author: Callahan, J.

text:
    White Oak Corporation v. Department of Revenue Services
    (12551)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued November 12, 1985
    decision released January 21, 1986

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert L. Klein, assistant attorney general, for the appellant (defendant).

      David J. Heinlein, with whom, on the brief, was Yolanda Sefcik, for the appellee (plaintiff).
   Callahan, J.

The defendant, the department of revenue services, has appealed from a judgment rendered in favor of the plaintiff White Oak Corporation, a highway construction contractor. The sole issue on appeal is whether the Appellate Court erred when it sustained the judgment of the trial court which held that the plaintiff was not liable for the sales and use tax assessed by the defendant on certain services and rentals. That decision was based on a conclusion that the services and rentals in question were resold to the state and therefore exempt from the Connecticut sales and use tax. White Oak Corporation v. Department of Revenue Services, 2 Conn. App. 165, 166, 476 A.2d 639 (1984); see General Statutes §§ 12-411 (9), (10), (12), 12-410 (1), (2), (4). We find error.

The parties have stipulated to the following facts: From March 1,1976, through February 28, 1979, the plaintiff contracted with the state department of transportation (hereinafter DOT) to construct various highways and bridges. Under the terms of each of the contracts, the plaintiff was obligated to provide watchmen, trafficmen and flagmen at such locations and for such periods as ordered by the state engineer, who was an employee of the DOT. The plaintiff, pursuant to these contracts, purchased the services of watchmen, trafficmen and flagmen from various private agencies and police departments, for which it paid a total of $280,020.13. When it purchased these services it issued resale certificates to the private agencies and the police departments. The DOT paid the plaintiff $272,468.58 for these services, an amount in accord with the schedule of prices provided in each contract. Also pursuant to its various contractual obligations, the plaintiff rented highway flashers for a total of $27,383.17, for which it issued resale certificates. In accordance with contract provisions, the DOT paid the plaintiff $21,355.50 for these rentals. The issuance of a resale certificate by the plaintiff relieved its suppliers of liability for the sales and use tax and imposed liability for the tax on the plaintiff only if it made use of the service or property. General Statutes §§ 12-411 (9), (10), (12), 12-410 (1), (2), (4).

The defendant assessed a tax deficiency of $13,735.11 on the plaintiff based on the purchase price of the services of the watchmen, trafficmen and flagmen and on the rental price of the highway flashers. The plaintiff petitioned for an oral hearing under General Statutes (Rev. to 1979) § 12-418 (2). On February 25, 1980, a conference was held relative to the plaintiffs petition for a reassessment of the sales and use tax deficiency. On March 11,1980, the defendant confirmed its assessment for the following reasons: “The services of watchmen service, trafficmen and flagmen are taxable in full. The services are rendered in performance of the contract provision and do not constitute a resale of [sic] a governmental agency. . . . The tax on the rental of the flasher [sic] was properly assessed. The transaction does not constitute a resale to a governmental agency.”

Pursuant to General Statutes § 12-422, the plaintiff appealed the defendant’s assessment of a tax deficiency to the Superior Court. The parties submitted a stipulation of facts to Hon. Howard W. Alcorn, state trial referee, acting as atrial court, who rendered judgment for the plaintiff. White Oak Corporation v. Department of Revenue Services, 39 Conn. Sup. 234, 475 A.2d 343 (1982). He concluded that “the plaintiff’s purchase of the services of watchmen and traffic officers and the rental of lighting equipment was not a ‘use’ of those items by the plaintiff but rather it was a sale of those items to the state, a tax exempt agency. General Statutes § 12-421 (a). Consequently, the plaintiff is not liable for a sales and use tax on those items.” Id., 239. The defendant then appealed to the Appellate Court. In a per curiam opinion the Appellate Court, relying upon the opinion of the trial court, found that there was no error committed below. White Oak Corporation v. Department of Revenue Services, 2 Conn. App. 165, 476 A.2d 639 (1984).

We therefore must decide whether the Appellate Court was correct when it upheld the decision of the trial court. That court identified the issue before it to be “whether the trial court erred in finding that the services in question and the rental of equipment were resold to the state and were therefore exempt from the use tax.” Id., 166. In an appeal, after certification from the judgment of the Appellate Court, “the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). We will only consider those issues which have been raised by the petition for certification. In the present case, therefore, we need to determine only whether the Appellate Court erred in upholding the decision of the trial court that the services and rentals in question were sold by the plaintiff to the DOT rather than being used by the plaintiff. If the Appellate Court is correct in its conclusion, the plaintiff is exempt from tax because the sales and use tax is not imposed on tangible personal property or services held for resale or subsequently sold to the state of Connecticut. General Statutes §§ 12-410, 12-411, 12-412 (1).

Pursuant to General Statutes (Rev. to 1977) § 12-408 (1), a sales tax is “imposed on all retailers at the rate of seven per cent of the gross receipts of any retailer from the sale of all tangible personal property . . . sold at retail or . . . from . . . [t]he rendering of any service described in any of the subparagraphs (A) to (M), inclusive, under subdivision (j) of said subsection (2) of section 12-407 . . . The terms “sale” and “selling” under these statutes are defined, in pertinent part, to mean and include “(j) the rendering of certain services for a consideration . . .’’among which are “(C) . . . agencies providing personnel services” and “(E) . . . patrol work, watchmen and armored car services” and “(k) the leasing or rental of tangible personal property of any kind whatsoever . . . .’’General Statutes (Rev. to 1977) § 12-407 (2). Also, General Statutes § 12-411 (1) imposes a use tax on the “storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state or the acceptance or receipt of any services constituting a sale . . . .” The liability for this use tax is on “[e]very person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer . . . .” General Statutes § 12-411 (2).

The difference between a sales and a use tax is that generally a sales tax is imposed on items acquired within the state and a use tax is imposed on items acquired outside the state for use within this state. Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 600, 362 A.2d 847 (1975). Although the record does not disclose the source of the services and property acquired by the plaintiff, on the stipulated facts it is not necessary to distinguish between a sales and a use tax in order to determine the plaintiff’s tax liability.

