.24.1, p. 122. Lack of contemporaneous cross-examination and confrontation are the major reliability concerns of such hearsay statements. The drafters of the federal rule had similar concerns because, when they took a position between the traditional rule of exclusion and the modern rule of inclusion, they added a further requirement that the statement be “given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition . . . .” Fed. R. Evid. 801 (d) (1).

Nevertheless, this is not a case in which the only evidence of guilt was the uncorroborated and unsworn out-of-court statement of Dorothy Hopkins. In addition to Dorothy Hopkins’ statement to the police, all her sworn testimony from the probable cause hearing was admitted into evidence at trial without objection on the part of the defendant. The testimony at the probable cause hearing was subject to contemporaneous cross-examination by the defendant. Although Dorothy Hopkins vacillated during cross-examination between identifying the defendant as the perpetrator and stating only that the assailant had been one of two black males whom she could not identify, on direct examination, she clearly implicated the defendant under oath as the person who had shot Kochiss.

Second, the defendant argues that when Dorothy Hopkins gave her statement, the attendant circumstances “undercut any assumption of reliability that might otherwise inure to her written statement.” Specifically, the statement was taken only after Dorothy Hopkins was told that the defendant was a suspect because he had been found in the area, and that she and her husband, Earl Hopkins, who had been one block away at the time of the incident, were also suspects. Additionally, Dorothy Hopkins was reminded of the criminal charges pending against her for another incident. Finally, she gave the statement only twelve days after the incident in which she had been seriously injured and while under the influence of Percocet, a prescription drug that made her feel dazed, disoriented and sluggish, similar to the way she said that illegal drugs made her feel. Although these factors are relevant and proper matters for cross-examination, they go to the weight of the evidence and not its admissibility. Moreover, this is not a situation in which the statement was given in response to leading questions, “which are laden with facts to which the witness has merely answered with a 'yes’ or ‘no.’ ” C. Tait & J. LaPlante, supra, § 11.24.1, p. 122; Commonwealth v. Daye, supra. Rather, the statement was given in a setting requiring the witness to respond with narrative answers.

Recently, we held in regard to the Whelan exception “that a prior inconsistent statement had to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible [for substantive purposes].” State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992). It is the trial court’s responsibility to weigh the reliability of each statement on a case-by-case basis. Id., 100-101. Although the Whelan rule may require some honing, this is not the case in which to do it. The witness implicated the defendant at the probable cause hearing while under an oath to testify truthfully and while she was subject to contemporaneous cross-examination by the defendant’s counsel. No objection was made to the introduction of the testimony from the probable cause hearing. Accordingly, we conclude that the out-of-court statement Dorothy Hopkins had given to the police had sufficient indicia of reliability and was properly admitted for substantive purposes.

II

The defendant next claims that the trial court incorrectly instructed the jury in two respects after the jury reported that it was deadlocked “six to six” on the third day of deliberations. First, the defendant argues that the supplemental “Chip Smith” instruction; State v. Smith, 49 Conn. 376, 386 (1881); prejudiced the defendant and coerced the jury into agreeing to a verdict. Second, the defendant claims that the trial court incorrectly instructed the jury in its second supplemental charge. The defendant also claims that the trial court’s charge to the jury, as a whole, violated his right to a fair trial. We will treat each claim seriatim.

A

After receiving a note from the jury indicating a deadlock, the court gave a “Chip Smith” instruction, to which the defendant did not object. After the jury returned to the deliberating room, counsel for the defendant sought an additional instruction stressing to the jurors that they were not compelled to agree; the trial court acceded to this request.

The jury, thereafter, resumed deliberations for another two hours and again reported that it was deadlocked. After the trial court denied the defendant’s motion for mistrial, the court gave the following supplemental instruction to the jury (first supplemental charge): “I have your note. I’ve reported to counsel that the note . . . simply . . . refers to deadlock. The case is a serious case. A life has been taken in the commission of crime in this society and the time spent on the deliberations so far, in the judgment of the court, is insufficient for anyone to report that they are at deadlock they cannot resolve. I believe you should spend more time on the subject.” (Emphasis added.) The defendant took an exception to the first supplemental charge on the ground that the instruction was not balanced because, while the court mentioned that the jury should consider that a death had occurred, it did not mention to the jury that it should also consider “the freedom of the individual who is on trial.” We conclude that any disproportionality in the first supplemental charge was corrected when the jury was returned to the courtroom and the trial court gave a further instruction (second supplemental charge) that it had not intended to attribute the death to the defendant and that the jurors were to consider his comments “even handed.”

