text:
    STATE OF CONNECTICUT v. DAVID WILLIAM SALERNO III
    (15178)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued September 29
    decision released November 7, 1995

      Robert S. Bello, for the appellant (defendant).

      Timothy J. Sugrue, executive assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Devin T. Stilson, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The defendant, David William Salerno III, was charged with attempted possession of narcotics with intent to sell in violation of General Statutes §§ 53a-49 and 21a-277 (a).

During the state’s case-in-chief, the defendant moved to dismiss the information on the ground that the conduct of the police in arranging to have an informant make a sale of a large quantity of simulated narcotics to him was so outrageous that it deprived him of his federal and state constitutional right to due process. The trial court denied the defendant’s motion to dismiss, indicating that at that time the motion was “premature.” After the state rested, the defendant renewed his motion to dismiss. The court again denied the motion and the defendant was ultimately convicted.

On appeal to the Appellate Court, the defendant claimed that the trial court had improperly denied his motion. The Appellate Court declined to review this issue, concluding that the defendant had not presented an adequate record for review. State v. Salerno, 36 Conn. App. 161, 166, 649 A.2d 801 (1994). We granted certification limited to the question: “Did the Appellate Court properly decline to review the defendant’s claim that the trial court should have dismissed the complaint on the grounds of the state’s outrageous governmental conduct?” State v. Salerno, 232 Conn. 906, 653 A.2d 193 (1995).

After examining the record on appeal and after considering the briefs and arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       General Statutes § 53a-49 provides: “Criminal attempt: Sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      General Statutes § 21a-277 provides in relevant part: “Penalty for illegal manufacture, distribution, sale, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JON WENC v. CITY OF NEW LONDON ET AL.
    (15145)
    Callahan, Borden, Norcott, Katz and Palmer, Js.
    Argued September 20
    decision released November 14, 1995

      Donald R. Beebe, with whom was David J. ODea, for the appellant (plaintiff).

      Michael F. O’Connor, for the appellees (defendants).
   PER CURIAM.

The sole issue on appeal is whether the trial court properly granted the defendants’ motion to strike each of the three counts set forth in the plaintiffs complaint because he failed to bring his claims under General Statutes § 13a-149. The trial court con-eluded that the allegations in each of the three counts in the plaintiffs complaint supported a cause of action arising from a “highway defect.” Therefore, because § 13a-149 is the exclusive remedy against a municipality for an injury or damage sustained as a result of a highway defect; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991); the plaintiffs failure to plead a cause of action under that provision rendered his complaint legally insufficient. The trial court accordingly rendered judgment for the defendants. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The record discloses the following undisputed facts. The plaintiff was a passenger in a motor vehicle, owned and operated by George Tsipas, when the vehicle, “sliding in the north bound lane” of Pequot Avenue, “a roadway and/or public highway” in New London, struck a utility pole, on which a light had been mounted, thereby causing the plaintiff to sustain serious physical injury. The plaintiff thereafter brought this action against the city of New London and various divisions of the municipality and its employees, in which he alleged that the pole, and the condition created by it, was “permitted, allowed, created, erected, installed, owned, controlled, possessed, leased, participated in, and/or maintained” by the defendants in that they, inter alia, “allowed the pole to be placed in a highway ... by which the passage of travelers was obstructed or endangered or the highway encumbered.” The plaintiff alleged further that the defendants “ [Unreasonably and/or unlawfully failed to move said pole or take other precautions and/or remedial actions to eliminate and/or lessen the natural tendency of this pole to create danger and inflict injury upon person or property.” Claiming violations of General Statutes §§ 19a-335 and 16-228, on the basis of the aforementioned conduct, the plaintiff claimed that the defendants had created and/or maintained an absolute and negligent nuisance in the first and third counts, respectively. Additionally, incorporating the aforementioned allegations, the plaintiff claimed that the defendants’ actions or inactions were in violation of General Statutes § 52-557n.

In reliance on our recent decision in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202-203, the trial court determined that the allegations contained in counts one and three of the plaintiffs complaint supported a cause of action arising from a “highway defect, or in the language of the statute, part of a ‘defective road.’ ” The trial court concluded that “[b]ecause General Statutes § 13a-149 is the plaintiffs sole remedy for a cause of action within the terms of the defective highway statute, the plaintiffs failure to allege a cause of action under [it] is dispositive of the plaintiffs other allegations of statutory violations.” The trial court also struck the plaintiffs second count, again relying on Sanzone v. Board of Police Commissioners, supra, 192, wherein we construed § 52-557n “to provide that an action under the highway defect statute, § 13a-149, is a plaintiffs exclusive remedy against a municipality or other political subdivision ‘for damages resulting from injury to any person or property by means of a defective road or bridge.’ ”

The trial court’s thorough analysis of the plaintiffs complaint is fully supported by the record before it and by the authorities upon which it relied. We are not persuaded by the plaintiffs arguments to the contrary. It would serve no purpose to repeat what the trial court has already so aptly stated. Wenc v. New London, 44 Conn. Sup. 45, 667 A.2d 87 (1995).

The judgment is affirmed.

       General Statutes § 13a-149 provides: “Damages for injuries by means of defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Specifically, the plaintiff brought this action against the following persons and municipal entities: the city of New London, the town of New London, the selectmen, the city council, the common council, the director of public works and utilities, the department of public works and utilities, the superintendent of highways, C. Francis Driscoll, the city manager, individually and in his official capacity, Melvin J. Jetmore, Jr., Martin T. Olsen, Jr., Dorothy B. Leib, Anthony Basilica, William Nahas, William L. Satti, Leo E. Jackson, Marie Ann Gravel, Michael Fortunato, Gregory P. Massad, the police department and Richard A. Kistner, the chief of police, and James McDermott, the city engineer.