Under General Statutes § 12-411 (9), it is presumed, for the purposes of the use tax, that any tangible personal property or service sold for delivery in this state is for use in this state and therefore subject to tax unless the person making the sale proves the contrary. There is also a presumption, for the purpose of the sales tax, that all gross receipts are subject to the tax until the contrary is established. General Statutes § 12-410 (1). The seller is relieved of his burden of proving nontaxability in either instance if the purchaser gives him a certificate that the service or tangible personal property is held for resale. General Statutes §§ 12-411 (9), (10), 12-410 (1), (2). It is clear that the plaintiff held a valid sales and use tax permit under § 12-409 and was authorized to issue resale certificates. General Statutes §§ 12-410 (2), 12-411 (10).

The plaintiff claims that it is exempt from the sales and use tax because the services of the watchmen, trafficmen and flagmen were purchased and the highway flashers were rented with the intent to resell them to the state, as evidenced by the issuance of the resale certificates, and were, in fact, resold to the state, a tax exempt entity. Under General Statutes §§ 12-411 (12) and 12-410 (4), however, a purchaser who gives a resale certificate is subject to a tax if he makes any use of the service or property “other than retention, demonstration or display while holding it for sale in the regular course of business.” Therefore, if the plaintiff used the services or property rather than reselling them to the state, the plaintiff would be liable for the use or sales tax. The basic issue addressed by the Appellate Court was whether the items involved became, under the contracts between the parties, contracts for services or contracts to sell the items to the state.

Generally, taxing statutes are strictly construed. Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981); Naylor v. Brown, 166 Conn. 581, 587, 353 A.2d 709 (1974). “Any statute creating a tax exemption must likewise be strictly construed against the party claiming an exemption.” Caldor, Inc. v. Heffernan, supra; see Connecticut Theater Foundation, Inc. v. Brown, 179 Conn. 672, 677, 427 A.2d 863 (1980); Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976). Therefore, in the present case we must strictly construe this sale for resale exemption against the plaintiff. The law allows the plaintiff to use this exemption only if the services and rentals were clearly for resale rather than being “used” by the plaintiff.

We do not agree with the Appellate Court that the degree of control given the DOT by contract over the services and rentals in question supports a determination that those services and rentals were resold by the plaintiff to the state. Although the DOT did exercise a substantial degree of control over the deployment of those services and rentals, the purpose of retaining such control was to ensure the safety of the public. The commissioner of transportation by statute has the duty of maintaining the safety of the highways. See General Statutes §§ 13a-110, 13a-116, 13a-144. The commissioner of transportation, in order to fulfill his statutory obligation, required the plaintiff to have safety personnel and warning devices and exercised control over those services and devices in order to ensure the safety of the public while the plaintiff was engaged in the construction of highways and bridges. This control, however, is not the major factor in the determination of whether there was a resale to the state. The fact that the DOT exercised control over the manner in which certain services and rentals were to be used by the plaintiff in the execution of its construction contracts does not make the state a purchaser of those services and rentals.

The court must look to the intention of the parties to the contract to determine whether the items in a contract are held for resale or were purchased for a different purpose. United Aircraft Corporation v. O’Connor, 141 Conn. 530, 537-38, 107 A.2d 398 (1954). This court held in Fusco-Amatruda Co. v. Tax Commissioner, supra, 601, that a contractor who purchased materials for the construction of a building had used the materials. That conclusion was reached because the contractor was “not in the business of selling materials. He [was] in the business of using them to build houses. . . .” Id., quoting G. S. Lyon & Sons Lumber & Mfg. Co. v. Department of Revenue, 23 Ill. 2d 180, 185, 177 N.E.2d 316 (1961). The plaintiff in the present case is in the business of constructing highways and bridges rather than in the business of reselling the services of watchmen, flagmen and trafficmen or flasher rentals. The services and rentals were used by the plaintiff, as were the materials in Fusco-Amatruda Co., because they were a necessary part of the process of constructing the bridges and highways. Even if the contract had not required that the plaintiff obtain these services and rentals, the plaintiff would have had to obtain similar services and rentals in order to ensure the safety of the public during the process of construction. Under these circumstances, therefore, the intention of the parties was for the plaintiff to use the services and rentals in the construction process rather than to resell them to the DOT.

Where the transaction is only incidental to a service performed for the purchaser, it is not considered a sale for tax purposes. United Aircraft Corporation v. O’Connor, supra, 539. In the present situation, the services and rentals provided by the plaintiff to the DOT under the contracts were merely incidental to the plaintiff s primary business of constructing highways and bridges. Under its various contracts for the construction of highways and bridges, the plaintiff was obligated to provide the personnel and warning devices for safety and security purposes. The plaintiff provided them even though their cost to the plaintiff was greater than the amount it charged the DOT pursuant to those contracts. The plaintiffs sole purpose in providing those items was to obtain and perform contracts to build highways and bridges. The plaintiff was not in the business of providing security services or warning devices. Those items were simply necessary for the plaintiff to fulfill the terms of its construction contracts.

We conclude, therefore, that the services and rentals in question were incidental to the plaintiffs performance of the construction contracts. The plaintiff did not hold them for resale. Even though the DOT exercised control over the services and rentals in question, the intent of the parties and the incidental nature of the services and rentals compels a conclusion that the plaintiff “used” them to fulfill its contracts. Thus, when we strictly construe the exemption contained in that statute, the plaintiff does not qualify for the sale for resale exemption. The Appellate Court’s conclusion, therefore, that the plaintiff was exempt from the sales and use tax because it resold the services and rentals to the state was incorrect. See General Statutes §§ 12-411 (12), 12-410 (4).

The judgment of the Appellate Court is reversed, and the case is remanded with direction that the judgment of the trial court is to be set aside with judgment to be directed in favor of the defendant.

In this opinion the other judges concurred.

