text:
    Walter Haesche et al. v. Edward Kissner III et al.
    (14721)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued January 5—
    decision released March 18, 1994

      William H. Clendenen, Jr., with whom were Nancy L. Walker, James E. Clifford and, on the brief, David M. Lesser, for the appellants (plaintiffs).

      Mark J. Claflin, for the appellee (defendant Coleman Company, Inc.).

       March 18,1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Norcott, J.

The dispositive issue in this products liability appeal is whether the evidence before the trial court raised a genuine issue of material fact regarding whether the conduct of the manufacturer defendant, Coleman Company, Inc. (Coleman), was the proximate cause of the named plaintiffs injuries. We conclude that no genuine issue of material fact existed and that the trial court, therefore, properly granted Coleman’s motion for summary judgment. Accordingly, we affirm the judgment.

The plaintiff, sixteen year old William Haesche, brought this action against Coleman for alleged violations of the Connecticut Product Liability Act; General Statutes § 52-572m et seq.; and the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110a et seq. Coleman moved for summary judgment alleging, inter alia, that its actions did not proximately cause the plaintiffs injuries and that no genuine issue of material fact existed with respect to this claim. The trial court, Gray, J., granted Coleman’s motion for summary judgment and rendered judgment for Coleman on the complaint. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The following facts are undisputed. On April 8,1986, the named defendant, seventeen year old Edward Kissner III, purchased a Crosman Model 66 Powermaster .177 Caliber Pellet/BB air rifle (Crosman 66), manufactured by Coleman, from Caldor, Inc., a department store located in Hamden. Kissner bought the gun in order to participate in an activity that he and his friends called “war games.” Later that afternoon, Kissner, fifteen year old Christopher Millea, sixteen year old Richard Davies, and the plaintiff engaged in war games as they had on previous occasions. Armed with air rifles and wearing several layers of clothing for protection, the young men went to a wooded area, divided into two teams, dispersed and began hunting for and shooting at each other. In the course of the war games, Kissner shot at a tree behind which he knew the plaintiff was hiding. At that moment, the plaintiff stepped out from behind the tree and was struck in the eye by the BB that Kissner had fired. As a result, the plaintiff suffered serious injury to his eye.

The plaintiff filed a fourteen count complaint alleging, inter alia, that Coleman’s failure to provide adequate warnings regarding the ability of the Crosman 66 to cause serious eye injury violated the Product Liability Act and constituted an unfair trade practice under CUTPA. By his complaint, the plaintiff sought both money damages and injunctive relief.

The trial court granted Coleman’s motion for summary judgment concluding both that the risk of serious eye injury was an open and obvious danger of which Coleman had no duty to warn, and that the alleged failure to warn could not have proximately caused the plaintiff’s injury. The trial court further concluded that because the plaintiff was not the purchaser of the air rifle, he lacked standing to assert a claim under CUTPA. Thereafter, the trial court rendered judgment for Coleman on each count of the complaint in which it was named.

The plaintiff has appealed the judgment claiming, inter alia, that the trial court improperly concluded: (1) that Coleman’s conduct did not cause the plaintiff’s injuries; and (2) that the plaintiff lacked standing to assert a CUTPA violation. We now affirm the judgment of the trial court because, on the basis of the evidence before the trial court, a fair and reasonable person could conclude only that the failure to warn did not cause the plaintiff’s injuries. We, therefore, do not address the issue of whether, under Connecticut law, the risk of serious eye injury resulting from misuse of a BB gun is so “open and obvious” a danger as to obviate a manufacturer’s duty to warn.

I

The standard for appellate review of a trial court decision to grant a motion for summary judgment is well established. “Practice Book § 384 provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); see Practice Book §§ 380 and 381. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781.

The plaintiff first claims that the trial court improperly granted Coleman’s motion for summary judgment on the plaintiff’s product liability claims. The plaintiff contends that if Coleman had adequately warned Kissner of the dangers of engaging in war games, the plaintiff would not have been shot in the eye. He further contends that whether Coleman’s warnings were adequate is a question for the trier of fact and that the trial court, therefore, improperly granted Coleman’s motion for summary judgment. Conversely, Coleman argues that on the basis of the affidavits and other documentary evidence before the court, no genuine issue of material fact existed regarding whether the alleged failure to warn caused the plaintiff’s injuries. Coleman asserts that Kissner’s admissions and conduct conclusively established that the existence of a warning would not have prevented him from playing war games and that as a result even if the warnings argued for by the plaintiff were given, the plaintiff’s injuries would not have been avoided.

“In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff’s injuries.” Wierzbicki v. W. W. Grainger, Inc., 20 Conn. App. 332, 334, 566 A.2d 1369 (1989), citing Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). It is the established rule in Connecticut that “[a] product may be defective because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities.” Tomer v. American Home Products Corp., 170 Conn. 681, 689, 368 A.2d 35 (1976); Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980). Under such.circumstances, the failure to warn, by itself, constitutes a defect. See General Statutes § 52-572q.

The issue of causation in warnings cases is governed by § 52-572q (c), which states that “the [plaintiff] shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the [plaintiff] would not have suffered the harm.” Generally, questions regarding the existence of a causal link are reserved for the trier of fact. Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988); Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); however, the issue becomes one of law “when the mind of a fair and reasonable [person] could reach only one conclusion . . . .” (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989).

Applying these principles to the evidence in the record, we conclude that the trial court properly determined that no genuine issue of material fact existed regarding whether the alleged failure to warn Kissner of the dangers associated with the use of the air rifle could have proximately caused the plaintiffs injuries. In the present case, the plaintiff alleged that Coleman had failed to warn Kissner of the possibility that a BB shot from the air rifle that he had purchased could seriously injure a person’s eye. To prevail on his failure to warn claim, the plaintiff had the burden of proving that if the product had contained an adequate warning, Kissner would not have participated in the war games and, as a result, the plaintiff would not have suffered a serious eye injury.

In support of its motion for summary judgment, Coleman presented affidavits, deposition testimony, and other documentary evidence tending to show that no warning would have changed Kissner’s behavior. A review of the evidence submitted reveals the following relevant facts. Kissner was familiar with the operation and potential power of the air rifle. He testified, in a deposition, that he had used an air rifle prior to his purchase and use of the Crosman 66, and that he had known that the air rifle’s power depended on the number of times its air chamber had been pumped. He testified that prior to the day of the shooting he had shot an air rifle at birds and glass bottles and that he was aware that a BB shot from the Crosman 66 could shatter glass and kill small animals. Kissner also testified that he had engaged in war games prior to the day of the shooting, and that he had suffered welts and bruises after being struck by a BB through his clothing.

Kissner further testified that he had known that a BB shot from the Crosman 66 could seriously injure a person’s eye. In fact, Kissner testified that the young men had taken a number of precautions against injury and even adopted a set of rules in order to prevent damage to the head and eyes. They had worn extra layers of clothing and discussed wearing sunglasses and goggles on the day prior to the shooting.

Additionally, Christopher Millea testified, in a deposition, that on the day of the shooting he had worn protective goggles while participating in the war games. The precautionary rules prohibited: (1) pumping the air rifles more than two or three times, in order to minimize the velocity of the BBs; (2) shooting above the waist; and (3) shooting without first clearly identifying the target.