B

The defendant also argues, for the first time on appeal, that the court, in its second supplemental charge, improperly told the jury to convict the defendant if it was “satisfied that he did [kill].” 9We agree with the defendant that this statement was improper because it diluted the state’s obligation to prove the defendant’s guilt beyond a reasonable doubt. State v. DelVecchio, 191 Conn. 412, 419-20, 464 A.2d 813 (1983). Despite the improper statement, however, the defendant cannot prevail in this case because the state has clearly demonstrated that under the GoldingEvans rule; State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); the constitutional violation was harmless beyond a reasonable doubt in light of the numerous times that the trial court correctly stated the applicable law. “The whole charge must be considered from the standpoint of its effect on the jury in guiding [it] to the proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 37, 561 A.2d 897 (1989). In its original instruction to the jury, the court charged on the defendant’s presumption of innocence at least four times. On at least six separate occasions, the trial court generally charged on the state’s burden of proof. Additionally, the jury was specifically instructed nine times on the state’s burden of proof in regard to the elements of the charged crimes. Just prior to its “Chip Smith” charge, the trial court, in response to the jury’s request, again instructed the jury on the state’s burden of proof. See United States v. Angiulo, 485 F.2d 37, 39 (1st Cir. 1973) (“[T]he [‘Chip Smith’] charge might move some jurors to forget the prosecution’s heavy burden of proof and the defendant’s fundamental presumption of innocence. . . . [W]e strongly advise trial courts to balance a supplemental charge so that . . . jurors would be reminded of the burden of proof.”).

C

The defendant finally claims that the jury charge as a whole deprived him of a fair trial. “To determine whether an error in the charge to the jury exists, we review the entire charge to determine if, ‘taken as a whole, the charge adequately guided the jury to a correct verdict.’ ” State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989), quoting State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant’s claim is barren of any specifics except that the trial court had improperly commented on the evidence during its instruction to the jury. In this regard, it must be remembered that a trial court has broad discretion to comment on the evidence. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). Furthermore, the defendant took no exception to the charge in this respect. The defendant has failed to demonstrate how this unpreserved claim satisfies the Golding-Evans requirements. Accordingly, the claim is without merit.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides: “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, sexual assault in the first degree with a firearm, 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, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      General Statutes § 53a-49 provides in pertinent part: “(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) intentionally 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.”
      General Statutes § 53a-134 (a) (1) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime 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.”
      General Statutes § 53a-59 (a) (1) provides: “A person is guilty of assault in the first degree when: (3) 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.”

       The trial court clearly allowed the statement to be introduced for substantive purposes as well as for impeachment. At the time the court admitted the statement into evidence, it instructed the jury as follows: “Ladies and gentlemen of the jury, the court overrules the objection to the admissibility of this statement. The statement becomes evidence in the case for your consideration. . . . The law now is that you may consider it as evidence of the substantive offenses beyond impeachment as if it were testimony given here. You will examine [the] prior statement, her testimony here and any other testimony that you will hear concerning statements made as you’ve already heard in the hearing in probable cause. . . . You understand the statement is before you for all purposes. It’ll be for you to determine what you believe to be the truth. The present, prior or neither. That’s for you to decide.” The defendant took a timely and appropriate exception to this ruling. The state argues on appeal that because the defendant failed to take an exception to the court’s formal charge at the end of the evidence wherein the trial court again instructed the jury that it could use the statement for substantive purposes, the defendant is now precluded from appellate review. There was no need to take an exception to the charge in order to preserve the issue of whether it was improper for the trial court to admit the statement into evidence in the first instance. See Practice Book § 4185; State v. Person, 20 Conn. App. 115, 129-30, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990) cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 775 (1991).

       Although we are not presented with such a situation here, we treat prior tape recorded statements as prior written statements. State v. Holloway, 209 Conn. 636, 649, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Whelan, 200 Conn. 743, 754 n.9, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       At the probable cause hearing, Dorothy Hopkins described the events on the night of the shooting as follows:
      “Q. And when they got near the car, were you able to recognize those persons?
      “A. Yes. Yes, I did.
      “Q. And who were those two persons?
      “A. Anthony Hopkins and Raymond Jeffries. . . .
      “Q. Now, what did they do? Did they come to the car or what did they do?
      “A. Let me see. Let me see. I believe Raymond stayed in the back rear of the—on the corner. . . .
      “Q. All right. What happened next?
      “A. Let me see. Oh! Wait a minute. Anthony came up to the car.
      “Q. Anthony came up to the car?

        “A. Uh-huh.
      “Q. What side of the car?
      “A. On the driver’s side. . . .
      “Q. What did he say?
      “A. He had asked—I don’t know if I can repeat the words.
      “Q. Repeat the words.
      “A. He asked—Mother fucker, give me your money. . . .
      “Q. . . . Could you see Anthony there?
      “A. Well, yes, I seen him.
      “Q. Did he have anything in his hand?
      “A. Yes, he had a gun. . . .
      “A. Anthony reached his arm through there and turned the ignition on and pulled the lever of the car.”