       “[General Statutes (Rev. to 1979)] Sec. 12-418. reassessments. (1) petition for reassessment. Any person against whom an assessment is made under section 12-415 or 12-416 or any person directly interested may petition for a reassessment within thirty days after service upon such person of notice thereof. If a petition for reassessment is not filed within the thirty-day period, the assessment becomes final at the expiration of the period.
      “(2) oral hearing. H a petition for reassessment is filed within the thirty-day period, the commissioner shall reconsider the assessment and, if the person has so requested in his petition, shall, in his discretion, grant the person an oral hearing and shall give him ten days notice of the time and place of the hearing. The commissioner may continue the hearing from time to time, as may be necessary, and may assign the conduct of such hearing to his representative.
      “(3) decrease or increase of assessment. The commissioner may decrease or increase the amount of the assessment before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the commissioner at or before the hearing.
      “(4) finality date of order or decision. The order or decision of the commissioner upon a petition for reassessment becomes final thirty days after service upon the petitioner of notice thereof.
      “(5) due date of assessment; penalty. All assessments made by the commissioner under sections 12-415 and 12-416 are due and payable at the time they become final. If they are not paid when due and payable, a penalty of ten per cent of the amount of the assessment, exclusive of interest and penalties, shall be added thereto.
      “(6) service of notice. Any notice required by this section shall be served personally or by mail in the manner prescribed for service of notice of a deficiency assessment.”

       “[General Statutes] See. 12-422. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418,12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       General Statutes § 12-411 (9) provides: “(9) PRESUMPTION OF PURCHASE FOR use; resale certificate. For the purpose of the proper administration of this chapter and to prevent evasion of the use tax and the duty to collect the use tax, it shall be presumed that services or tangible personal property sold by any person for delivery in this state is sold for storage, acceptance, consumption or other use in this state until the contrary is established. The burden of proving the contrary is upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Lawrence Hart
    (11530)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued December 11, 1985
    decision released January 28, 1986

      Richard N. Palmer, with whom, on the brief, was Robert N. Chatigny, for the appellant (defendant).

      Steven H. Levy, special assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Mary Galvin and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Shea, J.

The defendant, Lawrence Hart, was charged with the crimes of assault in the second degree, in violation of General Statutes § 53a-60 (a) (2), and assault in the second degree with a firearm, in violation of General Statutes § 53a-60a (a). On a trial to the jury, the defendant was found guilty of assault in the second degree with a firearm and was sentenced to a term of not less than two years nor more than four years in the custody of the commissioner of correction. From this judgment the defendant appeals, claiming (1) that the state failed to prove him guilty beyond a reasonable doubt, and (2) that the trial court erred in not charging the jury on the law relating to the failure of a party to produce certain witnesses. We find no error.

From the evidence adduced at trial the jury could reasonably have found the following facts: Shortly before midnight on June 13, 1980, the victim, Louis Hall, arrived at the Bama Lounge in New Haven. He parked his car in front of the lounge and told his wife and daughter to wait for him while he attempted to purchase narcotics inside. Soon after he entered the lounge, a few of his “associates” informed him that a man known as “Sticks” was “gunning” for him. They told Mm that “Sticks” had accused the victim of having robbed him two weeks earlier. The defendant, known as “Sticks,” then entered the lounge. Hall then confronted Mm concerning the allegations. The defendant requested that they go outside. Just outside the bmlding, the defendant drew a revolver from inside Ms jacket and shot the victim.

I

The defendant’s first claim of error is that the evidence presented at trial was insufficient to support the jury’s verdict of guilty of assault in the second degree with a firearm. At the close of the state’s case, the defendant properly raised this claim by a motion for judgment of acqmttal. The gravamen of the defendant’s claim is that the uncorroborated testimony of the victim was not adequate, as a matter of law, to support the jury’s verdict of gmlty beyond a reasonable doubt. We disagree.

In reviewing a sufficiency of the evidence claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979); see State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986); State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Martin, 189 Conn. 1, 9, 454 A.2d 256 (1983).

The defendant points to a number of factors that so detracted from the victim’s credibility, that, in the absence of additional corroborative evidence, his testimony could not have supported the jury’s verdict: The victim testified that he had been convicted of five separate felonies and had been a frequent heroin user. He further testified that he had been arrested on an unrelated larceny charge the day before the shooting and had been released on bond only hours before the incident. Despite claiming to have known the defendant all his life, the victim was unable to provide the investigating officers with his surname. Finally, the victim admitted that he would have refused to testify had the defendant given him $300 to cover his medical expenses. The defendant argues that in light of these factors the trial court should have granted his motion for acquittal because the testimony was not supported by other evidence. In this regard the defendant adverts to medical testimony that the superficial wound on the victim could have been caused by something other than a bullet. He also relies upon the state’s failure to introduce any bullet fired by the defendant or the testimony of any of the “30-40” eyewitnesses to the incident who were present at the lounge.

The defendant misperceives the scope of our factual inquiry on appeal. “This court does not retry the case or evaluate the credibility of the witnesses.” State v. Amarillo, supra. “The credibility of witnesses is a matter to be resolved solely by the jury.” State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984); State v. White, 155 Conn. 122, 123-24, 230 A.2d 18 (1967). “This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” State v. Stankowski, 184 Conn. 121, 127, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).

The victim’s testimony, if believed by the jury, was sufficient to establish that the defendant assaulted him with a firearm. Because the jury presumably found the victim’s testimony to be credible, there was no need for corroborative evidence. The fact that other witnesses or corroborative physical evidence possibly could have been produced by the state to support the victim’s testimony does not in any way diminish the validity of the jury’s verdict. State v. Brown, 198 Conn. 348, 353, 503 A.2d 566 (1986). The evidence, viewed in a light most favorable to sustaining the verdict, allowed the jury reasonably to conclude, beyond a reasonable doubt, that the defendant assaulted the victim.

II

The defendant also claims that he was entitled to a jury instruction that an unfavorable inference could be drawn against the state for its failure to call the victim’s wife as a witness. We disagree.

“The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). “There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.” Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); see D'Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984); Doran v. Wolk, 170 Conn. 226, 230, 365 A.2d 1190 (1976). “To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. State v. Carrione, 188 Conn. 681, 688, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983).” State v. Amarillo, supra, 307.

The defendant has not met his burden of demonstrating that Hall’s wife was available. There was no testimony that the victim and his wife were still married at the time of the trial. Although the defendant had ample opportunity at trial to establish the availability of the victim’s wife, he failed to do so. We decline to infer her availability from the victim’s passing reference to his wife during his testimony.