Kissner also testified that at the time of the shooting he had known that his parents disapproved of his using BB guns. In fact, he went to great lengths to hide his purchase and use of the gun from his mother because “she would have been very upset” and would have taken the gun away. Moreover, Kissner admitted that he had been so concerned with concealing his purchase that he had never looked at the outside or the inside of the gun’s box for any written warnings or instructions. Most importantly, Kissner testified that his father had instructed him in the use of and dangers posed by the misuse of BB guns. They had gone into the woods and shot at balloons on three or four occasions. In the course of these training sessions Kissner’s father had warned him explicitly “[n]ot to point [the gun] at anybody” and that a person was “not supposed to shoot BBs at people. It’s dangerous.”

In response, the plaintiff offered the depositions of his two expert witnesses and his own affidavit. Robert Cunitz, an expert in the areas of product safety and warnings, testified that the warnings accompanying the Crosman 66 had been inadequate, that the dangers presented by air rifles are not publicly known and are not adequately perceived through common sense, and that the failure to provide proper warnings had rendered the Crosman 66 defective. Lama Martin, a forensic ballistics expert, testified that the Crosman 66 is unreasonably dangerous because it has excessive power and velocity capability considering its intended use, target shooting. The plaintiff’s affidavit stated that, prior to the shooting, he had viewed BB guns as toys and not weapons, that he did not know that a BB could penetrate the skin or eye, and that if he had known these things, he would not have participated in the war games. The plaintiff also noted that, in response to a request for admissions, Kissner had indicated that prior to the shooting he had not known that a BB could penetrate the eye.

Viewing this evidence in the light most favorable to the plaintiff, we conclude that a fair and reasonable person could not conclude that a warning would have altered Kissner’s behavior. Although Kissner stated in his response to the plaintiffs request for admission that he did not know a BB could actually penetrate the eye, he testified in his deposition that he was aware that serious eye injury could result from his misuse of the Crosman 66. Furthermore, despite this knowledge, Kissner wilfully disregarded and disobeyed his parent’s explicit warnings and prohibitions regarding the use of air rifles. Conversely, the evidence offered by the plaintiff in opposition does not substantiate his adverse claim. The testimony of the plaintiff’s experts bears on the issue of the adequacy of the warnings in the abstract, but does not refute Coleman’s assertion that no warning would have altered Kissner’s behavior. Similarly, the plaintiff’s own affidavit does not bear on the issue of whether Kissner would have acted differently if he had been warned by Coleman. As a result, we conclude that there was no genuine issue of material fact regarding causation, and that Coleman was entitled to judgment as a matter of law. The trial court, therefore, properly granted Coleman’s motion for summary judgment on the plaintiff’s product liability claims.

II

The plaintiff next claims that the trial court improperly concluded that he did not have standing to bring a claim under CUTPA. He contends that, by marketing the Crosman 66 without adequate warnings, Coleman engaged in unfair or deceptive trade practices in violation of General Statutes § 42-110b (a). The plaintiff further claims that the record contains conflicting evidence as to whether Coleman’s actions constituted unfair trade practices and that he is, therefore, entitled to have this disputed question of fact decided by a jury. The plaintiff’s claim, however, must fail because in order to prove a private cause of action under CUTPA, the plaintiff must show not only that Coleman engaged in an unfair trade practice, but that he suffered harm as a result. General Statutes § 42-110g (a).

Our decision rests on the plain language of General Statutes § 42-110g (a). “The objective of statutory construction is to give effect to the intended purpose of the legislature. State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981).” (Internal quotation marks omitted.) Forsyth v. Rowe, 226 Conn. 818, 828, 629 A.2d 379 (1993). “Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction or a review of the legislative history." All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989).

Section 42-1 lOg (a) provides in relevant part that “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . .” (Emphasis added.) As we have noted in a number of prior decisions, this section provides a private cause of action under CUTPA, which utilizes private litigation to achieve its remedial purpose. Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 534-35, 461 A.2d 1369 (1983); Hinchliffe v. American Motors Corp., 184 Conn. 607, 616-17, 440 A.2d 810 (1981). Indeed, although CUTPA includes a number of provisions that serve to encourage private litigation; Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., supra, 535-36; the opportunities for private enforcement are not unlimited. Conaway v. Prestia, 191 Conn. 484, 494, 464 A.2d 847 (1983); see A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). The plain language of § 42-1 lOg (a) provides one limitation by requiring that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice. We have already determined, in part I, that, on the evidence before the trial court, the alleged failure to warn that the plaintiff claims is an unfair trade practice was not the cause of his injuries. We conclude therefore that, as a matter of law, the plaintiff could not establish a CUTPA violation for failure to warn because, as we determined in part I, he failed to show that he suffered harm “as a result of” the alleged violation. Consequently, the trial court was correct in rendering summary judgment for the defendant on the CUTPA claim.

The judgment is affirmed.

In this opinion the other justices concurred.

       William’s parents, Walter and Marianne Haesche, are also plaintiffs in this case. Their claims against the defendant Coleman Company, Inc., rest on the same legal and factual grounds as William’s claims. For the sake of clarity and because their claims will survive or be barred according to the disposition of the issues on appeal as applied to William, we refer to William as the plaintiff.

       The other original defendants were: Edward Kissner III; Beverly Grove, Kissner’s mother; and Caldor, Inc. These defendants are no longer involved in the case because the plaintiff settled his claims with Kissner, Grove and Caldor, Inc.

       The injunction would have restricted sales of the Crosman 66 to only those persons who were over eighteen years of age and who were in possession of a permit to carry an air rifle at the time of purchase.

       The plaintiff also claims that the trial court improperly: (1) concluded, as a matter of law, that the Crosman 66 was not defective because Coleman had no duty to warn; (2) failed to allow the jury to decide whether Coleman’s warnings were adequate; (3) concluded that the dangers of operating an air rifle were open and obvious; (4) failed to submit his claim for punitive damages to the jury; (5) failed to submit the question of “comparative responsibility” to a jury; and (6) concluded that the plaintiffs CUTPA claim was barred by a lack of privity. Because our determination on the issue of proximate cause bars both the plaintiffs product liability and CUTPA claims to which these issues relate, we need not reach these claims.
      Finally, the plaintiff claims that the trial court improperly failed to submit its negligent entrustment claims to a jury. A careful review of the plaintiff’s complaint, however, reveals that no such claim was made against Coleman. We, therefore, decline to review this claim on appeal.

       It is undisputed that the following warning was on the outside of the gun’s box: “CAUTION. NOT A TOY. ADULT SUPERVISION REQUIRED. MISUSE OR CARELESS USE MAY CAUSE SERIOUS INJURY OR DEATH. MAY BE DANGEROUS UP TO 475 YARDS (435 METERS). READ ALL INSTRUCTIONS BEFORE USING. BUYER AND USER HAVE THE DUTY TO OBEY ALL LAWS ABOUT THE USE AND OWNERSHIP OF THIS AIRGUN.”
      Kissner was asked during deposition whether he had observed any printing or writing on the outside of the box while unwrapping the gun. He replied, “No. I was in a hurry. I ripped open the box, took it out, put everything underneath the bed and left.” When asked whether he had looked inside of the box for paperwork accompanying the gun, Kissner replied, “No.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Keary Mulligan v. Allen S. Hall et al.
    (14852)
    Peters, C. J., Callahan, Norcott, Katz and Palmer, Js.
    Argued March 23—
    decision released March 25, 1994

      Kerry M. Wisser, for the appellant (plaintiff).

      Michael L. Tierney, for the appellee (intervening plaintiff Chemsearch, Inc.).