       General Statutes § 19a-335 provides: “Nuisances on highways. If any person places anything, or permits anything to remain, in a highway, or digs up the ground therein, by which the passage of travelers is obstructed or endangered or the highway encumbered, the same shall be a common nuisance, and such person shall be fined not more than fifty dollars; and the court, before which the conviction is had, shall order the defendant to remove such nuisance within thirty days, and, on his failure to do so, it shall be removed at his expense by a constable of the town, and such court may tax such expense and issue an execution therefor.”
      General Statutes § 16-228 provides: “Telegraph and telephone lines. Each telegraph company may maintain and construct telegraph lines, and, subject to the restrictions of sections 16-18, 16-248, 16-249 and 16-250, each telephone company may construct and maintain telephone lines, upon any highway or across any waters in this state, by the erection and maintenance of the necessary fixtures, including posts, piers or abutments, for sustaining wires; but the same shall not be so constructed as to incommode public travel or navigation or figure any tree without the consent of the owner, nor shall such company construct any bridge across any waters. Such lines shall be personal property.”

       General Statutes § 52-557n provides: “Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions, (a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be hable for damages to person or property resulting from: (1) The condition of natural land or unimproved property; (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable; (3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances; (9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or (10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at the time the land was sold or transferred to the political subdivision.
      “(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1,1992, resulting from any act, error or omission made in the exercise of such person’s policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person’s official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9-369b or subsection (b) or (c) of section 1-21i The provisions of this subsection shall not apply if such damage or iryury was caused by the reckless, wilful or wanton misconduct of such person.”

       To the extent that the plaintiff, on appeal, seeks to argue that the trial court should have denied the motion to strike based upon a claim under General Statutes § 7-232 or General Statutes § 13a-152, we decline to consider this argument, which should have been addressed in the first instance to the trial court. See Practice Book § 4185. Indeed, the complaint fails to allege any violation of these statutes. Furthermore, the record does not disclose a motion for articulation in which the plaintiff indicated to the trial court that it had not addressed all the issues that the plaintiff sought to have resolved. See Practice Book § 4051.


author: CALLAHAN, J.

text:
    JONATHAN MEDLEY v. COMMISSIONER OF CORRECTION
    (15086)
    Callahan, Borden, Norcott, Katz and Palmer, Js.

      Argued September 20
    decision released November 21, 1995

      Lauren Weisfeld, assistant public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (respondent).
   CALLAHAN, J.

On June 6,1986, before the trial court, S. Freedman, J., the petitioner pleaded guilty to murder in violation of General Statutes § 53a-54a and manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The petitioner’s underlying plea agreement with the state was that the state would recommend a sentence of thirty years on the count of murder and a concurrent sentence of fifteen years on the manslaughter count.

On July 18,1986, the petitioner was sentenced before a different trial court, Nigro, J., than that which had accepted his guilty pleas. After being informed by both the state and defense counsel only that the agreed upon recommendation was a total effective sentence of thirty years and after stating its intention to “impose the sentence recommended and agreed to,” the court sentenced the petitioner to thirty years on the murder count and a concurrent twenty year term on the manslaughter count. At the time of sentencing, neither the petitioner nor the state informed Judge Nigro of the discrepancy between the sentence imposed on the manslaughter count and the plea agreement.

Almost seven years later, the petitioner filed this habeas corpus petition seeking to withdraw his guilty pleas pursuant to Practice Book § 698, which allows a defendant to withdraw his or her plea in the event that “the judicial authority rejects the plea agreement” between the state and an accused. The habeas court, Sferrazza, J., dismissed the petition. The Appellate Court affirmed the dismissal, after concluding that the sentencing court, Nigro, J., had not “rejected” the plea agreement as required by § 698. Medley v. Commissioner of Correction, 35 Conn. App. 374, 646 A.2d 242 (1994). We granted certification to determine whether, under the circumstances, § 698 required the sentencing court to apprise the petitioner of his right to withdraw his plea. Medley v. Commissioner of Correction, 231 Conn. 930, 649 A.2d 253 (1994).

There is no dispute between the parties that the sentencing court intended to sentence the petitioner in accordance with his original plea agreement. Judge Nigro stated as much both at the time of sentencing and in a subsequent affidavit submitted to the habeas court. We agree with the Appellate Court that the sentencing court cannot be said to have “reject[ed] the plea agreement” within the meaning of § 698 because the thirty year effective sentence imposed was precisely the sentence that both parties had asked the sentencing court to impose. Medley v. Commissioner, supra, 35 Conn. App. 378-79. Neither counsel further explained all the terms of the agreement to the sentencing court, either before or after sentencing. The sentencing court cannot be said to have “rejected” the plea agreement because that court “follow[ed] the recommendation of the parties with regard to the sentence to be imposed . . . .” Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992).

While we agree that the sentencing court was under no duty to inform the petitioner of the right to withdraw his plea, we would modify the Appellate Court rescript. Under the circumstances of this case, the petitioner was entitled to “specific performance” of his plea agreement; State v. Niblack, 220 Conn. 270, 283, 596 A.2d 407 (1991); despite the fact that the sentencing court, rather than rejecting the plea agreement within the meaning of § 698, inadvertently imposed a sentence other than that to which the petitioner had agreed. We consequently remand the case sua sponte for imposition of the agreed upon fifteen year concurrent sentence on the manslaughter count.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the habeas court with direction to render judgment granting the petition in part and ordering the trial court to resentence the defendant in accordance with the original plea agreement.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”
      General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilly of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Practice Book § 698 provides: “If the judicial authority rejects the plea agreement, he shall inform the parties of this fact; advise the defendant personally in open court or, on a showing of good cause, in camera that the court is not bound by the plea agreement; afford the defendant the opportunity then to withdraw his plea, if given; and advise the defendant that if he persists in his guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”

       In the habeas court and later in the Appellate Court, the petitioner refused to seek specific performance of his plea agreement. In both courts, the respondent commissioner conceded that the petitioner was entitled to receive the sentence for which he had bargained.