Additionally, the defendant has failed to establish that Hall’s wife was a person whom the state would naturally have produced. “An inference is not raised by the bare fact that a particular person is not produced as a witness, but only when it would be natural for him to be produced if the facts known by him had been favorable.” State v. Brown, 169 Conn 692, 705, 364 A.2d 186 (1975). “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra.

There has been no showing by the defendant that the victim’s wife witnessed the shooting. To support the contention that she did witness the incident, the defendant relies on the victim’s statement: “My daughter was in the car. . . . She had seen the whole incident. My wife. You know everything just out of focus.” (Emphasis added.) This ambiguous statement does not establish that the victim’s wife witnessed the shooting. It merely places her in the car outside the lounge. There was no other evidence introduced at trial to establish that she witnessed the shooting. Because she was not shown to have been an eyewitness, she would not have been a person the state would naturally have produced as one possessing superior or peculiar knowledge material to the case. Accordingly, the trial court did not err in refusing to instruct the jury on the Secondino rule.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-60. assault in the second degree: class D felony, (a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause 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. . . .”

       “[General Statutes] Sec. 53a-60a. assault in the second degree with A FIREARM: CLASS D FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of assault in the second degree with a firearm when he commits assault in the second degree as provided in section 53a-60, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be found guilty of assault in the second degree and assault in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”


text:
    State of Connecticut v. Croney Monk
    (11814)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued December 11, 1985
    decision released January 28, 1986

      Clinton L. A. Wright, for the appellant (defendant).

      Judith Rossi, special assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, and Robert J. Devlin, Jr., assistant state’s attorney, for the appellee (state).
   Shea, J.

After a trial to a jury, the defendant, Croney Monk, was convicted of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), and of unlawful restraint in the first degree, in violation of General Statutes § 53a-95 (a). He was sentenced by the court to serve concurrent sentences for an effective term of not less than four years nor more than ten years in the custody of the commissioner of correction. From this judgment the defendant appeals, claiming that the evidence presented was insufficient to sustain a finding of guilt beyond a reasonable doubt for both crimes. We find no error.

From the evidence presented at trial, the jury could reasonably have found the following facts: On December 11,1980, the defendant was a patron in the Flaming Knights Club in New Haven. Although the victim was also present, the two did not converse while at the club. Later in the evening, the victim left the club and began to walk home. The defendant, then in his car, pulled alongside the victim and asked her where he could purchase cigarettes. The defendant then got out of his car, approached the victim and asked her to accompany him while he got some cigarettes. When she refused, the defendant forced her to enter the car and sit in the front seat between him and his cousin, Thurman Anthony. The defendant then drove to an all-night convenience store, where he left the victim in the car with his cousin while he purchased cigarettes.

The defendant then drove to East Rock Park where he told the victim that he wanted to “have some fun” with her. The victim refused his advances and exited from the car. The defendant forced her back into the car. The defendant and his cousin struggled with the victim and pulled her into the back seat. The defendant choked her while his cousin removed her pants. The defendant said that he would “tighten up on choking” if the victim resisted. The defendant then had sexual intercourse with her while his cousin held her down. The defendant’s cousin also had sexual intercourse with the victim. When the cousin wanted to have intercourse for a second time the defendant said, “No, you know, that’s it. You know, she’s not giving it up willingly. Just cut it, you know, stop.”

The defendant claims that the state failed to prove beyond a reasonable doubt (1) that he used force to compel the victim to engage in sexual intercourse, as is required by General Statutes § 53a-70 (a), and (2) that he restrained the victim under circumstances which exposed her to a substantial risk of physical injury, as is required by General Statutes § 53a-95 (a). At the close of the state’s case, the defendant properly raised these claims by a motion for judgment of acquittal. Essentially, the defendant claims that the complainant consented to the sexual act and that her uncorroborated testimony concerning the defendant’s use of force was not adequate to support the jury’s verdict. We disagree.

“The standard that applies when a jury verdict is challenged on the ground of insufficient evidence is well established. ‘When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984); State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976). The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). Each essential element of the crime charged must be established by proof beyond a reasonable doubt, “ ‘and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture.’ State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980).” State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).

“We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). “ ‘We cannot retry the facts or pass upon the credibility of the witnesses.’ Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).” State v. Penland, 174 Conn. 153, 158, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

The issue of the “use of force” is a question of fact for the jury. State v. Kish, 186 Conn. 757, 766-67, 443 A.2d 1274 (1982). The victim’s testimony, if believed by the jury, was sufficient to establish beyond a reasonable doubt that the defendant had compelled the victim to engage in sexual intercourse by the use of force. The victim testified that the defendant forced her into the car, struggled with her, choked her, and then sexually assaulted her while his cousin held her down. Although the jury could reasonably have found the defendant guilty on the basis of the victim’s testimony alone; State v. Brice, 186 Conn. 449, 458 n.10, 442 A.2d 906 (1982); her allegations were supported by the testimony of various police officers and a rape crisis counselor, who all testified to the victim’s constancy of accusation. See State v. Brigandi, 186 Conn. 521, 525-27, 442 A.2d 927 (1982). The victim’s recital of the defendant’s statements during the incident also buttresses the jury’s conclusion that the defendant was aware that the victim’s participation was not consensual. Further, before the defendant claimed to have had consensual sexual relations with the victim, he had given a false alibi to the police. From this false exculpatory story, the jury could reasonably have inferred that the defendant was attempting to cover up his criminal conduct. See State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982).

The defendant also misperceives the scope of our review with respect to his claim of insufficient evidence on the unlawful restraint charge. Under General Statutes § 53a-91 (1) “restrain” means “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commences or in a place to which [she] has been moved, without consent.” The victim testified that the defendant forced her to enter his car and compelled her to remain there by the use of force. This testimony adequately proved that the defendant had restrained her as required for a violation of § 53a-95 (a). The further statutory element of exposure “to a substantial risk of physical injury” was satisfied by the victim’s testimony that she had struggled with the defendant and that he choked her. This evidence clearly supports the jury’s finding that, had the victim continued to struggle and resist, she might have been seriously injured and thus was exposed to a “substantial risk of physical injury.” The fact that there was no evidence of physical trauma to corroborate the victim’s allegations is not determinative because the state was not required to prove actual injury, but only that the defendant exposed the victim to a substantial risk of physical injury. See General Statutes § 53a-95 (a).