       March 25, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

The sole issue in this certified appeal is whether there is a right to appeal from a stipulated judgment that settles a personal injury action between the injured plaintiff and his alleged tortfeasors and expressly reserves the injured plaintiff’s right to appeal the allocation of the proceeds of the judgment between himself and an intervening plaintiff. The plaintiff, Keary Mulligan, brought a personal injury action against the defendants, Allen S. Hall, J.A.C.E. Transportation Company, Inc., and Housatonic Area Regional Transit. Over his protest, the trial court, West, J., granted a motion to intervene filed by the plaintiff’s employer, Chemsearch, Inc. (employer), in order to secure a workers’ compensation lien for amounts previously paid to the injured plaintiff.

The trial court, Fuller, J., rendered a stipulated judgment awarding the plaintiff $1,500,000 in damages in discharge of all claims against the defendants. The court noted the agreement of the parties that the amount of the challenged workers’ compensation lien was $200,779.10. As part of the stipulated judgment, the court stated, on the record, that the plaintiff had reserved “the right to take an appeal to challenge the question of the intervention of the action.” The stipulated judgment was rendered in the presence of counsel for the employer, who agreed that the plaintiff had his right, “whatever it is.”

The Appellate Court declined to consider the plaintiffs appeal on its merits. Mulligan v. Hall, 32 Conn. App. 203, 628 A.2d 621 (1993). The court concluded that the plaintiff had no right to appeal from a stipulated judgment without a showing that his consent to the judgment had been obtained by fraud, accident or mistake. Id., 204. In the absence of a motion in the trial court to open or to set aside the judgment, the court decided that it lacked the authority to review the stipulated judgment. Id., 205. We granted the plaintiff’s petition for certification, and now reverse.

The Appellate Court misconceived the scope and the intent of the stipulated judgment. That judgment liquidated and settled the plaintiff’s claims against the defendants. Neither the plaintiff nor the employer challenges the terms of the settlement. The only issue between them is the proper allocation of the settlement proceeds. It would therefore serve no purpose for the plaintiff to move to set aside the stipulated judgment.

The Appellate Court correctly analyzed the stipulated judgment as having the effect of a contractual agreement. See Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990), and cases therein cited. There is, however, nothing inconsistent, illogical or unlawful in an agreement between two parties that expressly or impliedly reserves the rights of one of the parties against a third party. It is commonplace, in a personal injury action, to have an injured party negotiate a settlement that results in a release of some but not all the alleged joint tortfeasors. Even without an express reservation of rights, a general release discharges only those joint tortfeasors whom the contracting parties actually intended to be released. Sims v. Honda Motor Co., 225 Conn. 401, 406, 623 A.2d 995 (1993). Similarly, even without an express reservation of rights, a creditor who enters into a settlement with a debtor discharges the debtor’s surety only to the extent that the settlement prejudices the surety. Cf. General Statutes § 42a-3-605 (d) (as amended 1991). With an express reservation of rights, a creditor retains rights against an insurer, even when the creditor’s actions have resulted in the discharge of the underlying debtor’s monetary obligations. Burritt Mutual Savings Bank v. Transamerica Ins. Co., 180 Conn. 71, 82, 428 A.2d 333 (1980). In the specific context of workers’ compensation claims, a stipulated judgment between the injured plaintiff and the tortfeasors does not bar subsequent litigation about the extent of the employer’s lien. See Love v. J. P. Stevens & Co., 218 Conn. 46, 49, 587 A.2d 1042 (1991).

In the circumstances of this case, likewise, the settlement between the injured plaintiff and the defendants properly reserved the plaintiff’s right to contest the employer’s lien on the settlement proceeds. The record unambiguously reflects that the stipulated judgment arising out of the settlement was understood by the parties thereto to have preserved the plaintiffs right to appeal that issue. The employer, through the presence of his attorney, had notice of the plaintiffs reservation of rights.

Only an appeal can afford the plaintiff the opportunity to vindicate the rights that he expressly reserved. The Appellate Court should consider the merits of his claim.

The judgment of the Appellate Court is reversed and the case is remanded with direction to reinstate the plaintiffs appeal.

       The trial court, Fuller, J., subsequently also granted the Second Injury Fund the right to intervene but it has not participated in this appeal.

       We granted the plaintiff’s petition for certification, limited to the following issue: “Did the Appellate Court properly dismiss this appeal from a stipulated judgment in a personal injury action involving a workers’ compensation claim, when the parties had reserved, in stipulating to the judgment, the right to appeal and to challenge the trial court’s earlier granting of the employer’s motion to intervene?” Mulligan v. Hall, 227 Conn. 931, 632 A.2d 707 (1993).


author: Katz, J.

text:
    State of Connecticut v. Michael J. Gilbert
    (14735)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.

      Argued January 12—
    decision released March 18, 1994

      Mark Shapera, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark Stabile, assistant state’s attorney for the appellee (state).

       March 18, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Katz, J.

The principal issue in this certified appeal is whether the defendant’s inability to remember the events of his life from two weeks before to five weeks after a motor vehicle accident prevented him from receiving a fair trial and thereby resulted in his being improperly convicted, after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b, misconduct with a motor vehicle in violation of General Statutes § 53a-57, and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. In upholding the trial court’s judgment, the Appellate Court held that under the facts of the case, the defendant had not been deprived of his rights to due process of law as provided by the fourteenth amendment to the United States constitution and article first, §§ 8 and 20, of the Connecticut constitution. State v. Gilbert, 30 Conn. App. 428, 436, 620 A.2d 822 (1993). We agree.

The pertinent undisputed facts as set forth in the Appellate Court opinion are as follows. “On August 3, 1990, at approximately 8:30 p.m., the defendant, Michael J. Gilbert, left Hank’s Restaurant on Route 6 in Brooklyn, Connecticut. He had been there for a few hours and had consumed some alcoholic drinks and pizza. Outside the restaurant, he smelled of alcohol, his speech was slurred and his balance was unsteady. He shuffled when walking and faltered getting into his vehicle, a 1981 Ford Escort. He slumped out of the driver’s window and dropped his keys. His eyes were bloodshot and watery. He was upset and planned to drive to another bar located in another town.

“Some time before 9 p.m., the defendant, driving in the westbound lane on Route 6 with his headlights off, collided with a vehicle being operated in the eastbound lane. Route 6 is a two lane road, with one lane in each direction; the posted speed limit is forty-five miles per hour. The weather at the time was clear, and the road conditions were dry. The driver of the other vehicle, a 1980 Toyota Corolla, died as a result of injuries she received in the accident. The defendant was found unconscious in the driver’s seat of his car. He smelled of alcohol, and there were several open and empty beer cans in the vehicle, as well as a number of unopened cans of beer. The point of impact appeared to be in the eastbound lane, in which the victim was driving.

“The defendant was taken to Day Kimball Hospital in Putnam, where, as part of the hospital’s regular course of diagnosis and treatment of trauma patients, a blood sample was taken. The test revealed that the defendant’s blood alcohol level per deciliter was 0.226, which translates to a 0.194 percent alcohol ratio. As a result of the accident, the defendant suffered a traumatic brain injury which resulted in temporary paralysis and coma. In addition, the defendant suffered some loss of memory.” Id., 429-30.