       We certified the following question: “Whether, under the circumstances of this case, the trial court violated Practice Book § 698 by failing to apprise the petitioner that he could withdraw his plea?” Medley v. Commissioner of Correction, 231 Conn. 930, 649 A.2d 253 (1994).

       The petitioner did not seek specific performance of his plea agreement in either the habeas court or the Appellate Court. In the context of a habeas corpus petition, however, the petitioner’s rejection of a particular remedy does not alter a court’s ability “to remedy fundamental miscarriages of justice.” Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994).
      Under the unique facts of this case, where both the state and the petitioner’s counsel simply overlooked the specifics of the plea agreement when presenting the case for sentencing to Judge Nigro, where it is undisputed that Judge Nigro, had he been properly informed, would have imposed the sentence contemplated by the plea agreement, and where the respondent freely concedes that the petitioner is entitled to specific performance, the provision of the habeas corpus statute — that the court, dispose of the case “as law and justice require”; General Statutes § 52-470 (a); also requires that he be granted specific performance of the plea agreement, no more and no less.


author: BORDEN, J.

text:
    A. JAMES ZELLER ET AL. v. JOSEPH L. CONSOLINI ET AL.
    (15099)
    Peters, C. X, and Borden, Norcott, Katz and Palmer, Js.

      Argued September 26
    decision released November 21, 1995

      Charles E. Oman III, for the appellants (plaintiffs).

      Maureen E. Donahue, for the appellees (defendants).
   BORDEN, J.

The plaintiffs appeal from the judgment of the trial court in favor of the defendants, following the granting of the defendants’ motion to strike the plaintiffs’ amended complaint. In the first and third counts of the complaint, the plaintiffs sought damages for tortious interference with a business relationship and vexatious litigation, respectively. The plaintiffs claim that the trial court improperly concluded both that they had not been parties to certain underlying administrative proceedings and that, therefore, for purposes of the torts of interference with a business relationship and vexatious litigation, a termination of those proceedings in the plaintiffs’ favor could not have occurred. We agree with the plaintiffs, and reverse the judgment of the trial court.

The plaintiffs’ amended complaint alleged, and would permit the proof of, the following facts, which we must take as true for purposes of evaluating the propriety of the trial court’s ruling on the defendants’ motion to strike. Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). The plaintiffs are A. James Zeller and Torringford Commercial Associates Limited Partnership, a partnership in which Zeller is the general partner and owns the majority interest. Zeller is the owner of thirty-six acres of land located at Route 183 and Route 202 in Torrington, on which the plaintiffs propose to build a shopping mall. The defendants are members of an unincorporated association known as Neighbors Against the Mall.

In December, 1986, the plaintiffs applied to the Torrington planning and zoning commission for a zone change from R-15 (residential) to CIR (restricted commercial and industrial) of twenty-eight of the thirty-six acres. The planning and zoning commission granted that application in March, 1987. Certain defendants appealed from the decision of the planning and zoning commission to the Superior Court, Pickett, J., which dismissed their appeal in August, 1988. The defendants sought certification to appeal further to the Appellate Court, which that court denied.

In March, 1988, the plaintiffs applied to the planning and zoning commission for a zone change of forty-nine and one-half acres of land at Routes 183 and 202, including the twenty-eight acres that had been previously rezoned in 1987. The purpose of this application was to expand the restricted commercial and industrial zone from twenty-eight acres to forty-nine and one-half acres. In August, 1988, the planning and zoning commission approved this zone change, together with a development plan filed by the plaintiffs for a shopping mall at the site. Certain defendants appealed from that action to the Superior Court, Reifberg, J., which dismissed their appeal in September, 1990. The defendants sought certification to appeal further to the Appellate Court, which that court denied.

In February, 1990, the Torrington inland wetlands commission granted a permit to the plaintiffs in connection with the development of the mall. Certain defendants appealed from that decision to the Superior Court, Susco, J., which dismissed their appeal in July, 1991. Following the grant of the defendants’ certification by the Appellate Court, that court, in September, 1992, affirmed the judgment of the Superior Court dismissing the defendants’ appeal from the decision of the inland wetlands commission.

Meanwhile, in February, 1992, the defendants filed an application with the planning and zoning commission for a zone change from restricted commercial and industrial to industrial park for Zeller’s property, the same property as was the subject of the previous appeals. Pursuant to General Statutes § 8-3 (b), Zeller filed a protest against the defendants’ request for a zone change of his property. The planning and zoning commission denied the defendants’ application, and the defendants appealed from that denial to the Superior Court.

In July, 1992, pursuant to Practice Book § 99, Zeller moved to intervene as a matter of right as a party defendant in the appeal, and the court granted that motion in September, 1992. In March, 1993, the trial court, Dranginis, J., dismissed the defendants’ appeal.

In the amended complaint in this case, the plaintiffs also alleged that, in June, 1991, prior to the defendants’ application to rezone Zeller’s property, the plaintiffs had contracted to sell the property to Conroy Development Company (Conroy) of New York for $4,300,000, conditioned on the plaintiffs’ ability to deliver to Conroy a final, nonappealable zoning certificate and zoning approvals regarding the property. The defendants knew of this contract from its inception, and had filed the application for zone change and the subsequent appeal with that knowledge.

The plaintiffs’ complaint farther alleged that, given all of these facts and circumstances, the defendants’ application for a zone change of Zeller’s property, and their subsequent appeal from the denial of that application, were initiated in bad faith and with malice, with the intent to harass and intimidate the plaintiffs, and to interfere with the plaintiffs’ contract with Conroy. The complaint also alleged that these actions by the defendants culminated in proceedings that ended in the plaintiffs’ favor, and were brought without probable cause and with a malicious intent unjustly to vex and trouble the plaintiffs.