       In discussing the “Chip Smith” charge, commentators have noted the criticism aimed at the Allen charge, its federal analogue: “ABA Standards for Criminal Justice, Trial By Jury § 15-4.4 (2d Ed. 1978) strongly criticizes the federal analogue to the Chip Smith charge, Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), and concludes: ‘[T]he Allen charge should not be used. It is appropriate, however, for a court to give or repeat to the jury an instruction on its responsibilities . . . when the jury has indicated its inability to reach an agreement or has deliberated for some time without reaching an agreement.’ (Id. at 15.143.)” D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 4.8, pp. 137-38, reference note A.

       The transcript of the trial court’s entire first supplemental charge to the jury provides: “I have your note. I’ve reported to counsel that the note says simply, refers to deadlock. The case is a serious ease. A life has been taken in the commission of crime in this society and the time spent on the deliberations so far, in the judgment of the court, is insufficient for anyone to report that they are at deadlock they cannot resolve. I believe you should spend more time on the subject. I believe that you should take into account, my instructions in regard to the listening to one another’s positions, and recognizing whether or not the basis upon which you have reached [a] conclusion [is] reasonable. And throughout the proceedings, the key word has been reasonable. What do you reasonably believe from the witnesses that have been presented before you. I’m going to ask you to continue and we will stay until I feel that there has been an adequate period of time devoted to the deliberation in the many issues that have been created by the evidence in this case. I don’t believe we have met that point at this time. So I’m going to ask you to resume and to continue your deliberations in an effort to resolve the case. You may step out and continue.”

       The following is the text of this entire second supplemental charge, to which the defendant took no exception. “I’ve already pointed out to you the fact that this is a serious matter. You all recognize that from the time that you have spent here in regard to it. And I emphasize that by pointing out to you that the fact that this is a loss of life and a death occurred and I don’t mean in any way that that’s attributable in my judgment, because it’s not my judgment to the accused. What I’m saying to you is the deadlock leaves the matter up in the air. And when I say that the fairness of the quality and the fair treatment of that subject, that if your deliberations result in the determination that it’s fair to the state and fair to the accused. I mean this man is charged with this killing. If he did so and you are satisfied that he did and can arrive at that conclusion, you’ll report that verdict. If he did not, it tells us and him that he did not do it. But a deadlock is between the two. And requires a retrial. So I’m asking you to consider my comments even handed. I’m not suggesting any verdict to you. I wouldn’t dream of doing that. But I would ask you to seek out your one and other’s counsel and see if you can resolve this case by continued deliberation. Even handedly, considering of course, the requirements of law, the burdens of the state and the accused’s position. Okay. Please try and do that.”

       See footnote 7, supra.

       “[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.” State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989).

       Exceptions to the original charge were taken in two instances, but the court reinstructed the jury correcting the claims of error, to which no exception was taken.


author: Glass, J. Berdon, J.,

text:
    Statewide Grievance Committee v. M. Daniel Friedland
    (14136)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued December 11, 1991
    decision released May 19, 1992

      Norman E. Whitney, with whom, on the brief, was M. Daniel Friedland, pro se, the appellant (defendant).

      Elizabeth F. Collins, assistant bar counsel, for the appellee (plaintiff).
   Glass, J.

The plaintiff, the statewide grievance committee, instituted this action by presentment in four counts against the defendant, M. Daniel Friedland, alleging that he had committed professional misconduct in the representation of four clients. After a hearing, the trial court found the defendant guilty on all counts and ordered that he be permanently disbarred from the practice of law in Connecticut. Thereafter, the defendant filed a motion to reconsider, open and set aside the judgment. After a second hearing, at which the defendant appeared and presented evidence, the trial court denied his motion. The defendant appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023.

On appeal, the defendant claims that: (1) the committee failed to present clear and convincing evidence to support the discipline imposed by the trial court; (2) the trial court abused its discretion in failing to grant the defendant a continuance; (3) the defendant was denied effective assistance of counsel; and (4) the trial judge should have recused himself from this action. We affirm the judgment of the trial court.

The defendant was admitted to practice in Connecticut on May 13,1983. On March 2, 1990, the committee filed the presentment that is the subject of this appeal in the Superior Court at Hartford. The presentment was served on the defendant on March 8, 1990, notifying him that a hearing was scheduled for April 10, 1990. The defendant’s attorney appeared at the April 10 hearing and requested a continuance on the defendant’s behalf, which the trial court denied. We shall set forth the remaining facts as they relate to each of the defendant’s four claims.

I

The defendant first claims that the committee failed to present clear and convincing evidence of professional misconduct that would support the discipline imposed by the trial court. In addressing this claim, we set forth the evidence presented at the April 10, 1990 hearing separately as it relates to each count of the presentment.