Following a competency hearing held pursuant to General Statutes § 54-56d, at which the court, Sfer razza, J., found the defendant competent to stand trial, the trial court considered the defendant’s motion to dismiss in which he raised the claim that he could not receive a fair trial because of his amnesia. At the hearing on the motion to dismiss, the defendant argued, pursuant to Wilson v. United States, 391 F.2d 460, 463-64 (D.C. Cir. 1968), for the application of a multifactor approach to the question of whether a defendant’s loss of memory precludes his prosecution. Under Wilson, in determining the effect of amnesia on the trial’s fairness the trial court should consider six factors: (1) the extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer; (2) the extent to which the amnesia affected the defendant’s ability to testify on his own behalf; (3) the extent to which the evidence in the suit could be extrinsically reconstructed in view of the defendant’s amnesia, including evidence relating to the crime itself as well as any reasonably possible alibi; (4) the extent to which the government assisted the defendant and his counsel in that reconstruction; (5) the strength of the prosecution’s case, with the most important consideration pertaining to whether the government’s case is such as to negate all reasonable hypotheses of innocence; and (6) any other facts and circumstances that would indicate whether or not the defendant had a fair trial. Id.

The trial court considered the specific findings required by Wilson to be “impractical and unnecessary to a determination of whether a defendant would be denied due process of law if forced to stand trial.” The court instead adopted the approach employed by the Second Circuit Court of Appeals in United States v. Sullivan, 406 F.2d 180, 186 (2d Cir. 1969). Unlike the Wilson test that requires a trial court both to conduct a pretrial competency hearing and make a posttrial determination as to whether the defendant had been able to perform “ ‘the functions essential to the fairness and accuracy of the particular proceedings in which he [was] presently involved’ ” as measured by six factors; Wilson v. United States, supra, 391 F.2d 463; the Sullivan test requires a more limited inquiry. The Sullivan test focuses on whether amnesia prevented the defendant from forming the requisite intent for the offenses charged and on whether the defendant was competent at the time of trial to consult rationally with counsel and to understand the nature of the proceedings against him. United, States v. Sullivan, supra, 186.

Although, in deciding the motion to dismiss, the trial court expressed its preference for the Sullivan test, it nevertheless performed a case-by-case analysis and concluded that the defendant’s amnesia did not severely undermine his present ability to consult rationally with his attorney or strip him of the opportunity to reconstruct events independent of his recollections. As part of its evaluation, the court reviewed both reports that had been prepared pursuant to § 54-56d for assessment of the defendant’s competency to stand trial. Each report concluded that the defendant could communicate and consult rationally with his attorney and could provide information regarding some of the related charges, including the lapse of insurance on his vehicle.

The trial court found that the only significant consequence of the accident had been the defendant’s loss of memory. The court noted that the charges did not require specific intent or guilty knowledge. It further remarked that there was an open file policy with regard to discovery, so that the defendant had access to: the state’s accident reconstruction report; names, addresses and statements of witnesses; photographs and information as to the physical evidence found at the scene; and medical information, including blood alcohol levels, on both the victim and the defendant. The court observed that the defendant could not claim alibi or mistaken identification in light of the evidence that he had been found alone in his car immediately after the accident. The court determined, therefore, that the significant issues were intoxication and causation, matters usually proven by physical evidence and independent witnesses. In denying the defendant’s motion to dismiss, the trial court concluded that the defendant had access to all of the available information necessary to reconstruct the accident, and that his amnesia did not interfere with his ability to have a fair trial.

During the trial before Judge Dunn, the defendant made a motion in limine to prevent the introduction of “testimony concerning phis] conversations . . . during the period immediately preceding the accident,” claiming that he could not confront such witnesses due to his amnesia. Specifically, the defendant argued that his amnesia prevented him from “confronting” two witnesses, Delana O’Neill and Henry Hewig, with whom he allegedly had conversed outside of Hank’s Restaurant before the accident. After the trial court denied the defendant’s motion in limine, O’Neill and Hewig testified for the state. The defendant cross-examined the latter regarding the direction Hewig saw him take outside the restaurant, the appearance of the defendant’s eyes, and certain purported inconsistencies between Hewig’s testimony and the statement that Hewig had given to the state police two days after the accident. The defendant did not cross examine O’Neill, and did not present any independent evidence regarding his encounter with those two men.

Following the jury’s verdict of guilty of all the crimes charged, the defendant moved for a judgment of aequittal, relying on the Wilson factors. The trial court denied the motion, and rendered a judgment of conviction. The defendant appealed from the judgment of conviction to the Appellate Court.

Without specifically endorsing the Wilson or the Sullivan approach, the Appellate Court concluded from its review of the record that “the trial court reasonably could have concluded that the defendant possessed a ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and ... a rational as well as factual understanding of the proceedings against him’ . . . and that the defense had an ample opportunity to reconstruct the events of the evening in question and to cross-examine witnesses, even without the defendant’s specific recollection of events.” (Citation omitted.) State v. Gilbert, supra, 30 Conn. App. 436. Accordingly, the Appellate Court affirmed the judgment of conviction. This appeal followed.

The defendant asks this court to adopt the analysis set forth in Wilson v. United States, supra, 391 F.2d 462, in considering his claim that his memory loss should have precluded his prosecution. In Wilson, the court of appeals rejected the argument that amnesia should result in an absolute bar to prosecution when the defendant is fully competent to stand trial. See Leach v. Kolb, 911 F.2d 1249, 1260-61 (7th Cir.), cert. denied sub nom. Leach v. McCaughtry, 498 U.S. 972, 111 S. Ct. 441, 112 L. Ed. 2d 424 (1990) (amnesia is not a per se bar to prosecution of an otherwise competent defendant); accord Davis v. Wyrick, 766 F.2d 1197, 1202 (8th Cir. 1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1209, 89 L. Ed. 2d 322 (1986); State v. McClendon, 103 Ariz. 105, 107, 437 P.2d 421 (1968); Reagon v. State, 253 Ind. 143, 153-54, 251 N.E.2d 829 (1969); Commonwealth v. Lombardi, 378 Mass. 612, 615, 393 N.E.2d 346 (1979); see also annot., Amnesia As Affecting Capacity to Commit Crime or Stand Trial, 46 A.L.R.3d 544 (1972 & Sup. 1993). Notwithstanding that position, the Wilson court also rejected the government’s contention that amnesia, without an accompanying disease or defect, can never render an accused incompetent to stand trial. Wilson v. United States, supra, 463; see United States v. Rinchack, 820 F.2d 1557, 1564 (11th Cir. 1987). Rather, the court held that due process requires a pretrial hearing, and in the event that a trial is held, a posttrial hearing to evaluate, on a case-by-case basis, the effect of amnesia both on the defendant’s competency to stand trial and on the fairness of the trial. Wilson v. United States, supra, 463.

This accords with the principle articulated by this court that “in all cases involving what is or is not due process ... no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of each case.” (Internal quotation marks omitted.) State v. Lovelace, 191 Conn. 545, 552, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984); see Tedesco v. Stamford, 222 Conn. 233, 244, 610 A.2d 574 (1992). We continue to adhere to that position and agree with the many jurisdictions that have either followed the Wilson approach strictly or have engaged in a factual analysis of the effect of amnesia on the fairness of the trial. See United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990); United States v. Rinchack, supra, 820 F.2d 1569; United States v. Mota, 598 F.2d 995, 998 (5th Cir. 1979), cert. denied sub nom. Flores v. United States, 444 U.S. 1084, 100 S. Ct. 1042, 62 L. Ed. 2d 770 (1980); United States v. Borum, 464 F.2d 896, 899-900 (10th Cir. 1972); State v. McClendon, supra, 103 Ariz. 107-109; State v. Ferguson, 26 Ariz. App. 285, 287-88, 547 P.2d 1085 (1976); Parson v. State, 275 A.2d 777, 787 (Del. 1971); State v. Wynn, 490 A.2d 605, 608 (Del. Super. 1985) Aldridge v. State, 247 Ga. 142, 146, 274 S.E.2d 525 (1981); State v. Owens, 248 Kan. 273, 280, 807 P.2d 101 (1991); State v. Gilder, 223 Kan. 220, 224, 574 P.2d 196 (1977); State v. Blake, 209 Kan. 196, 200-201, 495 P.2d 905 (1972); Commonwealth v. Lombardi, supra, 378 Mass. 615-16; People v. Francabandera, 33 N.Y.2d 429, 436-38, 310 N.E.2d 292, 354 N.Y.S.2d 609 (1974); State v. Vassar, 279 N.W.2d 678, 682-83 (S.D. 1979); State v. McIntosh, 137 Wis. 2d 339, 347, 404 N.W.2d 557 (1987).