The trial court, Pickett, J., granted the defendants’ motion to strike, on the ground that Zeller was not a “party” to the zoning application proceedings or to the subsequent judicial appeal therefrom. The trial court noted that it was necessary for the plaintiffs to allege that the underlying proceedings that formed the basis of the plaintiffs’ claims had terminated in their favor. In the trial court’s view, because the plaintiffs had not been parties to the underlying proceedings, for the purposes of the torts alleged, those proceedings could not, as a matter of law, have terminated in their favor.

The trial court reasoned that the zoning proceeding was solely between the defendants and the planning and zoning commission, and that Zeller had entered those proceedings of his own volition. With respect to the judicial appeal, the court reasoned similarly that Zeller had become a party through his own motion to intervene. In the trial court’s view, the fact that Zeller’s participation in both the underlying administrative proceedings and the subsequent judicial proceedings had come about through his own efforts, rather than by virtue of action by the defendants against the plaintiffs, compelled the conclusion that the plaintiffs had not been parties to those underlying proceedings and that, as a consequence, “for purposes of stating a claim for vexatious litigation, a termination in the plaintiffs’ favor could not have occurred.” The trial court rendered judgment for the defendants, and this appeal followed.

The plaintiffs claim that the trial court improperly concluded that the facts alleged in their complaint were insufficient to constitute allegations that, for purposes of the torts of interference with a business relationship and vexatious litigation, the underlying proceedings terminated in the plaintiffs’ favor. We agree.

“We have held that a claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiffs favor. Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); Calvo v. Bartolotta, 112 Conn. 396, 397, 152 A. 311 (1930); Schaefer v. O. K. Tool Co., 110 Conn. 528, 532, 148 A. 330 (1930). In suits for vexatious litigation, it is recognized to be sound policy to require the plaintiff to allege that prior litigation terminated in his favor. This requirement serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts. See, e.g., Rainier’s Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 565-66, 117 A.2d 889 (1955). The requirement furthermore serves the interest of finality of judicial decisions, by preventing a person who was unsuccessful in the original proceeding from relitigating the same issues in a subsequent action for vexatious litigation.” Blake v. Levy, 191 Conn. 257, 263-64, 464 A.2d 52 (1983). The same requirement applies to a claim for tortious interference with a business relationship arising out of previous litigation. Id., 263-66.

We have also recognized that, for purposes of the tort of vexatious litigation, the previous litigation that terminated in the plaintiffs favor may be an administrative, rather than a judicial, proceeding. DeLaurentis v. New Haven, 220 Conn. 225, 248-49, 597 A.2d 807 (1991). The same rule governs the tort of interference with a business relationship. See Blake v. Levy, supra, 191 Conn. 263-64.

Application of these general principles to the facts of this case leads us to conclude that the plaintiffs’ complaint contained sufficient allegations that the previous proceedings — the zoning proceedings in which the defendants sought to rezone Zeller’s property, and the judicial appeal therefrom — terminated in the plaintiffs’ favor. In their complaint, the plaintiffs alleged that they had participated in the zoning proceedings by filing a protest under § 8-3 (b), and the complaint would also permit proof that the plaintiffs had appeared and argued against the attempt by the defendants to have Zeller’s property rezoned. With respect to the judicial appeal from the zoning proceeding, Zeller formally intervened as a party defendant, as he had the right to do. Practice Book § 99.

Thus, in both proceedings, the plaintiffs were “parties” in both a legal and a practical sense. It was, after all, Zeller’s property that was the subject of both proceedings. The plaintiffs intervened in both proceedings in accordance with the rights afforded to them by law. Furthermore, they participated in both proceedings to the extent permitted by law, in order to protect the zoning classification that they had previously secured for his property. It would defy reality to regard either proceeding as solely between the defendants and the planning and zoning commission.

The fact that the plaintiffs’ participation in either proceeding came about by virtue of the plaintiffs’ actions does not alter this analysis. They cannot be penalized by the procedural posture of a typical zoning proceeding or appeal. The most feasible — indeed, perhaps the only — way that a property owner can protect his property rights against the attempt by others to have his property rezoned against his will is by following the course of conduct taken by the plaintiffs.

We conclude, therefore, that, for purposes of the facts alleged, the plaintiffs were parties to the zoning proceeding and the judicial appeal therefrom. It follows, then, that the denial by the planning and zoning commission of the defendants’ application to rezone Zeller’s property, and the dismissal by the court of the defendants’ appeal from that action, constituted terminations of those proceedings in the plaintiffs’ favor.

The judgment is reversed in part, and the case is remanded with direction to deny the defendants’ motion to strike as to the first and third counts of the amended complaint, and for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 4023.

       The trial court also granted the defendants’ motion to strike the second and fourth counts of the complaint. The plaintiffs do not challenge the propriety of that ruling on this appeal.

       There is some confusion in the record regarding whether the ruling of the trial court that is the subject of this appeal involves both the first and third counts or only the third count. In the plaintiffs’fifth amended complaint, they alleged, in count one, a claim for tortious interference with a business relationship and, in count three, a claim for vexatious litigation. The trial court granted the defendants’ motion to strike that complaint, ruling that, as to both of those counts, the plaintiffs had not properly alleged that they had been parties to the underlying administrative proceedings involved in this case and that, therefore, “a termination in the plaintiffs’ favor could not possibly have occurred.”
      The plaintiffs thereafter filed their sixth amended complaint, which is the complaint involved in this appeal. In that version of the complaint, the plaintiffs added the allegation that, they claim, cured the insufficiency identified by the trial court in its ruling on their fifth amended complaint. The defendants moved to strike the amended complaint, asserting the same insufficiency, with respect to both the first and third counts, that they had asserted with respect to the previous complaint. In its memorandum of decision granting the motion to strike, the trial court interpreted the plaintiffs’ response to the motion as seeking only to preserve the viability of the third count.
      While the case was on appeal, the plaintiffs moved to rectify the record to indicate that the trial court’s ruling applied to both the first and third counts. The trial court, however, denied the motion to rectify, and the Appellate Court granted the plaintiffs’ motion for review but denied the relief requested.
      Nonetheless, it is apparent that the basis of both the first and second motions to strike was the same with respect to both the first and third counts, the basis of the trial court’s rulings on both motions was the same, and the parties in this court have treated the trial court’s ruling as applying to both the first and third counts. Under these circumstances, we consider the plaintiffs’ appeal as applying to both the first and third counts.