A

COUNT I - PATRICK WADE

On or about March 2, 1988, the United States Immigration and Naturalization Service (INS) brought a deportation proceeding against Patrick Wade, a permanent resident of the United States and a native and citizen of Jamaica. The testimony of Wade and David Zitzkat established the following facts. Wade retained the defendant and paid him $4000 to represent him in the deportation proceeding. A series of hearings was held by the INS regarding Wade’s deportation. The defendant was unprepared at the first hearing and failed to explain to Wade what had transpired at the second hearing. Wade had to “assume” that the defendant was working on his case. A final hearing on Wade’s deportation was scheduled for April 13,1989, at which neither the defendant nor Wade appeared. According to Wade, the defendant had misinformed him about the hearing date. In Wade’s absence, the INS issued an order of deportation against him. On April 19, 1989, the defendant appealed the deportation order to the Board of Immigration Appeals. Thereafter, Wade retained Zitzkat to represent him. At Zitzkat’s request, Wade obtained his file from the defendant. The file contained a notice from the INS dated December 22,1988, referring to Wade and addressed to M. David Fried-land, which stated in relevant part: “Please take notice that the above captioned case will be heard by an Immigration Judge on April 13,1989 @ 4:00 PM at the office of the Immigration Judge . . . .” The notice stated further: “Since you are the attorney/representative of record, this will be the only notice of this hearing issued. The office of the Immigration Judge will not notify your client.” The file also contained an appeal form and an affidavit dated April 19,1989, regarding Wade’s case. The appeal papers, which were signed by the defendant, represented that the only notice of any proceedings that the defendant or Wade had received had been a letter sent to Wade requesting that he appear before the INS on April 19, 1989.

B

COUNT II - FRANCIS NKWO

Francis Nkwo testified to the following facts. In October, 1988, Nkwo paid the defendant $750 to assist him in obtaining legal resident status through the INS amnesty program. In the subsequent months, the defendant failed to keep appointments that he had scheduled with Nkwo. In addition, Nkwo was unable to contact the defendant by telephone and for at least one month the defendant’s telephone number was not in service. The defendant failed materially to assist Nkwo with his immigration case and did not return any of the money Nkwo had paid him.

C

COUNT III - MARIE BEAUVOIS

Marie Beauvois testified as follows. In August, 1988, Beauvois retained the defendant and paid him $500 to represent her in a dissolution action. The defendant failed to obtain any pertinent information from Beauvois regarding her marriage. Beauvois called the defendant regularly for several months but he never returned her calls. In addition, the defendant did not keep appointments that he had scheduled with Beauvois. Beauvois saw the defendant on only two occasions, first, when she retained him and paid the $500, and once thereafter when she did not have an appointment. The defendant did not return any of the money Beauvois had paid for his services. Beauvois ultimately retained another lawyer to represent her in the dissolution action.

D

COUNT IV - JOSHUA ELNISTON

Joshua Elniston testified as follows. In January, 1988, Elniston retained the defendant to represent him in a workers’ compensation case. Elniston paid the defendant a total of approximately $600. The last time Elniston saw the defendant was on March 16, 1989, when he paid the defendant $300. A hearing was scheduled on Elniston’s claim for June 12,1989. Prior to the hearing date, Elniston called the defendant repeatedly at his office and at home but was unsuccessful in contacting him. The defendant neither called nor wrote to Elniston before the hearing date. Ultimately, another attorney was appointed to represent Elniston.

We have held that clear and convincing evidence is the proper standard of proof in attorney disciplinary proceedings. Statewide Grievance Committee v. Presnick, 215 Conn. 162, 171-72, 575 A.2d 210 (1990). The defendant argues that the evidence presented by the committee at the April 10, 1990 hearing failed to satisfy this standard. We disagree.

In the presentment, the committee alleged that the defendant was guilty of misconduct not occurring in the actual presence of the court, involving his character, integrity and professional standing and conduct. Specifically, the committee alleged that the defendant had violated the following Rules of Professional Conduct: (a) rule 1.1 with respect to Wade and Elniston; (b) rule 1.3 with respect to Wade, Beauvois and Elniston; (c) rule 1.4 with respect to Nkwo, Beauvois and Elniston; and (d) rule 3.3 with respect to Wade.

Rule 1.1 requires that an attorney provide a client with “competent representation,” which includes the “thoroughness” and “preparation” reasonably necessary to the representation. Wade testified that the defendant had been unprepared for Wade’s first deportation hearing. In addition, the defendant failed to appear or to notify Wade to appear at the April 13, 1989 hearing, which resulted in the entry of an order of deportation against Wade. The defendant also failed to prepare for or appear at the hearing on Elniston’s workers’ compensation claim. As a result of the defendant’s failure, another lawyer was appointed to represent Elniston. On the basis of the foregoing testimony, the trial court could reasonably have concluded that there was clear and convincing evidence that the defendant had violated rule 1.1.