It is obvious from the verdict that the jury chose to believe the state’s version of the evidence, and to disbelieve the defendant’s version. See State v. Rothenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985). It did not resort to speculation and conjecture. State v. Gay-nor, supra. On the evidence adduced at trial, the jury could reasonably have found that the defendant had committed the crimes of sexual assault in the first degree and unlawful restraint in the first degree.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class B felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       “[General Statutes] Sec. 53a-95. unlawful restraint in tiie first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”


author: Dannehy, J.

text:
    State of Connecticut v. Andre Gaston
    (11296)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued November 7, 1985
    decision released January 28, 1986

      Louis I. Parley, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, Richard Schatz and Carl Schuman, assistant state’s attorneys, and David M. S. Shaiken, legal intern, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c. His sole claim on appeal is that he was denied his constitutional right to a speedy trial. We find no error.

The following facts are relevant to the defendant’s claim. On September 8,1979, Ralph Blue was shot to death at the front door of his Hartford apartment. The defendant and two accomplices, Matthew McCoy and Thomas Browdy, were soon implicated in Blue’s murder. The defendant was arrested and charged with felony murder on September 11, 1979, and on January 17,1980, he was indicted by a grand jury. Unable to post bond, the defendant remained incarcerated from the time of his arrest until October 28, 1980, a period in excess of thirteen months, at which time the felony murder charge against him was terminated by the entry of a nolle prosequi. Thereafter, the state opened the nolle and the defendant was rearrested for felony murder on July 24, 1981. He was again indicted on that charge on October 16, 1981. Trial began on December 2, 1981, and the defendant was found guilty as charged on December 10, 1981.

The defendant claims that the delay of almost twenty-seven months between his arrest on September 11, 1979, and the commencement of his trial on December 2, 1981, violated his right to a speedy trial under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. “The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: ‘[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980).” State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). None of these factors standing alone would demand a set disposition; rather, it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 591-92.

The first issue which we address is the length of the delay. The defendant claims that the entire twenty-seven month period must be considered pretrial delay for purposes of assessing his speedy trial claim. The state, on the other hand, contends that, under United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982), and State v. Lloyd, supra, the relevant period of pretrial delay for sixth amendment purposes does not include the nine month period between the state’s entry of the nolle, on October 28,1980, and the defendant’s rearrest on July 24,1981. The speedy trial clause “is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution.” United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). In United States v. MacDonald, supra, 7, the court further held that the “Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” Whether the nine month period between the nolle and the defendant’s rearrest should be considered pretrial delay thus depends upon two factors. The first is whether the state was “acting in good faith” when it nolled the charges against the defendant. The second concerns the effect of a nolle prosequi under our law and, specifically, whether it may be considered the functional equivalent of a dismissal for purposes of speedy trial analysis.

The defendant claims for the first time on appeal that the state nolled the felony murder charge against him in bad faith. This claim must be considered in context. According to the state’s theory of the case, the defendant, McCoy and Browdy had gone to Blue’s apartment to commit a robbery. McCoy and Browdy were alleged to have acted as “lookouts” while the defendant knocked on Blue’s door. When Blue answered the door the defendant produced a handgun and demanded money. During a struggle for the handgun Blue was shot. Consequently, the state attempted to arrange a bargain with McCoy in exchange for his testimony against the defendant. By October of 1980, the state’s efforts to procure McCoy’s testimony were unsuccessful. Browdy at the time was a fugitive from justice. McCoy was tried first and, in late October, 1980, a jury acquitted him of felony murder but found him guilty of robbery in the first degree.

Thereafter, juror selection commenced in preparation for the defendant’s trial. After eleven jurors had been selected, the trial court, on October 28,1980, conducted a hearing on the defendant’s motion to suppress the handgun allegedly used in Blue’s murder. McCoy was called to the witness stand and, despite warnings from the court that he might be held in contempt, persisted in his refusal to testify against the defendant. He also stated that he would not testify if called as a witness at the defendant’s trial. After McCoy had concluded his testimony, the state nolled the charge of felony murder against the defendant. The state asserted as its reason for the nolle that without the testimony of McCoy or Browdy the remaining evidence against the defendant was insufficient to connect him with the incident leading to Blue’s death. The assistant state’s attorney further stated for the record that “if I felt there would be no way in the future to prosecute Mr. Gaston I would certainly go along with or not object to a dismissal but . . . the hope of the State quite frankly is that we will locate Browdy, bring him back in this jurisdiction and with his cooperation bring [the defendant] back to trial.” A review of the transcript of the October 28,1980 proceedings reveals that the defendant moved for acquittal on the basis of unrelated double jeopardy grounds but did not otherwise oppose entry of the nolle.

On this record we are unable to conclude that the nolle was entered in bad faith. The defendant claims on appeal that bad faith may be inferred from the fact that the state was aware, on October 28, 1980, that McCoy would continue to assert his fifth amendment privilege. We disagree. Irrespective of McCoy’s assertion of that privilege prior to his trial, in October, 1980, the state may reasonably have believed that its bargaining position with respect to McCoy would be enhanced after his conviction for robbery in the first degree. McCoy, when he reasserted his refusal to testify during the October 28,1980 proceeding, had yet to be sentenced on his robbery conviction. The trial court informed McCoy that his decision to testify against the defendant would be a consideration at the time of sentencing. The state, while aware that McCoy did not desire to testify against the defendant, obviously hoped that he would change his mind in light of his forthcoming sentencing. In fact, McCoy eventually did reverse himself and testify against the defendant at his trial. We find no support in the record for the defendant's contention that the nolle was entered in bad faith.

We must also determine whether the nolle entered in this case was the functional equivalent of a dismissal for purposes of speedy trial analysis. In United States v. MacDonald, supra, the government reindicted the defendant on murder charges more than two years after those same charges had been dismissed. The Supreme Court held that because the speedy trial guarantee extends only to those persons who stand accused of committing a crime, that guarantee did not apply after charges had formally been dismissed and before prosecution was reinitiated. Id.