       Although the issues involved in this appeal, and the claims of the parties advanced with respect thereto, arguably might differ as between Zeller and the limited partnership, neither the trial court nor the parties have focused on any such difference, and have throughout these proceedings treated the two as interchangeable. We therefore do likewise. We need not address, therefore, the situation where, for example, the property owner is not also the majority interest holder in the developer partnership and where the court and parties have not treated the two as interchangeable.

       The defendants are Joseph L. Consolini, Elizabeth J. Consolini, Robert A. Rizzo, Conio C. Lopardo, Marlene R. Lopardo, Robert A. Gioiele, Donna J. Gioiele, Ronald Clifford, Richard S. Gryniuk, Mary Jane Giyniuk, Edward M. Brady, Louise H. Brady, Richard Bascetta, Kathleen Bascetta, Isobel B. Roberts, Richard R. Dwan and Georgette T. Dwan.

       General Statutes § 8-3 provides in relevant part: “Establishment and changing of zoning regulations and districts. Enforcement of regulations. Certification of building permits and certificates of occupancy site plans. District for water-dependent uses. . . . (b) Such regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter. If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission.”

       Practice Book § 99 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party.”

       For purposes of this analysis we assume, without deciding, that in order for a plaintiff successfully to assert that previous litigation terminated in its favor, it is necessary that the plaintiff had been a “party” to that litigation. But see Blake v. Levy, supra, 191 Conn. 257.


author: KATZ, J.

text:
    STATE OF CONNECTICUT v. SUSAN DEFRANCESCO
    (14971)
    Callahan, Borden, Norcott, Katz and Palmer, Js.
    Argued September 20
    decision released November 21, 1995

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Gerard Esposito, assistant state’s attorney, for the appellant-appellee (state).

      Michael J. Graham, for the appellee-appellant (defendant).

      Gurrie A. Fandozzi, Jr., filed a brief for the International Bengal Cat Society as amicus curiae.
   KATZ, J.

The dispositive issues in this appeal and cross appeal are: (1) whether the list of prohibited felidae in General Statutes § 26-40a is exclusive; and (2) whether § 26-40a is unconstitutionally vague as applied to the facts of this case. We conclude that the list of felidae is not exclusive and that the statute is not unconstitutionally vague.

The facts and procedural history relevant to this appeal are set forth as follows. “On January 27,1992, Jan Puzas, an employee of the United States Department of Agriculture, regulatory enforcement animal care division (USDA), went to 15 Bryson Avenue in Seymour to perform a prelicensing inspection in response to the defendant’s application for an exhibitor’s license for one rabbit. Puzas observed that the defendant kept one jungle cat, one bengal cat and one bobcat surrounded by a stockade fence at the back of her yard. Puzas played with the animals and took pictures of them. She later gave the pictures to Sergeant Rick Lewis and Detective Jim Williams, officers of the Connecticut department of environmental protection (DEP). On March 10, 1992, the defendant received a class three license for the rabbit from the USDA under the Animal Welfare Act. 7 U.S.C. § 2133 (1993); 9 C.F.R. §§ 2.1 through 2.11 (1993). The defendant has never been found to be exempt from General Statutes § 26-40a by the DEP.

“On February 16, 1992, the DEP, under the authority of a warrant secured after the defendant attempted to sell the three cats, removed the animals from the defendant’s premises and placed them in the care of Elaine Burk, an expert in the field of felidae and the head of Future Promise, a facility where rescued wild animals are cared for. The DEP also issued a misdemeanor complaint to the defendant charging her with a violation of General Statutes § 26-40a. Burk testified that these animals have a genetic propensity to be potentially dangerous. Burk further testified that bobcats weigh from twenty to forty-five pounds and hunt deer in Massachusetts during the winter; jungle cats weigh from fifteen to thirty pounds and a bengal cat is a cross between an Asian leopard cat and a domestic cat. Burk also testified as to the behavior of each of these animals while in her care. The bobcat bit both her and her husband and used her hind claws to cause lacerations. The jungle cat uses her claws routinely and caused a two and one-half inch bruise on Burk’s thigh. The bengal fought with the bobcat and, when Burk tried to separate the animals, the bengal attacked Burk, causing a laceration completely around her wrist and perforating her forearm four times.

“The trial court found that the defendant possessed potentially dangerous animals in violation of General Statutes § 26-40a. Specifically, the trial court found that the state proved beyond a reasonable doubt that (1) the defendant possessed a bobcat, a jungle cat and a bengal cat, (2) the defendant did not qualify for an exemption from General Statutes § 26-40a, (3) the list in General Statutes § 26-40a is nonexclusive and serves only as an example of dangerous felidae, (4) the bobcat, whether hybrid or not, is specifically included on the list, (5) the jungle cat and the bengal cat are included on the list as they are of a type similar to those set forth in the list, (6) General Statutes § 26-40a is not void for vagueness, and (7) the license for the rabbit given under the Animal Welfare Act to the defendant by the USDA does not preempt General Statutes § 26-40a. Thus, the trial court found the defendant guilty on all three counts and fined her $25.00 on each count.” State v. DeFrancesco, 34 Conn. App. 741, 743-45, 643 A.2d 271 (1994).