In examining the factors set forth in Wilson, we particularly note that it is “the probability of prejudice, not [the] lack of memory per se, [that is] controlling.” Wilson v. United States, supra, 391 F.2d 464 n.4. All that is required is that the defendant and counsel be able to “ ‘perform the functions essential to the fairness and accuracy of the particular proceedings ....’” Id., 463. The Wilson court held that the standard of review is whether there exists a “reasonable basis for any contention that the outcome was significantly affected by [the] appellant’s lack of memory.” Id., 464 (Levanthal, J., concurring). Due to the plethora of evidence available to reconstruct events, independent of both the defendant and the victim, and the absence of a showing that the defendant was unable to present any potential defense, we conclude that the defendant’s amnesia did not “significantly affect” the outcome of the trial.

Under Wilson, the first factor is the extent to which the defendant’s amnesia has affected his ability to consult with and assist his attorney, separate and apart from his memory loss. United States v. Rinchack, supra, 820 F.2d 1569; United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978). The trial court found that the defendant had “no difficulty” understanding the nature of the proceedings or in “communicating with others,” and that he was competent to stand trial and therefore was able to assist his attorney in his defense. The defendant does not challenge that finding on appeal. The trial court also found that the defendant did not appear to have difficulty consulting with his counsel as to potential defenses and witnesses. As the defendant states in his brief to this court, his defense was to contest “two essential elements of the state’s case, namely, that he was under the influence . . . [and] that . . . the accident took place in the other driver’s lane.” There was no paucity of witnesses or evidence on these elements from the five defense witnesses: the bartender and permittee of the restaurant; an expert in accident reconstruction; and two employees of the automobile repair shop where the defendant’s car was taken. It was also reasonably possible for counsel to identify and question other potential witnesses, i.e., relatives and persons who worked with, lived near or otherwise had been associated with the defendant during that time period.

Nonetheless, the defendant contends that his inability to remember events that had occurred prior to the accident left his counsel with “no idea how to cross-examine” the state’s witnesses O’Neill and Hewig, who testified as to his intoxicated condition at the restaurant. We cannot fathom, however, how the defendant’s ability to recall these events would have served to alter or improve defense counsel’s cross-examination. The defendant failed to suggest any scenarios upon which the trial court could have ruminated.

The defendant also complains that he was “stuck with any inculpatory answers” as to his own statements given at the restaurant. The record belies this assertion. In fact, the defendant presented evidence to contradict the state’s witnesses. Tracy Elliott, the bartender, and Roland LaCharite, the permittee of Hank’s Restaurant, testified to the defendant’s apparent sobriety during the same time frame. Elliott remembered that the defendant had eaten one half of a pizza and had used the telephone, and both she and LaCharite noted that the defendant had not staggered or swayed. Elliott also indicated that O’Neill and Hewig had not been at the restaurant that night. In addition, the automobile repair shop personnel indicated that there had been leftover pizza in the defendant’s car, which neither O’Neill nor Hewig mentioned, and which might have indicated both that the defendant had been less affected by his alcohol consumption than the state’s evidence suggested and that the state’s witnesses’ observation of him had been less than accurate.

Moreover, the defendant overestimates the significance of the brief conversation O’Neill and Hewig related having had with him. According to O’Neill and Hewig, the defendant admitted that he had had a few drinks, that he was upset, that he was driving to another bar and that he did not want a taxi. The state did not, however, rely on that testimony as its primary evidence. On the contrary, the state’s case largely depended upon later events, such as the reconstruction of the accident itself and the medical testimony regarding the effects of the defendant’s blood alcohol level. Furthermore, the evidence of what had occurred prior to the accident consisted largely of behavioral and not testimonial evidence. The defendant’s actions—his shuffling, faltering, unbalanced walk, his slumping out his window, and his dropping of his keys—together with his bloodshot and watery eyes, his slurred speech, and his odor of alcohol, were significantly more important to the state’s case than his few words.

The second factor under Wilson, whether amnesia affected the defendant’s ability to testify on matters other than the event that gave rise to his amnesia; see United States v. Rinchack, supra, 820 F.2d 1569; also weighs against him. Because “inebriation and causation” were, as the trial court remarked, the only real issues in the case, in the absence of any claim that he was otherwise unable to take the stand and testify, the defendant presumably could have provided, for example, the following pertinent exculpatory testimony: that he was not an alcoholic; that he did not drink and drive; that he knew the road and the accident site; that O’Neill and Hewig were not truthful; and that he could not have been inebriated in light of the fact that he had eaten one half of a pizza.

Other testimony that could have been exculpatory, but for the defendant’s amnesia, was very limited. As the trial court found, this case did not involve a defense of alibi or mistaken identity: “[T]he question of operation appears uncontrovertible given the evidence that the defendant was found alone in his own vehicle after the crash and witnesses observed him driving onto Route 6 just before the crash.” Although the defendant was obviously unable to provide a specific self-serving denial of wrongdoing, he has not provided any explanation or offer of proof regarding the type of testimony that he could have offered, the reasons he did not take the stand, or why we should presume that, but for the amnesia, he could have established a defense. “It is always possible that a defendant could gain an acquittal by perjuring himself, or more conscionably by presenting such a sympathetic figure on the witness stand that the jury would have used the mercy-dispensing power that it has in fact, though not in law. But such possibilities of prejudice, however realistic, do not suffice to prohibit the entry of a judgment on a verdict of guilty.” Wilson v. United States, supra, 391 F.2d 465 (Leventhal,- J., concurring). The present record fails to demonstrate that the defendant would not have made the same tactical decision not to testify even if amnesia had not been a factor. Furthermore, the record does not indicate that, aside from his amnesia, the defendant’s ability to testify had otherwise been unfairly limited.

The third inquiry under Wilson explores whether the facts were capable of being reconstructed independent of the defendant’s own recollection. Here, there was an abundance of evidence as to what had occurred: four witnesses, two for the state and two for the defense, testified to events at the restaurant immediately preceding the accident; four accident reconstruction experts, three for the state and one for the defense, along with a large amount of physical evidence, served to reconstruct the accident itself; and medical evidence informed the jury about the defendant’s blood alcohol level shortly after the accident, and offered “relation back” testimony as to his alcohol level, and its effects on his ability to drive. Finally, as the trial court noted, because the offenses at issue do not require specific intent or knowledge, they were “particularly amenable to reconstruction, despite the defendant’s memory loss, because the defendant’s contemporaneous mental state is immaterial.” See Commonwealth v. Lombardi, supra, 378 Mass. 616 (listing nature of crime as factor to examine).