We recognize that the prosecution in MacDonald was terminated by dismissal while the present case involves the entry of a nolle prosequi. Nevertheless, we do not believe that the holding in MacDonald may be distinguished on that basis. The dismissal in MacDonald, like the nolle in the present case, did not bar later reinstitution of the same charges against the defendant. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971). As with the dismissal in MacDonald, the effect of the nolle was to “end pending proceedings without an acquittal and without placing the defendant in jeopardy.” State v. Lloyd, supra, 201. Under our rules “[t]he entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” Practice Book § 727. Under our statutes “the entry of a nolle has no effect on the running of the statute of limitations; furthermore, reprosecution more than thirteen months after the entry of a nolle becomes difficult because after that time ‘all police and court records and records of the state’s or prosecuting attorney . . . pertaining to such charge shall be erased.’ General Statutes § 54-142a (c).” State v. Lloyd, supra, 210-11; cf. United States v. MacDonald, supra, 8 n.8; Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).

The United States Supreme Court has identified the policies served by the speedy trial clause. “The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald, supra, 8. It is significant that under our practice a nolle implicates none of these concerns. Upon entry of a nolle, the individual concerned is no longer a defendant in a criminal case. He stands accused of no crime and his release is unconditional. After entry of the nolle the defendant in the present case, like MacDonald, “was not under arrest, not in custody, and not subject to any ‘criminal prosecution.’ ” Id., 10. We conclude that the nine month period between the nolle and the defendant’s rearrest is not properly chargeable as pretrial delay for purposes of speedy trial analysis.

As our discussion indicates, we consider eighteen months to be the operative period of delay. The state concedes that an eighteen month delay, while not presumptively unreasonable, is sufficiently long to trigger inquiry into the remaining factors set forth in Barker v. Wingo, supra. We proceed to a consideration of those factors.

The record does not reflect any findings by the trial court as to the cause of the delay in this case. We find this deficiency in the record quite understandable in view of the defendant’s somewhat indifferent assertion of his right to a speedy trial during the proceedings below. The defendant through counsel filed a motion for a speedy trial on March 25, 1980, less than seven months after his arrest on September 11, 1979. Although the record does not clearly indicate, it appears that that motion was denied summarily by the court on the day that it was filed. The defendant has not appealed from the denial of his March 25,1980 motion, and, given the time frame which it addressed, we do not believe that an appeal from the denial of that motion would likely have been successful. Approximately six months later, on September 29, 1980, the defendant filed a pro se motion for a speedy trial. The record does not indicate whether this motion was ever granted, denied or even seen by the court. In any event, as previously discussed, the defendant’s case was nolled less than one month later, on October 28, 1980.

The defendant on appeal claims that “the reason for the delay was the prosecutor’s effort to gain an advantage over the defendant in the trial of the case.” The basis of this claim is the alleged bad faith of the prosecutor in entering the nolle on October 28, 1980. We have already considered and resolved this claim adversely to the defendant. We previously noted that the defendant did not assert bad faith during the proceedings when the nolle was entered and that, while he did move for acquittal at that time on the basis of unrelated double jeopardy grounds, the state’s entry of the nolle was not otherwise opposed. If the defendant sought further elucidation of the state’s reasons for entering the nolle, he could have moved for a dismissal under then Public Acts 1980, No. 80-313, now codified in General Statutes § 54-56bJ

We have held that even after the entry of a nolle the court retains limited jurisdiction over the case to hear such matters as the defendant’s motion to dismiss based on the alleged denial of the right to a speedy trial. State v. Lloyd, supra. Although Lloyd was decided after the October 28, 1980 proceedings, its holding assumed a fortiori that such a motion was properly raised before the entry of a nolle. See General Statutes § 54-56. Moreover, the defendant does not address in his brief any delay occurring after the October 28, 1980 nolle. Indeed, after the filing of his September 29, 1980 motion, the defendant did not again advert to his right to a speedy trial until August 17, 1984, when he filed an amended preliminary statement of issues on appeal with this court. We assume that some of the delay occurring before entry of the nolle was due to the state’s efforts to recruit McCoy as a witness. We note that the state may, within reasonable limits, postpone the trial of an accused while it attempts to gain the testimony of his accomplice. Barker v. Wingo, supra, 534; State v. Davis, 192 Conn. 739, 743-45, 474 A.2d 776 (1984). After the nolle, prosecution was not reinitiated until the defendant’s rearrest on July 24,1981, and his reindictment on October 16,1981. Thereafter, pretrial proceedings commenced on November 18, 1981, and the trial concluded with a guilty verdict on December 10, 1981.

In view of the inadequate record below and the defendant’s failure on appeal “to quantify separately any unjustifiable delay,” it is “extremely difficult for us to conclude on review that impermissible reasons contributed substantially to the delay challenged by the defendant.” State v. Morrill, 197 Conn. 507, 525, 498 A.2d 76 (1985). Upon consideration of the reasons for delay and the defendant's assertion of his right to a speedy trial, we do not find these factors to weigh heavily in the defendant’s favor.

We next consider the fourth Barker factor of prejudice. As we stated in State v. Lloyd, supra, 209, “the linchpin of the speedy trial claim is a showing of prejudice . . . .” “While it is possible that the other factors together might make a showing of prejudice unnecessary in a given case; Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); we do not find that situation here.” State v. Morrill, supra, 526. The defendant claims that the “primary prejudice” suffered in this case “was that he spent thirteen months in pre-trial incarceration which have been totally lost to his life.” As we have already noted, the defendant, unable to post bond, was incarcerated from his arrest on September 11, 1979, until his case was nolled on October 28,1980. We recognize that the avoidance of unnecessarily protracted pretrial incarceration is at the core of the speedy trial guarantee, but the fact of incarceration alone is not enough to invoke the sanctions of the speedy trial clause. The defendant does not contend that pretrial delay in any way inhibited his defense on the merits of the felony murder charge against him. See Barker v. Wingo, supra, 532. A consideration of all the factors in this case leads us to conclude that neither the defendant’s sixth amendment nor state constitutional right to a speedy trial was violated.