Pursuant to rule 1.3, a lawyer must “act with reasonable diligence and promptness in representing a client.” Zitzkat testified that the defendant’s file on Wade contained a notice from the INS dated December 22, 1988, regarding Wade’s April 13, 1989 deportation hearing. Although the notice was incorrectly addressed to M. David Friedland, it was sent to the defendant’s business address and contained sufficient information to alert the defendant that Wade’s case was scheduled for a hearing on April 13,1989. The defendant failed to act with reasonable diligence and promptness in responding to the notice, which resulted in the entry of a deportation order against Wade. Beauvois testified that the defendant failed to obtain any relevant information from her regarding her marriage. The defendant’s lack of diligence in representing Beauvois led'her to retain another lawyer. Finally, Elniston testified that the defendant provided no assistance in preparing for a hearing on his workers’ compensation claim. The trial court could reasonably have concluded from the foregoing testimony that there was clear and convincing evidence that the defendant had violated rule 1.3.

In accordance with rule 1.4, a lawyer “shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” In addition, the rule provides that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Nkwo, Beauvois and Elniston testified that the defendant had failed to keep them informed about the status of their cases. The defendant failed to keep appointments or otherwise reasonably communicate with Nkwo and Beauvois. Moreover, he did not respond to efforts by Nkwo, Beauvois and Elniston to contact him and, for a period of time, did not even maintain a working telephone number. The trial court could reasonably have concluded that the testimony of Nkwo, Beauvois and Elniston established by clear and convincing evidence that the defendant had violated rule 1.4.

The committee also alleged that the defendant had violated rule 3.3 with respect to his representation of Wade. Rule 3.3 (a) (1) provides that “[a] lawyer shall not knowingly . . . [m]ake a false statement of material fact or law to a tribunal.” When Zitzkat received Wade’s file from the defendant, he discovered the December 22,1988 notice from the INS notifying the defendant that Wade’s deportation hearing was scheduled for April 13, 1989. The notice stated that this would be the only notification of the hearing that either the defendant or Wade would receive. In the appeal papers that the defendant filed with the Board of Immigration Appeals on Wade’s behalf, however, the defendant stated that the only notice of any proceedings had been a letter sent to Wade requesting that he appear before the INS on April 19, 1989. Relying on Zitzkat’s testimony and the documents in the defendant’s file on Wade, which were admitted as exhibits at the April 10, 1990 hearing, the trial court could reasonably have concluded that the defendant had made a false statement of material fact to a tribunal in violation of rule 3.3.

In addition to the testimony of Wade, Nkwo, Beauvois and Elniston, the committee presented evidence, which the defendant has not disputed, that the defendant had previously been disbarred in another state. The trial court had the unique opportunity to assess the evidence presented in light of all the circumstances, including the demeanor and conduct of the witnesses. See Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Our review on appeal is limited to a determination of whether the trial court’s assessment of the evidence was clearly erroneous. Id., 391-92. We are persuaded that the trial court could reasonably have concluded that there was clear and convincing evidence that the defendant had engaged in professional misconduct as alleged in the presentment.

II

The defendant next claims that the trial court abused its discretion in denying his request for a continuance. The defendant argues that he was unprepared for trial on April 10, 1990, because in a prior presentment against him, the committee’s attorney had treated the first hearing as a status conference. The committee contends that one attorney’s handling of the earlier presentment was not binding on it and that the defendant had been notified prior to April 10,1990, that the committee planned to “go forward” on that date. We conclude that the trial court acted within its discretion in denying the defendant’s request for a continuance.

At the April 10 hearing, the defendant’s attorney, Norman Whitney, requested a continuance on the defendant’s behalf. Whitney informed the court that the defendant, who was living in Florida, had called him the previous day and had asked him to attend the hearing to ask for a continuance. Whitney acknowledged that the defendant had been notified of the hearing date when he was served with the presentment on March 8,1990, and had since been informed by the committee’s attorney, Darlene Reynolds, that she was “going forward” with the presentment. Whitney told the court that on the basis of the defendant’s previous experience with the committee, the defendant had interpreted the term “going forward” to mean a status conference and not an evidentiary hearing.

At the May 29, 1990 hearing on the defendant’s motion to open, the defendant presented evidence regarding his communications with the committee prior to the April 10 hearing date. The defendant called Christine Whitehead, the attorney who had tried the prior presentment on behalf of the committee. Whitehead testified that when she was handling the first presentment, she had informed the defendant that it was her practice to treat the first court appearance as a status conference. She testified that she usually followed this practice because of the volume of cases in Hartford but could not represent how other attorneys for the committee handled presentments.