The fourth factor under Wilson is the extent to which the government assisted the defense in the reconstruction of the accident. The trial court found that the state had “provided the defense with open discovery,” including a copy of a “twenty-two page accident investigation report . . . [that] provides the names and statements of the defendant’s friends who talked with him and observed his physical condition as he exited the restaurant, entered his vehicle, and drove off onto Route 6.” The report also provided the names and statements of witnesses at the accident scene, and disclosed “a wealth of physical evidence obtained at the scene and thereafter, including debris dispersal analysis, diagrams, measurements, an inventory of the contents of the vehicles, and other material pertinent to accident reconstruction. It comprises medical information regarding the cause of death of the victim and the medical condition of the defendant, including the blood alcohol ratio for both parties.” The report also indicated that “photographs of the accident scene and the vehicles on the date of the accident and at later times” had been taken.

When the state called Trooper Robert Mantho of the Connecticut state police to the stand, the defendant noted that he had no information about him. The defendant now argues that because the state failed to disclose Mantho’s “role and conclusions prior to his testimony,” the state failed adequately to assist him in the reconstruction of the accident. This argument is without merit.

Mantho, the state’s accident reconstruction expert in the present case, testified that his conclusions were “dependent on the photograph evidence, primarily, and the documented measurements that were provided to me by the on-scene troopers.” As the trial court indicated at the hearing on the motion to dismiss, the defendant had the twenty-two page accident report that disclosed all material pertinent to accident reconstruction. In addition, when the defendant complained that he did not know who Mantho was, other than that he was an expert witness, the court offered defense counsel additional time to prepare for cross-examination and to call a rebuttal expert, and allowed him to discuss Mantho’s testimony with the defense expert despite the sequestration order. The defendant has not claimed a violation of any Practice Book provision, and does not dispute that the state had an open file policy in this case. Nor does the defendant suggest that his own reconstruction expert had been hindered in any way. There is little question that the defendant, therefore, received ample assistance by the state in reconstructing the accident.

The fifth factor under Wilson is the strength of the state’s case. The record reflects that three separate officers with experience in accident reconstruction opined, based upon an extensive evaluation of all pertinent evidence at the scene, that the defendant’s car had crossed over into the victim’s lane. Two lay witnesses, friends of the defendant with no apparent reason to accuse him falsely, testified that they had been concerned about his driving because his actions and speech had indicated that he was under the influence. An expert medical witness also testified that shortly after the accident the defendant had had a blood alcohol level of 0.226, far above the level required for conviction under General Statutes § 14-277a (a) or (b). The defendant argues that there was conflicting testimony, both as to whether he had been under the influence and as to the lane in which the vehicles collided. The mere fact that there was conflicting evidence, however, does not necessarily make the state’s case weak. In sum, the evidence, if credited, amply supported the jury’s verdict.

The last area of inquiry under Wilson allows the trial court to consider any other relevant criteria in assessing whether the defendant’s amnesia should preclude his prosecution. For the first time in this case, the defendant claims that “he could not exercise his civil rights due to his mental disability,” i.e., his amnesia, in violation of article first, § 20, of the Connecticut constitution. We decline to consider this claim because, as the state correctly points out, the defendant did not raise it in his appeal to the Appellate Court or in the certified question to this court. On certification, our focus is on the judgment of the Appellate Court. Cahn v. Cahn, 225 Conn. 666, 671, 626 A.2d 296 (1993); Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 599, 539 A.2d 101 (1988). The defendant did not raise the state constitutional claim in the Appellate Court and it does not appear anywhere in the opinion of the Appellate Court. Unlike State v. Joyce, 30 Conn. App. 164, 188-90, 619 A.2d 872 (1993) (Heiman, J., dissenting), rev’d, 229 Conn. 10, 639 A.2d 1007 (1994), in which the Appellate Court dissent relied on the state constitution and we specifically certified the issue, neither situation is present here.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       We granted the defendant’s petition for certification limited to the following issue: “Under the circumstances of this case, did the defendant’s amnesia prevent him from receiving a fair trial?” State v. Gilbert, 225 Conn. 917, 623 A.2d 1025 (1993).

       General Statutes § 54-56d provides in pertinent part: “(Formerly See. 54-40). COMPETENCY TO STAND TRIAL, (a) COMPETENCY REQUIRED. DEFINITION. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) PRESUMPTION OF COMPETENCY. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
      “(c) REQUEST FOR EXAMINATION. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.
      “(d) EXAMINATION OF DEFENDANT, report. If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the superior court, there is probable cause to believe that the defendant has committed the crime for which he is charged, the court shall order an examination of the defendant as to his competency. The court either may appoint one or more physicians specializing in psychiatry to examine the defendant or it may order the commissioner of mental health to conduct the examination either by a clinical team consisting of a physician specializing in psychiatry, a clinical psychologist and a psychiatric social worker, or by one or more physicians specializing in psychiatry. If the commissioner of mental health is ordered to conduct the examination, he shall select the members of the clinical team or the physician or physicians. If the examiners determine that the defendant is not competent, they shall then determine whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order under this section. The court may authorize a physician specializing in psychiatry, a clinical psychologist or a psychiatric social worker selected by the defendant to observe the examination. Counsel for the defendant may observe the examination. The examination shall be completed within fifteen days from the date it was ordered. The examiner or examiners shall prepare and sign, without notarization, a written report and file it with the court within ten days of the completion of the examination. On receipt of the written report, the clerk of the court shall cause copies to be delivered immediately to the state’s attorney and to counsel for the defendant.
      “(e) hearing. The court shall hold a hearing as to the competency of the defendant no later than ten days after it receives the written report. Any evidence regarding the defendant’s competency, including the written report, may be introduced at the hearing by either the defendant or the state. If the written report is introduced, at least one of the examiners must be present to testify as to the determinations in the report, unless his presence is waived by the defendant and the state. Any member of the clinical team shall be considered competent to testify as to the team’s determinations. A defendant and his counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent.
      “(f) COURT FINDING OF COMPETENCY OR INCOMPETENCY. If the court, after the hearing, finds that the defendant is competent, it shall continue with the criminal proceedings. If it finds that the defendant is not competent, it shall also find whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section.”

       In ruling on the motion in limine, the trial court, Dunn, J., did not engage in an evaluation like the one conducted in connection with the motion to dismiss. Instead, the trial court expressed familiarity with the earlier ruling and then denied the motion. Following the trial, the defendant made a motion for judgment of acquittal and again relied upon Wilson v. United States, supra, 391 F.2d 460. Once again, the trial court, well aware of the issues, denied the motion.

       In his statement, given twenty-four hours after the accident, Hewig failed to mention that he had tried to prevent the defendant from driving. Notably, the defendant remarked, Hewig first remembered that fact eighteen months later while on the witness stand.

       As the Appellate Court explained in State v. Geisler, 22 Conn. App. 142, 162, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992), General Statutes § 14-227a requires expert evidence extrapolating the results of a blood alcohol test back to the time of the operation of the motor vehicle.

       Practice Book § 741 provides: “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials;
      “(1) Exculpatory information or materials;
      “(2) Books, tangible objects, papers, photographs, or documents obtained from or belonging to the defendant;
      “(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial;
      “(4) Copies of records or reports of physical or mental examinations of the defendant made in connection with the offense charged which are within the possession, custody, or control of any governmental agency, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority, and which are obtainable with the permission of the defendant;
      “(5) Copies of the defendant’s prior criminal record, if any, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority;
      “(6) Copies of results or reports of scientific tests, experiments or comparisons made in connection with the particular case which are known to and obtainable by the prosecuting authority and within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial; or
      “(7) Buildings, places, or portions thereof, which are in the possession, custody, or control of any governmental agency and which are material to the defense or about which the prosecuting authority intends to introduce evidence in chief at the trial.
      “In addition to the foregoing, the defendant shall be entitled to disclosure of exculpatory materials in accordance with any applicable constitutional and statutory provisions.”
      The defendant has not claimed that the state failed to disclose any report by Mantho based upon his examination of the data collected by officers at the scene.