We finally address the defendant’s alternative claim that the pretrial delay in this case denied him due process of law. To establish a due process violation because of pretrial delay, “the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant.” State v. Morrill, supra, 522. The defendant concedes that his due process claim is “substantially similar” to his speedy trial claim. In light of our disposition of issues already considered, we do not believe that the defendant has shown that the delay in his case was wholly unjustifiable or that it resulted in substantial prejudice. Therefore, we conclude that the pretrial delay did not deny the defendant due process of law.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-56b. eight to dismissal or trial on nolle. A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”

       “[General Statutes] Sec. 54-56. dismissal OF INFORMATION BY court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”


author: Arthur H. Healey, J.

text:
    Board of Education of the Town of Fairfield v. Department of Education of the State of Connecticut et al.
    (12349)
    (12350)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued November 12, 1985
    decision released January 28, 1986

      Noel R. Newman, with whom was Kenneth B. Povodator, for the appellant-appellee (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee-appellant (named defendant).
   Arthur H. Healey, J.

The sole issue on appeal in this case, which involves the question of entitlement to special education benefits, is whether a hearing officer, appointed pursuant to General Statutes § 10-76h (c), is required to be named and served as a defendant in a subsequent appeal to the Superior Court, under General Statutes §§ 4-183 (b) and 10-76h (e).

This is a consolidated appeal of two cases with essentially identical facts. Each case involves a child residing in the town of Fairfield who was in need of special education within the meaning of General Statutes § 10-76a et seq. Each child was enrolled in a residential special education program outside Fairfield. In each case, the plaintiff board of education of the town of Fairfield (hereinafter, the town) contested its obligation to pay for the programs, in whole or in part. In each case, pursuant to General Statutes § 10-76h (c) and the Regulations of Connecticut State Agencies § 10-76h-l (e) et seq., the named defendant, the state department of education (hereinafter the department), appointed a hearing board consisting of one hearing officer. Each case was heard by a different hearing officer who constituted the hearing board. Each hearing officer ruled against the town, holding that the town was responsible for the educational costs of each child’s placement in a residential facility outside Fairfield. An administrative appeal was filed by the plaintiff town in each case pursuant to General Statutes §§ 10-76h and 4-183. The department of education, the parents or guardians of each child, and the attorney general were named as parties in the appeals.

The department filed essentially identical motions to dismiss the appeal in each case on the ground that the plaintiff “failed to name and serve the hearing officer as a defendant as required by Sec. 4-183 (b).” The trial court, Driscoll, J., granted the motions to dismiss and, in a memorandum of decision in June, 1982, found that the hearing board was an “agency” under General Statutes § 4-166 (1) and, as a result, concluded that General Statutes § 4-183 (b) had not been complied with because the hearing officer had not been served or named as a defendant. The plaintiff town appealed the trial court’s dismissals.

The first appeal, commenced in the Superior Court in September, 1981, was brought by the town to the Appellate Session of the Superior Court. The Appellate Session reversed the trial court’s decision in the first appeal and remanded the case with direction to deny the motion to dismiss. Board of Education v. State Department of Education, 39 Conn. Sup. 443, 448, 466 A.2d 343 (1983). The department petitioned this court for review of the Appellate Session’s decision, and the petition was granted in September, 1983. The second appeal, commenced in Superior Court prior to July 1, 1981, is before this court after a petition for certification by the town was granted in September, 1983.

The unusual procedural history of this appeal prompts us to comment on the focus of our review. Ordinarily, in an appeal from the Appellate Court, or in this case the Appellate Session of the Superior Court, after the granting of certification, “the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985); State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). This consolidated appeal, however, also involves an appeal, upon certification, from the decision of the trial court dismissing the plaintiff’s administrative appeal. Because certification on this consolidated appeal was limited to a specific question; Practice Book § 3154; our review will be limited to the substantive issue as set forth in the petitions for certification and as set out above.

The Appellate Session’s decision in favor of the plaintiff town held that the hearing officer or board is “merely the instrumentality of the department [of education] to hear a particular case” and that the department is the agency for purposes of the Uniform Administrative Procedure Act (UAPA). Thus, it was unnecessary to name and serve the hearing board because it is not an “agency” as defined in the UAPA. Board of Education v. State Department of Education, supra, 449. We agree.

“The legislature has delegated to the state board of education the broad and general power to supervise and control the educational interests of the state. General Statutes § 10-4. The department is the administrative arm of the state board of education. General Statutes § 10-3a. Thus, the state board, acting through the department, is the agent for the state in all matters relating to education, including special education. General Statutes §§ 10-76b, 10-76d . . . .” Board of Education v. State Department of Education, supra, 448.

In each of these cases, an administrative hearing at the state level was conducted at the request of a party who was aggrieved by a decision of the plaintiff town regarding an individualized educational program for a special education student. General Statutes § 10-76h (c). The hearing at the state level was conducted by an “impartial hearing board” established by the state board of education. Appeals from this hearing board “shall be taken in the manner set forth in section 4-183.” General Statutes § 10-76h (e).

The Uniform Administrative Procedure Act; General Statutes § 4-183; provides a statutory framework within which an appeal from an administrative agency may be taken. Section 4-183 (b) specifically provides that “[cjopies of the petition [of appeal] shall be served upon the agency and all parties of record . . . .’’The trial court, in granting the department’s motions to dismiss, interpreted this provision to require the hearing board to be named and served as a party because it was an “agency” under the UAPA.

The hearing board, established by the department of education, is not an agency for the purpose of taking an appeal under the UAPA. An “agency” is defined by General Statutes (Rev. to 1981) § 4-166 (1) as “each state board, commission, department or officer, other than the legislature, courts, judicial review council, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases.” Although the language of this statute explicitly sets forth the different entities which do and do not constitute an agency, the determination of whether the hearing officer fits within one of those categories is not clear on the face of the statute. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975).” Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The hearing officer cannot be said, under the statutory scheme, to be a “state officer” or “state board” but is rather a hearing board of the “state department” of education specifically established by statute and implemented by departmental regulations. See General Statutes § 10-76h; Regs., Conn. State Agencies § 10-76h-2 (e).