An appeal to the Appellate Court followed. The defendant presented two issues. First, she claimed that she is exempt from the prohibitions of § 26-40a either because: (1) she was operating a zoo; or (2) she possessed other potentially dangerous animals prior to May 23, 1983. Id., 745. The Appellate Court rejected this claim. Both the defendant’s proffered definition of zoo and that found in Webster’s Third New International Dictionary contain the element of keeping animals for public display. Because the defendant failed to present evidence at trial that she had kept these animals for public exhibition, the Appellate Court held that the trial court’s conclusion that the defendant was not exempt from the prohibitions of § 26-40a for operating a zoo was not clearly erroneous. Id., 745-46. Similarly, the Appellate Court held that because the trial court had not credited the defendant’s testimony that she legally possessed other potentially dangerous animals prior to May 23, 1983, the defendant had failed to prove that she was exempt from prosecution. Id., 746.

Second, the defendant claimed that the trial court had improperly convicted her “because the animals [that she possessed] are not specifically listed in the statute or, in the alternative, the statute is unconstitutionally vague as applied in this case.” Id., 747. The Appellate Court first discussed the defendant’s bobcat. The defendant claimed that, although purebred bobcats are clearly prohibited by the statute, her bobcat is not included within the prohibitions of the statute because it is a hybrid bobcat. Id. The Appellate Court noted that the trial court had not decided whether the defendant’s bobcat is a hybrid or a purebred. The Appellate Court stated, however, that because it is obvious that a purebred bobcat is prohibited by the statute, it would assume for the sake of the defendant’s argument that her bobcat is a hybrid. Id., 747 n.6. Having first concluded that it is unclear whether the statute applies to a hybrid bobcat, the court looked to DEP regulations to aid it in determining whether a hybrid bobcat falls within the purview of the statute. Id., 747-48. The court noted that the DEP, in its “regulations created for the enforcement of General Statutes § 26-55, has determined that an animal that results from the crossbreeding of any species listed in General Statutes § 26-40a shall be considered the wild animal of that species. Thus, the DEP considers the crossbreed of a bobcat and a domestic cat to be a bobcat. Regs., Conn. State Agencies § 26-55-2. We see no reason to depart from that interpretation by the DEP. Thus, we conclude that the possession of a hybrid bobcat is prohibited by the statute.” Id., 748.

The Appellate Court further concluded that § 26-40a is not -unconstitutionally vague as applied to this hybrid bobcat. The Appellate Court reasoned that “[b]ecause the statute specifically prohibits bobcats, a person of ordinary intelligence has a reasonable opportunity to know that the possession of a hybrid bobcat is prohibited.” Id., 749. Furthermore, the statute provides a standard for law enforcement. “Because the statute states that bobcats are, as a matter of law, potentially dangerous, law enforcement officers know that they must determine that the animal is a bobcat before a possessor of an animal can be determined to have violated the statute.” Id., 749-50. Therefore, because the statute includes hybrid bobcats and is not unconstitutionally vague as applied to hybrid bobcats, the Appellate Court affirmed the trial court’s judgment of conviction with respect to the bobcat.

In contrast, the Appellate Court concluded that neither the plain language nor the legislative history of § 26-40a clearly indicates that the legislature intended that the statute apply to jungle cats and bengal cats. The court reasoned that because the term “include” can be used as either a word of enlargement or a word of limitation, the plain language of the statute is unclear. In addition, the court stated that the “legislative history fails ... to provide guidance as to whether the statutory prohibition applies to the listed felidae only, to the listed felidae and all other potentially dangerous felidae species, or to the listed felidae and all other potentially dangerous felidae regardless of species.” Id., 750. The court held, therefore, that because the statute fails to inform a person of ordinary intelligence whether the prohibition applies to an animal’s species or to a particular animal’s behavior, possessors of jungle cats and bengal cats are not warned that their possession of these cats violates the statute. Moreover, the statute does not provide guidance to law enforcement officials. Id., 750-51. Thus, the court held that § 26-40a is unconstitutionally vague as applied to the jungle cat and the bengal cat and reversed the convictions pertaining to those two cats. Id., 751.

We granted the state’s petition for certification to decide whether the Appellate Court had improperly determined that § 26-40a is unconstitutionally vague as applied to the jungle cat and the bengal cat. Additionally, we granted the defendant’s petition for certification to address her claim that the Appellate Court had improperly concluded that § 26-40a is not unconstitutionally vague as applied to the hybrid bobcat. Because we conclude that the list of felidae prohibited by the statute is not exclusive and that the statute is not unconstitutionally vague as applied to all three cats, we affirm the judgment of the Appellate Court with respect to the bobcat and reverse the judgment of the Appellate Court with respect to the jungle cat and the bengal cat.

I

In order to decide whether § 26-40a is unconstitutionally vague as applied to the facts of this case, we must first consider whether the list of felidae in § 26-40a is exclusive. In other words, we must determine whether the legislature intended for the felidae listed in the statute to be the sole felidae the possession of which is prohibited or whether the legislature intended the list to serve merely as an example of the types of felidae that are considered potentially dangerous such that the possession of other species of felidae with characteristics similar to those named in the statute is also prohibited. To do this, we must construe the word “including” in the portion of § 26-40a that provides “[f]or the purposes of this section, the following shall be considered as potentially dangerous animals: [t]he felidae, including the lion, leopard, cheetah, jaguar, ocelot, jaguarundi cat, puma, lynx and bobcat . . . .” (Emphasis added.) The defendant argues that the term “including” is a term of limitation and that the list of felidae is an exclusive list of the particular cats that are prohibited by this statute. The state, in contrast, argues that the term “including” is a term of expansion and that the list serves as an example of the type of felidae the possession of which is prohibited. We agree with the state.