       This exact inquiry was not made by the trial court at the hearing on the motion to dismiss. The trial court, however, did acknowledge the “wealth of physical evidence” taken from the scene, photographs of the accident scene, medical information including the blood/alcohol ratio for both drivers, as well as “other material pertinent to accident reconstruction.” This report certainly provided the trial court with a good analysis of the strengths and weaknesses of the state’s case.

       General Statutes § 14-227a provides in relevant part: “operation while UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten hundredths of one per cent or more of alcohol, by weight.
      “(b) operation while impaired. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.”

       We have said that in order for a defendant to be convicted by proof beyond a reasonable doubt, the jury must conclude that the evidence was sufficient to negate any reasonable hypothesis of innocence. State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990), and cases cited therein. This is the measure by which the evidence prong of the Wilson test is judged; Wilson v. United States, supra, 391 F.2d 464; and in this case was satisfied.

       Article first, § 20, of the Connecticut constitution provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       In State v. Joyce, 225 Conn. 911, 623 A.2d 1021 (1993), we certified the following issue: “In the circumstances of this case, were the police, while lawfully in custodial possession of the defendant’s clothing, required by either the federal or state constitution to obtain a warrant before transferring the clothing to a state laboratory and subjecting it to chemical analysis?”


author: Norcott, J.

text:
    Paupack Development Corporation v. Conservation Commission of the Town of New Fairfield
    (14763)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.

      Argued December 7, 1993—
    decision released March 24, 1994

      Gail E. McTaggart, with whom, on the brief, was Richard R. Talbot, for the appellant (defendant).

      Douglas J. Lewis, for the appellee (plaintiff).

      Richard Blumenthal, attorney general, and Joseph Rubin and Kimberly P. Massicotte, assistant attorneys general, filed a brief for the commissioner of environmental protection as amicus curiae.

       March 24,1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Norcott, J.

The dispositive issue in this appeal is whether the exemption contained in General Statutes § 22a-40 (a) (2) for construction of residential homes in wetlands as of right, that is, without the approval of a local wetlands authority, includes an exemption for construction in a subdivision lot approved by a local planning commission prior to July 1, 1974, for which no building permit has ever been issued. The defendant, the conservation commission of the town of New Fairfield (commission), appeals from the judgment of the trial court sustaining an appeal by the plaintiff, Paupack Development Corporation (Paupack), from the denial by the commission of an application from Paupack. That application sought to construct a single family house on a subdivision lot located in a wetland. The commission claims that the trial court incorrectly determined that: (1) § 22a-40 (a) (2) provided an as of right exemption from wetlands regulation for Paupack to construct a home on a subdivision lot in existence prior to July 1, 1974, for which a building permit had never been issued; and (2) regulations promulgated by the commission were controlling over more restrictive provisions of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45. We reverse the judgment of the trial court and remand the case for further proceedings.

The facts are not in dispute. In October, 1991, Paupack submitted an application for a wetlands permit to the commission to allow for the construction of a single family home and other improvements on certain property owned by Paupack in New Fairfield. The relevant property consisted of a lot in a subdivision that had been approved by the planning and zoning commission of the town of New Fairfield on August 5,1959. There are wetlands on the property. A building permit has never been issued for the property. Ninety-six percent of the lots in the subdivision in which the property is located have been improved. In short, the subject property is a lot that includes wetlands, in a subdivision approved prior to July 1, 1974, for which a building permit has never been issued. After several hearings, the commission denied Paupack’s application. Paupack appealed to the Superior Court, which sustained its appeal. The commission appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The commission claims that the trial court improperly concluded that § 22a-40 (a) (2) provides an exemption from wetlands regulation for subdivision lots existing prior to July 1,1974, for which no building permit has ever been issued. It argues that certain language added to § 22a-40 (a) (2) by No. 87-533 of the 1987 Public Acts (P.A. 87-533) ended the as of right exemption for construction on preexisting subdivision lots. It argues that such an interpretation of the statute is consistent with the legislative purpose intended by the enactment of P.A. 87-533. We agree.

The statutory history of § 22a-40 (a) (2) is helpful to our resolution of this issue of statutory construction. That history reveals a clear trend in the legislature’s treatment of wetlands regulation: the inclusion of properties within the regulatory scheme by the narrowing of blanket exemptions from regulatory oversight. Prior to 1974, a landowner could build a residential home in wetlands as of right, that is, without requiring approval from an inland wetlands commission, so long as there was an existing subdivision lot that had been approved prior to promulgation of required municipal regulations governing wetlands. General Statutes (Rev. to 1972) § 22a-40 (g).

General Statutes (Rev. to 1972) § 22a-40 was amended by No. 73-571 of the 1973 Public Acts (P.A. 73-571) to narrow this as of right exemption. As amended by P.A. 73-571, General Statutes (Rev. to 1985) § 22a-40 (a) (2) provided for construction of residential homes in wetlands as of right if (1) a building permit had been issued for the home, or (2) the construction was on an approved subdivision lot. Both of these exemptions were further qualified by the requirement that either the building permit had been issued or the subdivision had been approved by a municipal zoning board prior to the earlier of (1) promulgation of regulations by the municipality implementing the statute, or (2) July 1, 1974. The effect of this amendment of § 22a-40 was to establish July 1, 1974, as the latest date by which a building permit had been issued or a subdivision lot had been approved for such a property to be exempt from wetlands regulation.

General Statutes (Rev. to 1985) § 22a-40 (a) (2) was amended to its present form by P.A. 87-533. The purpose of the Inland Wetlands and Watercourses Act was to provide for the protection, preservation and maintenance of inland wetlands. See generally General Statutes § 22a-36. Public Act 87-533 added an additional qualification to the as of right exemption under § 22a-40 (a) (2). As amended by P.A. 87-533, § 22a-40 (a) (2) provides: “(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home (i) for which a building permit has been issued or (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1,1974, whichever is earlier, and further provided no residential home shall be permitted as of right pursuant to this subdivision unless the permit was obtained on or before July 1, 1987. . . .’’(The emphasized language is the language added by P.A. 87-533, § 2.)

The trial court determined, and Paupack argues, that the language added to § 22a-40 (a) (2) by P.A. 87-533 only limits subdivision (a) (2) (i), the building permit exemption, not subdivision (a) (2) (ii), the existing subdivision exemption. This interpretation of the language of P.A. 87-533 is erroneous as a matter of law.

“We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. . . .” (Internal quotation marks omitted.)Fahy v. Fahy, 227 Conn. 505, 512, 630 A.2d 1328 (1993); Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ...” (Internal quotation marks omitted.) Fahy v. Fahy, supra, 512.

The plain language of P.A. 87-533 provides that no residential home is permitted as a matter of right unless a building permit was obtained for that home on or before July 1, 1987. Were we to read P.A. 87-533 as suggested by the trial court, limiting its application to subdivision (a) (2) (i) of § 22a-40, rather than to subdivision (a) (2) (ii), it would have the effect of changing the date before which building permits were to have been issued for as of right construction from July 1, 1974, to July 1,1987. Construing the language of P.A. 87-533 to apply to subdivision (a) (2) (i) would have the perverse effect of increasing the potential universe of properties exempt from inland wetlands regulation as of right, from those properties for which a building permit had existed prior to July 1,1974, to those properties for which a building permit had existed prior to July 1, 1987. Such a reading of the language of P.A. 87-533 makes no sense. The original date of July 1, 1974, that was added to § 22a-40 (a) (2) by P.A. 73-571, applied to building permits in existence before the effective date of P.A. 73-571, thereby allowing construction as of right on land for which building permits had been issued prior to the effective date of P.A. 73-571. In contrast, the language of P.A. 87-533 added to § 22a-40 (a) (2) some thirteen years later could not apply to subdivision (a) (2) (i) because there were no building permits issued prior to the effective date of P.A. 87-533 that needed a grandfather clause to remain valid.