The defendant department argues that the state department of education and the hearing board appointed by it are “separate and distinct entities” and that such a distinction must be maintained “in order to be in compliance with federal law,” specifically the Education for All Handicapped Children Act (EHA), 20 U.S.C. § 1401 et seq. As proof of this need for segregating the entities, the defendant cites a Fifth Circuit case which held that the Georgia state board of education could not appoint a hearing officer and yet retain concurrent authority to reject the officer’s findings. Helms v. McDaniel, 657 F.2d 800, 805 (5th Cir. 1981), cert. denied, 455 U.S. 946, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982). The holding of Helms v. McDaniel, supra, does not impact on the issue in the case before us because it addressed the need for the finality of the hearing officer’s decision for the purposes of appeal. Rather, an analysis of the origin, existence and function of the hearing board should be undertaken. See, e.g., Hopkins v. Pac, 180 Conn. 474, 477, 429 A.2d 952 (1980). Moreover, despite the defendant department’s federal funding arguments, the “federal gloss given to procedures” is not applicable to one seeking to perfect an administrative appeal under the facts of this case.

The hearing board is the creation of the state department of education, authorized by statute, and its existence and function are limited to hearing and deciding a particular contested case. A situation somewhat analogous to the one before us is found in Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn. App. 464, 489 A.2d 408 (1985), in which the sole issue was whether the hearing officer appointed by the defendant should have been served in an administrative appeal to the trial court. The Appellate Court held that a hearing examiner appointed by the chairman of the commission does not “gain status independent of the commission. His determinations have validity only because of the authority vested in him by the chairman of the commission.” Catholic Family & Community Services v. Commission on Human Rights & Opportunities, supra, 467. Similarly, the hearing board appointed by the state board of education does not gain status independent of the department which establishes it for a single contested case. “It has no other duties and takes no part in the administrative functions of the department, as for example, policy and rule-making. It is not charged with the protection of any public interest. Cf. Rommel v. Walsh, 127 Conn. 16, 23-24, 15 A.2d 6 (1940).” Board of Education v. State Department of Education, supra, 448.

The conclusion that the plaintiffs appeal was authorized by the UAPA finds additional support in the plaintiffs observation that the definition of an “agency” under § 4-166 shows that an agency must be authorized to “determine contested cases." (Emphasis added.) Because each hearing officer or hearing board is appointed to hear and to determine only one contested case, the plaintiff town argues that it cannot, for that reason alone, be an “agency.” Not only does the hearing board hear and determine only one case, but it also must render a decision within thirty days. The life span of such a board amounts to a “brief ad hoc existence.” according to the plaintiff town. This board is truly “ad hoc” which literally means “for this; for this special purpose.” Black’s Law Dictionary (5th Ed.).

In addition, the decision rendered by the hearing board is enforced by the state board of education if the board of education of the child’s school district “does not take action on the findings or prescription of said hearing . . . board . . . .” General Statutes § 10-76h (e) (2). This statutory mandate that the state board of education or the state department of education enforce the hearing board’s ruling indicates that the hearing board is created in order to make an impartial determination of educational benefits in accordance with due process requirements. Once the board has made its determination, its existence, for all intents and purposes, is over, its raison d’etre is satisfied, and it is for the department to undertake any further action to enforce its ruling.

As the department correctly notes, there must be strict adherence to statutory provisions when taking an appeal under the UAPA. Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587-88, 418 A.2d 939 (1979); In re Nunez, 165 Conn. 435, 441, 33 A.2d 898 (1973). The plaintiff complied with all applicable statutory provisions. It was not necessary to name and serve the hearing board under General Statutes § 4-183 (b) because the hearing board is not an agency within the meaning of General Statutes § 4-166 (1) for purposes of appeal under the UAPA.

There is error in No. 12349 (CV81-194361), the judgment of dismissal is set aside and that case is remanded with direction to deny the motion to dismiss and to proceed according to law; there is no error in No. 12350 and the decision of the Appellate Session, Board of Education v. State Department of Education, 39 Conn. Sup. 443, 466 A.2d 343 (1983), is affirmed.

In this opinion the other judges concurred.

       The relevant portion of General Statutes (Rev. to 1981) § 10-76h (c) provides: “(c) The state board of education shall, on receipt of request for a hearing made in accordance with the provisions of subdivision (2) of subsection (a) or (b) of this section, establish an impartial hearing board of one or more persons knowledgeable in the fields and areas significant to such educational review of such child or pupil. Members of the hearing board may be employees of the state department of education or may be qualified persons from outside said department. No person who participated in the previous diagnosis, evaluation, or prescription of education programs or exclusion or exemption from school privileges under review, nor any member of the board of education of the school district under review, shall be a member of the hearing board.”

       General Statutes (Rev. to 1981) § 4-183 (b) provides: “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       General Statutes (Rev. to 1981) § 10-76h (e) provides in pertinent part: “Appeals from the decision of the hearing board shall be taken in accordance with section 4-183 . . . . ”

       A third case, Board of Education of the Town of Fairfield v. Connecticut State Department of Education et al., Docket No. CV80-183298, a companion case to the case remaining on appeal in No. 12349 (Docket No. CV81-194361), was resolved, and the board of education of the town of Fairfield withdrew its appeal pursuant to Practice Book § 3075 on December 21, 1984.

       The motions to dismiss also claimed that the plaintiff “failed to allege aggrievement by the hearing officer’s decision, as required by Sec. 4-183 (a).” That issue is not before us on this appeal. See Board of Education v. State Department of Education, 39 Conn. Sup. 443, 446-47, 446 A.2d 343 (1983).

       General Statutes (Rev. to 1981) § 4-166 (1) provides in pertinent part: “(1) ‘Agency’ means each state board, commission, department or officer, other than the legislature, courts, judicial review council, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases. . .

       The defendant also relies extensively on Campochiaro v. Califano, Civ. No. H-78-64 (D. Conn. 1978), which was a ruling on a motion for a preliminary injunction and on a motion to dismiss. The federal District Court found that there was a probability that the plaintiffs would prevail in their contention that local board of education members may not conduct due process hearings. Campochiaro v. Califano, supra; see also 20 U.S.C. § 1415 (c) and (e) (1); Helms v. McDaniel, 657 F.2d 800, 805 (5th Cir. 1981), cert. denied, 455 U.S. 946, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982). The state department of education is no longer allowed to appoint employees of state and local educational agencies to hearing boards in due process review proceedings. General Statutes § 10-76h (c) (2); cf. General Statutes (Rev. to 1981) § 10-76h (c).