The defendant also called Reynolds, who testified as follows. On March 8, 1990, when the defendant was served with the presentment, he had indicated to Reynolds that he would not be able to attend the April 10 hearing for financial reasons and asked if she would consider agreeing to factual stipulations. On March 23, Reynolds contacted the defendant by telephone in Florida to discuss relevant factual stipulations, but they were unable to agree on any. At that time, Reynolds informed the defendant that she planned to “go forward” with the hearing on April 10. The defendant again told Reynolds that he could not afford to attend the hearing. After the defendant referred to how Whitehead had handled the prior presentment, Reynolds told him that she did not intend to continue this matter. On April 9, the defendant telephoned Reynolds to ask about the status of the case. When Reynolds informed him that the hearing was scheduled for the following day, the defendant reiterated that he could not afford to attend and suggested that she ask for a continuance. Reynolds told the defendant that she did not intend to request a continuance.

“ ‘A motion for continuance is addressed to the discretion of the trial court, and its ruling wall not be overturned absent a showing of a clear abuse of that discretion.’ . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of trial. . . . ‘Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.’ ” (Emphasis added; citations omitted.) Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). Because there is no “mechanical” test for determining whether the denial of a continuance constitutes an abuse of discretion, we must consider the particular circumstances of each case, paying special attention to the reasons presented to the trial court at the time the request was denied. State v. Beckenbach, 198 Conn. 43, 47-48, 501 A.2d 752 (1985); Ridgeway v. Ridgeway, 180 Conn. 533, 539, 429 A.2d 801 (1980).

The principal reason presented by Whitney in support of the defendant’s request for a continuance was that the defendant had relied on the procedure followed in the prior presentment, and therefore expected the April 10 hearing to be a status conference only. We have stated that a defendant does not have an “absolute” right to a continuance. State v. Beckenbach, supra, 47; State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). In the present case, despite his receipt of timely notice of the hearing and the fact that Reynolds had told him nearly three weeks earlier that she did not intend to follow Whitehead’s practice and that she would be “going forward” on the scheduled date, the defendant argues that he reasonably relied on the procedure followed by Whitehead in the prior presentment. The trial court concluded, however, that as an experienced attorney, the defendant could reasonably be expected to understand that “going forward” meant a trial or evidentiary hearing. We agree. Accordingly, we are persuaded that the trial court acted within its discretion in denying the defendant’s request for a continuance.

Ill

The defendant also claims that he was denied his constitutional right to effective assistance of counsel. Specifically, the defendant claims that Whitney provided ineffective assistance at the April 10, 1990 hearing in that he allowed the trial judge to set the pace of the proceedings, failed to review relevant files, failed to call witnesses or to present evidence, and failed to raise the claim that April 10 was a major Jewish holiday in support of the defendant’s request for a continuance. The committee argues that the defendant’s claim is not properly before this court because the right to effective assistance of counsel attaches only in criminal proceedings.

Pursuant to the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, a defendant in a criminal proceeding has the right to the assistance of counsel. We have held that defendants in certain civil proceedings also have a constitutional right to the assistance of counsel. See Lavertue v. Niman, 196 Conn. 403, 412, 493 A.2d 213 (1985) (indigent defendants in state-supported paternity actions have a right, under both the federal and state constitutions, to court-appointed counsel at state expense). The right to counsel necessarily implies a right to the effective assistance of such counsel. See State v. Anonymous, 179 Conn. 155, 159, 425 A.2d 939 (1979) (right to effective assistance of counsel is implicit in statute mandating the assistance of counsel in proceedings for the termination of parental rights). “The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court. . . .” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 483, 595 A.2d 819 (1991), cert. denied, U.S. , 112 S. Ct. 1170, 117 L. Ed. 2d 416 (1992). The defendant has cited no authority in support of his argument that an attorney in a disciplinary proceeding has a constitutional right to the effective assistance of counsel. Because we discern no special circumstances in this case that would warrant departure from the general rule that civil proceedings ordinarily do not give rise to a right to counsel, we decline to address the merits of the defendant’s claim.

IY

The defendant’s final claim is that the trial judge should have recused himself from this action. The defendant contends that the judge, the Honorable Samuel Freed, had a personal bias against him as a result of having presided over previous matters involving the defendant. In support of his claim, the defendant cites certain comments made by Judge Freed at the April 10, 1990 hearing. The defendant argues, therefore, that Judge Freed should have recused himself in accordance with canon 3 (C) (1) (a) of the Code of Judicial Conduct. The committee argues that the defendant’s claim of judicial bias was not properly preserved and, therefore, this court should decline to address it. We agree with the committee.

The defendant did not properly preserve his claim of judicial bias because he failed to move for disqualification of Judge Freed at the April 10, 1990 hearing. “As a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. . . . Failure to request recusal or move for a mistrial can be construed as the functional equivalent of consenting to the judge’s presiding over the trial.” (Citations omitted; internal quotation marks omitted.) Lo Sacco v. Young, 20 Conn. App. 6, 8-9, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). “Only in the most exceptional circumstances will this court consider a claim that was not raised [below]. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” (Citations omitted; internal quotation marks omitted.) Dubois v. General Dynamics Corporation, 222 Conn. 62, 68-69, 607 A.2d 431 (1992); see Practice Book § 4185. We conclude that no such exceptional circumstances exist in the present case, and, therefore, we decline to review this claim.