“The purpose of statutory construction is to give effect to the intended purpose of the legislature. Dos Santos v. F.D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993); Rose v. Freedom of Information Commission, [221 Conn. 217, 225, 602 A.2d 1019 (1992)]. If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent. Dos Santos v. F.D. Rich Construction Co., supra, 20; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 642, 662 A.2d 1251 (1995). This court has determined, however, that the word “including” is ambiguous. “[T]here is some ambiguity concerning whether the word ‘including’ . . . was intended as a word of limitation ... or one of enlargement .... We have recognized in the past that the words ‘include’ and ‘including’ can be considered as words of limitation as well as enlargement. Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971).” Maciejewski v. West Hartford, 194 Conn. 139, 147, 480 A.2d 519 (1984); accord State v. White, 204 Conn. 410, 422-23, 528 A.2d 811 (1987). More recently, however, in a case in which we were asked to decide whether the term “including” in General Statutes (Rev. to 1989) § 17-206b was a term of limitation or expansion, we concluded that “[t]he legislature’s use of the word ‘including’ rather than the commonly utilized expression, ‘shall include,’ evinces an intention to provide an expansive interpretation of the [statute].” Mahoney v. Lensink, 213 Conn. 548, 569, 569 A.2d 518 (1990). Although Mahoney clarified somewhat the prior ambiguity clouding the word “including,” it did not conclusively resolve the ambiguity because it inteipreted “including” with reference to a particular statute and its purpose.

Where the plain language of a statute is ambiguous, “we must ascertain the intent of the legislature by examining the language of the statute, its legislative history and the purpose the statute is to serve.” State v. White, supra, 204 Conn. 422. Various principles of statutory construction assist us in examining the language of the statute. “[P]rinciples of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). We must avoid a construction that fails to attain a rational and sensible result that bears directly on the result that the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). [Turner v. Turner, supra,] 713. Scrapchansky v. Plainfield, 226 Conn. 446, 453, 627 A.2d 1329 (1993); see also State v. Johnson, [227 Conn. 534, 542, 630 A.2d 1059 (1993)]; Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991). . . . Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 624, 642 A.2d 1186 (1994). It is also a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results.” (Internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 92, 662 A.2d 80 (1995); accord State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988).

The state argues that the interpretation of § 26-40a proposed by the defendant would lead to absurd results. It points out that if the list of felidae were exclusive, the possession of many animals that we all would agree are potentially dangerous would not be prohibited. For example, if we were to read the list as exclusive, the possession of a tiger would not be prohibited because a tiger is not included in the list. We agree that this is an absurd and bizarre result. It would be nonsensical to envision the legislature prohibiting possession of animals such as lions and leopards, but permitting possession of animals such as tigers and panthers that are equally potentially dangerous.

Furthermore, it is a basic tenet of statutory construction that “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous.” (Citation omitted; internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993); accord Office of Consumer Coun sel v. Dept. of Public Utility Control, supra, 234 Conn. 646; LoPresto v. State Employees Retirement Commission, 234 Conn. 424, 448, 662 A.2d 738 (1995); Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 100-101, 653 A.2d 782 (1995); First Bethel Associates v. Bethel, 231 Conn. 731, 741, 651 A.2d 1279 (1995); Peck v. Jacquemin, supra, 196 Conn. 66. The inteipretation contemplated by the defendant would render the word “felidae” superfluous. Had the legislature intended the list to be exclusive, there would have been no need to use this word. By using the term “felidae,” however, and following it with a list of certain types of felidae that share similar characteristics, the legislature apparently intended to prohibit all felidae that are similar to those listed.

Additionally, our conclusion is supported by the doctrine of ejusdem generis. According to this doctrine, “unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.” Scrapchansky v. Plainfield, supra, 226 Conn. 455. The general term in § 26-40a is “felidae,” while the specific terms are “lion, leopard, cheetah, jaguar, ocelot, jaguarundi cat, puma, lynx and bobcat.” Therefore, according to this doctrine, prohibited “felidae” include cats that are of the same general kind or character as lions, leopards, cheetahs, jaguars, ocelots, jaguarundi cats, pumas, lynx and bobcats.

The legislative history of § 26-40a supports our conclusion that the list of prohibited felidae is not exclusive. That history clearly indicates that this statute was enacted to address concerns about the danger being posed to the general public as a result of the growing number of Connecticut residents possessing wild animals. 12 S. Proc., Pt. 3, 1967 Sess., p. 1512; 12 H.R. Proc., Pt. 6, 1967 Sess., p. 2553. Because the purpose of the statute is to protect the public against the unauthorized and uncontrolled keeping of wild animals, it is illogical to prohibit only those felidae specifically listed in the statute when there are other animals that are equally potentially dangerous. Furthermore, there is nothing in the legislative history to suggest that the legislature intended to limit the prohibited animals to those that are listed. Rather, there is an indication that lends support to our conclusion that the list of animals is not exclusive. For example, when the bill was first recommended, Senator James Tansley stated that “[i]n recent years, it has come to the attention of the Board of Fish and Game that people in Connecticut have, let’s say, been trying to domesticate dangerous wild animals, and there are presently no controls over them. So this bill would, for such animals as lions, leopards, [cheetahs], jaguars, bears, wolves, and so forth, require a permit from the local community.” (Emphasis added.) 12 S. Proc., supra, p. 1512. Subsequently, during Senate proceedings to discuss an amendment to the statute that would place enforcement authority in the DEP instead of the local town or city, Senator George Gunther stated that “[m]ost of the chief executives in the town know very little about the different species of animals and incidentally, it’s quite succinct in the type of animal such as lions, leopards, [cheetahs], [jaguars], [ocelots], puma, [lynx], bobcat . . . and that sort of thing . . . .” (Emphasis added.) 26 S. Proc., Pt. 5, 1983 Sess., p. 1512. This legislative history indicates that the legislators did not intend to limit the scope of this statute to those animals that are listed, but rather intended to prohibit those animals that are similar to the “sort of thing” that is listed in the statute.