Interpreting the language of P.A. 87-533 by applying it to subdivision (a) (2) (ii) of § 22a-40 is consistent with the rules of statutory construction. Fahy v. Fahy, supra, 227 Conn. 512. Public Act 87-533 sets a deadline of July 1,1987, for the issuance of a building permit, for as of right construction of a residential home in wetlands. The problem of preexisting building permits had been addressed by the legislature when it adopted the language of subdivision (a) (2) (i) pursuant to P.A. 73-571. The language of P.A. 87-533 sets another deadline, and by its plain language is applicable to statutory subdivision (a) (2) (ii), the existing exemption for the subdivision of real property. Such a reading of P.A. 87-533 eliminated the as of right exemption for undeveloped subdivisions existing prior to 1974 for which a building permit had not been issued.

Furthermore, this reading of P.A. 87-533 is consistent with its legislative history. Commenting on the floor of the Senate concerning P.A. 87-533, Senator Michael P. Meotti remarked: “[The bill] also ends the grandfather clause subdivisions that were approved, but have never been built since the time of the adoption of this act in the early 70s.” 30 S. Proc., Pt. 9, 1987 Sess., p. 3116.

This legislative history is consistent with the policy goal of eliminating exemptions from wetlands regulation for land that had remained undeveloped long after adoption of legislation strengthening wetlands regulation. Although there were vested expectations in the ability to develop existing subdivisions when P.A. 73-571 became effective in 1974, any expectation of development for subdivisions existing prior to 1974 that had not been developed by 1987 was substantially diminished when P.A. 87-533 was adopted.

Given the plain language of P.A. 87-533, which expressly applies to “this subdivision,” i.e., subdivision (a) (2) (ii) of § 22a-40, and its legislative history, which clearly indicates a legislative intent to end the exemption for undeveloped subdivisions after July 1, 1987, we conclude that there is no as of right exemption from wetlands regulation pursuant to § 22a-40 (a) (2) for construction of residential homes on subdivision lots existing prior to July 1, 1974, unless a building permit had been issued for such a subdivision lot prior to July 1, 1987.

The judgment is reversed, and the case is remanded for a new trial limited to the issue of whether the denial of the application was supported by substantial evidence.

In this opinion the other justices concurred.

       General Statutes § 22a-40 (a) (2) provides: “(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home (i) for which a building permit has been issued or (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1, 1974, whichever is earlier, and further provided no residential home shall be permitted as of right pursuant to this subdivision unless the permit was obtained on or before July 1, 1987 . . . .”

       With regard to the second claim, the commission argues that because during the pendency of this appeal it has amended its regulations to be consistent with the requirements of state law, the amended regulations are controlling, and the determination of the trial court is moot. Paupack concedes that this issue is moot. We agree.
      General Statutes § 22a-42e provides: “application filed prior to CHANGE IN INLAND WETLANDS REGULATIONS NOT REQUIRED TO COMPLY WITH CHANGE. EXCEPTIONS. An application filed with an inland wetlands agency which is in conformance with the applicable inland wetlands regulations as of the date of the decision of such agency with respect to such application shall not be required thereafter to comply with any change in inland wetlands regulations, including changes to setbacks and buffers, taking effect on or after the date of such decision and any appeal from the decision of such agency with respect to such application shall not be dismissed by the superior court on the grounds that such a change has taken effect on or after the date of such decision. The provisions of this section shall not he construed to apply (1) to the establishment, amendment or change of boundaries of inland wetlands or watercourses or (2) to any change

        in regulations necessary to make such regulations consistent with the provisions of this chapter as of the date of such decision.” (Emphasis added.)
      In McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223-24, 492 A.2d 508 (1985), we held that the municipal regulations to be applied in a land use case are the municipal regulations in effect at the time the appellate court considers the dispute. Although McCallum was substantially overruled by § 22a-42e, it remains applicable to situations contemplated by subdivision (2) of 22a-42e.
      As it is undisputed that the commission has amended its regulations to conform with the requirements of state law, this issue is moot.

       The commission is the inland wetlands agency for the town of New Fair-field. Pursuant to General Statutes §§ 22a-36 through 22a-45, it is the entity charged with regulating the use of inland wetlands in New Fairfield.

       Paupack made three claims in its appeal to the Superior Court. They were that: (1) the lot was exempt from regulation by the commission pursuant to General Statutes § 22a-40 (a) (2); (2) the commission’s regulations were controlling over the more restrictive provisions of § 22a-40 (a) (2); and (3) the commission’s denial of its application was not supported by substantial evidence. The Superior Court sustained Paupack’s appeal on the first claim. It did not reach the claim that the denial of the application was not supported by substantial evidence. On remand, the trial court will be required to consider this remaining claim.

       General Statutes (Rev. to 1972) § 22a-40 provided in relevant part: “The following operations and uses shall be permitted in wetlands and water courses, as of right . . . (g) A residential home on a subdivision lot which subdivision has been approved as of the date of the promulgation of the municipal regulations.”

       General Statutes (Rev. to 1985) § 22a-40 (a) (2) provided in relevant part: “(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home (i) for which a building permit has been issued or (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1, 1974, whichever is earlier . . . .”

       The trial court found the use of the term “subdivision” in General Statutes § 22a-40 (a) (2) to be confusing as it is used to refer both to a subdivision of real property, and to a subdivision of the statute. A careful reading of the statute eliminates any confusion. The term “subdivision” added to § 22a-40 (a) (2) by P.A. 87-533 can only refer to a subdivision of the statute.

       For an explanation of the ambiguous use of the term “subdivision” to refer both to a portion of a statute and to a division of real property, see footnote 7.

       Senator Meotti was cochairman of the environment committee at the time of the adoption of P.A. 87-533.

       Paupack claims that because the subdivision in which its lot was located was substantially complete, by implication, its right to build on the lot had vested. See footnote 11. Paupack makes this claim pursuant to General Statutes § 22a-40 (a) (2). A vested rights claim is not supported by this statute, but may implicate constitutional rights. As noted by the attorney general in his brief as amicus curiae, however, Paupack has not raised, and we, therefore, do not consider, whether as applied to Paupack’s subdivision lot, the commission’s action pursuant to § 22a-40 (a) (2) constituted a taking under the fifth and fourteenth amendments to the United States constitution or under the constitution of Connecticut, article first, § 11. See Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987).

       As an alternative ground for affirmance, Paupack claims that because the lot that is the subject of this appeal is located in a subdivision that is substantially complete, its lot is exempt from wetlands regulation pursuant to General Statutes § 22a-40 (a) (2). We disagree.
      There is nothing in the statutory language of § 22a-40 (a) (2) that even implies an exemption from wetlands regulation for a lot existing in a subdivision approved before July 1,1974, in which the subdivision is substantially complete. Exemptions from remedial statutes are to be strictly construed. Conservation Commission v. Price, 193 Conn. 414, 423-24, 479 A.2d 187 (1984). Paupack cites no controlling authority for this proposition. Accordingly, we reject it.