In proceedings against an attorney for professional misconduct, “[the] defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights. . . . The ultimate question is whether he is a fit person to be longer allowed the privileges of being an attorney. . . .” (Citations omitted.) Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941). The defendant attorney’s “relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” Id.

In the present case, the defendant received timely notice of the charges against him and was given the opportunity to be heard. The defendant’s attorney appeared at the hearing and had the opportunity to present evidence, cross-examine witnesses and make argument on the defendant’s behalf. We are persuaded that the defendant has not been deprived of his rights in any substantial manner and, accordingly, we affirm the order of the trial court permanently disbarring the defendant from the practice of law in the state of Connecticut.

The judgment is affirmed.

In this opinion Peters, C. J., Callahan and Borden, Js., concurred.

Berdon, J.,

dissenting. Because I believe that the trial court abused its discretion in failing to grant a reasonable continuance, I disagree with part II of the majority opinion.

Although I agree with the majority’s conclusion in part IV that the defendant, M. Daniel Friedland, did not properly preserve the claim of judicial bias, the colloquy between the trial court and counsel for the defendant upon which the defendant relies for this claim cannot be viewed in isolation from the rest of the appeal. That colloquy, taken in conjunction with the following facts, clearly supports the defendant on the issue of a continuance: (l)the attorney from the statewide grievance committee who handled the first presentment, and whom the defendant thought was also handling the second presentment, admitted that it was her practice to treat the first court appearance as a status conference only; (2) before the court date, the defendant represented that he had insufficient funds to travel to Connecticut from Florida; (3) the defendant’s wife was taken to the hospital shortly before the hearing; (4) the defendant was required to care for his five year old son; and (5) the defendant did not previously request a continuance.

Furthermore, there was no showing that witnesses would be inconvenienced if the court granted the continuance, nor was there any indication that the profession or individual clients would be subject to any harm as a result of the continuance. Indeed, the defendant was not actively practicing in Connecticut and he previously agreed to an interim suspension of his right to practice law.

Attorneys, like other citizens, are entitled to due process of law and justice. “ ‘Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded.’ Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). ‘In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.’ Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941).” Statewide Grievance Committee v. Presnick, 215 Conn. 162, 169, 575 A.2d 210 (1990). Because I would find that the trial court had abused its discretion in not allowing the continuance, I would remand the case for a new hearing. Accordingly, I dissent.

       The defendant also filed a motion for articulation and correction of the record for appeal, which he subsequently amended. The trial court granted the defendant’s amended motion with respect to his request that the record include the transcript of a hearing concerning a prior presentment held on November 3,1989, before the Honorable Norris L. O’Neill in the Superior Court at Hartford.

       Although this spelling appears in the transcript of the April 10, 1990 hearing, the witness’ name appears as “Okonkwo” in the record and briefs.

       This witness’ name also appears as “Elmistun” in the transcript of the April 10, 1990 hearing and as “Elliston” in the parties’ briefs.

       Elniston’s claim was still pending at the time of the April 10, 1990 hearing.

       Rule 1.1 of the Rules of Professional Conduct provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
      Rule 1.3 of the Rules of Professional Conduct provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.”
      Rule 1.4 of the Rules of Professional Conduct provides: “(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      “(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
      Rule 3.3 of the Rules of Professional Conduct provides: “(a) A lawyer shall not knowingly:
      “(1) Make a false statement of material fact or law to a tribunal;
      “(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
      “(3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
      “(4) Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
      “(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
      “(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
      “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

       In his brief on appeal, the defendant claims that Wade informed him that the hearing was scheduled for April 19, 1989. He claims further that he did not receive the December 22,1988 notice until after April 19,1989, when he requested Wade’s file from the INS. Because we conclude that the defendant knowingly forfeited the opportunity to testify at the April 10, 1990 hearing; see part II infra; we decline to address these claims on appeal.

       Zitzkat initially filed an appeal on Wade’s behalf representing the same facts. After discovering the December 22, 1988 notice in the defendant’s file, however, Zitzkat amended Wade’s appeal to state that the defendant had in fact received notice of the April 13, 1989 hearing. Zitzkat included a claim of ineffective assistance of counsel in the amended appeal.

       At the April 10, 1990 hearing, the committee’s attorney initially stated that the defendant had been disbarred in Illinois in 1982, but other references in the transcript and briefs are to Indiana.

       Whitney also represented to the court that the defendant “[did not] have a dime” to pay for traveling to Connecticut and that the defendant’s wife had been in the hospital “the day before.” At the hearing on the defendant’s motion to open on May 29,1990, the defendant testified that his wife had been placed in a rehabilitation program after the prior presentment and that he had communicated that fact to Reynolds. Reynolds testified, however, that she did not recall any conversations with the defendant regarding his wife’s health prior to the April 10,1990 hearing. The defendant requested the trial court’s permission at the May 29 hearing to document his wife’s medical problems. The court ruled that, even assuming evidence of the defendant’s wife’s medical condition as of April 10, he'was incorrect, nevertheless, in assuming that April 10 was to be only a scheduling date and status conference. The transcript reveals that the court did not deny the defendant’s motion to open the judgment on the basis of insufficiency of evidence concerning the wife’s medical problems. Accordingly, we conclude that the trial court did not abuse its discretion in denying the motion to open the judgment.

       The defendant claimed for the first time at the May 29 hearing that the trial court should have granted him a continuance because April 10 was a major Jewish holiday. Reynolds testified that the defendant had made no reference to the holiday in a telephone conversation they had on April 9, 1990. Because the defendant’s attorney did not raise this claim at the April 10 hearing, the trial court acted within its discretion in denying this basis for opening the judgment.

       During argument on the defendant’s request for a continuance, the following colloquy took place:
      “The Court: What were the exact words you used?
      “Ms. Reynolds: Attorney Friedland was told that the Statewide Grievance Committee was prepared to go forward on this date. There was no indication of any misunderstanding of what the term going forward meant. I would suggest that there is no ambiguity in the term going forward. Any understanding or any agreement that Attorney Friedland had with another Attorney on another matter, I would suggest, does not have any relevance to this proceeding today.
      “Attorney Friedland was properly served over four weeks ago. And he did indicate four weeks ago that he did not plan on attending for financial reasons.
      “Mr. Whitney: Might I add one thing, Your Honor?
      “The Court: Sure.
      “Mr. Whitney: The going forward is something a Judge can rule upon. But, Mr. Friedland—and the record before Judge Norris O’Neill will show that [he] never had any arrangement with Christine Whitehead as to procedure—he wanted to try it. He was not allowed to. He thought, this is exactly the same thing.
      “The Court: But he was told. I mean, any lawyer, in my experience knows that going forward doesn’t mean entering a plea. I mean, going forward to me always meant to me only one thing, the trial would proceed or the evidence would be taken. That’s what going forward means to anybody who has ever been in a Court. I would think—Mr. Friedland is not a babe in the woods here. He knows what going to Court and what going forward means, as I am sure you do.”

         We note that despite this claim, the defendant retained the same attorney to represent him in this appeal.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” In Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the United States Supreme Court held this right applicable to the states through the fourteenth amendment to the United States constitution.
      Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”

       In his brief, the defendant refers to two matters: (1) an ex parte restraining order against the defendant brought by his wife before Judge Freed in May, 1988; and (2) a judgment debtor proceeding in December, 1988.

       After Whitney represented to the trial court that the defendant’s wife had been in the hospital; see footnote 9, supra; the following colloquy transpired:
      “The Court: His wife? Which wife is that?
      “Mr. Whitney: Dan Friedland’s.
      “The Court: Wasn’t he divorced recently?
      “Mr. Whitney: No. He is married.
      “The Court: I was sitting when he was getting a divorce.
      “Mr. Whitney: Well, she’s been married to him for at least seven years.
      “The Court: They’re re-united?
      “Mr. Whitney: No. It’s been seven years is all I can tell you.
      “The Court: I think I know a little bit about the case because I sat and heard part of it. So I know what you say is not quite the whole story.
      “Mr. Whitney: What’s that? I certainly haven’t misrepresented.
      “The Court: About his marriage, that she’s some sort of an alcoholic?

        “Mr. Whitney: This is not the wife from whom he was divorced. This is [a] present bona fide living marriage according to the laws of the State.
      “The Court: How long has he been married to this woman?
      “Mr. Whitney: I would say seven years, off the top of my head. They have a son, five. At any rate, his ability to be here is absolutely null.
      “The Court: I was sitting in the family court, 1987, I believe.
      “Mr. Whitney: Your recollection is correct to the degree that that present wife—they were squabbling over temporary custody of a child in Massachusetts.
      “The Court: Is this the same woman he is married to?
      “Mr. Whitney: Same woman.
      “The Court: So that divorce was never finished?
      “Mr. Whitney: There was never any entry of a claim for divorce. There was no complaint for a divorce. There was a familial problem through Family Services over a child in Massachusetts.
      “The Court: There was an application, because I remember I granted it, for a temporary restraining order in that case.
      “Mr. Whitney: There was a temporary restraining order granted.
      “The Court: That’s of no great moment here. But that’s the same wife he is married to?
      “Mr. Whitney: Yes.”

       Canon 3 (C) (1) (a) of the Code of Judicial Conduct provides: “C. Disqualification.
      “(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned including but not limited to instances where:
      “(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

       See footnote 15 of the majority opinion for pertinent portions of colloquy.