Finally, we are instructed by Pinto v. Dept. of Environmental Protection, United States District Court, District of Connecticut, Docket No. B-87-523 (March 24, 1988), in which the District Court, in deciding whether a Siberian tiger is prohibited by § 26-40a, held that “the plain meaning, if not definition, of the term ‘including’ is that what follows the term is meant to be representative; the list of animals which follow ‘including’ in Section 26-40 (a) are simply examples of potentially dangerous felidae. Were this not the case and the animals listed were the only animals to which the statute applied, then there would have been no reason for the legislature to include the phrase ‘the felidae.’ In other words [the] plaintiffs’ interpretation results not only in an unorthodox understanding of the term ‘including,’ but also in redundant statutory wording. The better interpretation — one which comports with the plain meaning of the text — is that the list of animals is a nonexclusive list meant to serve as an example of ‘potentially dangerous’ felidae. . . . Indeed, an inteipretation that tigers were not subject to the statutory prohibition would ‘pervert’ the State’s clear purpose of protecting the welfare of its citizens.” (Citations omitted; emphasis in original.)

Having concluded that § 26-40a is not exclusive, we must next decide whether bobcats, bengal cats, and jungle cats are prohibited by the statute. We conclude that their possession is prohibited. Although the trial court never made a definitive finding as to whether the defendant’s bobcat is a purebred or a hybrid, because a purebred is clearly prohibited by the statute, we will analyze the question, as did the Appellate Court, as if the defendant’s bobcat were a hybrid. We agree with the Appellate Court that possession of a hybrid bobcat is prohibited. Section 26-55-2 of the Regulations of Connecticut State Agencies provides that a “quadruped which results from the crossbreeding of any animal with one of the species listed ... in Section 26-40a . . . shall be considered to be a wild . . . quadruped of that species . . . .” In other words, this regulation dictates that the cross of a bobcat and a domestic cat is to be considered a wild bobcat. Therefore, because a hybrid bobcat is classified as a wild bobcat, it is included in and prohibited by the plain language of § 26-40a.

Furthermore, jungle cats and bengal cats are prohibited because they are considered potentially dangerous and they share similar characteristics to those animals listed in the statute. Both the state’s expert witness and the defendant testified at trial that these animals are like those listed in the statute in that they have dangerous propensities. The trial court stated in its oral memorandum of decision that “[i]t would appear from the testimony that I heard, and that I credit, that the general behavior of the three cats were quite similar. [Burk] described them all as potentially dangerous. [Burk’s] personal description is not so important to me, as to her conclusion that they are all about the same size, that they are wild as opposed to domestic, and they all have similar characteristics, and the conduct of each one of them is similar in her caring of them. So, based on all of that the Court concludes that the three animals, the Bobcat because it is specifically mentioned, the Bengal and the Jungle cat because they are of a similar type, disposition, and species, that they are also intended to be included within the general definition of potentially dangerous animals.” Therefore, because bengai and jungle cats are potentially dangerous felidae that are similar in nature and character to the named cats, we conclude that they fall within § 26-40a.

II

The next issue that we must decide is whether § 26-40a is unconstitutionally vague as applied to the facts of this case. “[I]n evaluating [a] defendant’s challenge to the constitutionality of [a] statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. ‘We will indulge in every presumption in favor of the statute’s constitutionality . . . .’ State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989) [on appeal after remand, 235 Conn. 206, 663 A.2d 1026 (1995)]; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705, 553 A.2d 596 (1989).” State v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994).

The vagueness doctrine essentially requires that statutes provide fair warning or notice of the conduct that is prohibited and establish minimum guidelines to govern law enforcement. State v. Indrisano, supra, 228 Conn. 802. “Under the requirements of due process of law mandated by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987); State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980); see Buckley v. Valeo, 424 U.S. 1, 77, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984) [overruled in part on other grounds, Paulsen v. Manson, 203 Conn. 484, 525 A.2d 1315 (1987)]. [A] statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State v. Eason, supra [46]; State v. Pickering, supra, 60. State v. Linares, 232 Conn. 345, 354, 655 A.2d 737 (1995); State v. Williams, 205 Conn. 456, 469-70, 534 A.2d 230 (1987).” (Internal quotation marks omitted.) Benjamin v. Bailey, 234 Conn. 455, 483, 662 A.2d 1226 (1995). The proscription of the activity, however, need not be definite as to all aspects of its scope. A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions. States. White, supra, 204 Conn. 415 (“It is not necessary . . . that a statute list the precise conduct prohibited or required. ... It is recognized that the law may be general in nature; the constitution requires no more than a reasonableness of certainty.” [Citation omitted.]); State v. Eason, supra, 47. Furthermore, the statute at issue need only give fair warning to those who are potentially subject to it. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 501 n.18, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982).

In addition, “ ‘if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.’ Grayned v. Rockford, [408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)]. Therefore, ‘a legislature [must] establish minimal guidelines to govern law enforcement.’ . . . Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); see also Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 591, 590 A.2d 447 (1991).” State v. Indrisano, supra, 228 Conn. 803.

In determining whether a statute is unconstitutionally vague, “we take into account any prior interpretations that this court, our Appellate Court and the Appellate Session of the Superior Court have placed on the statute.” State v. Indrisano, supra, 228 Conn. 805. In addition, we can use as a guide judicial opinions that, while not binding on this court, refer to the statute in question or to a statute that uses similar language. State v. Proto, supra, 203 Conn. 699-700. Furthermore, we can refer to the common law, legal dictionaries, treatises and the commonly accepted meanings of the terms in other statutes. Id., 699; State v. Pickering, supra, 180 Conn. 62-63.

The standard that we apply in determining whether a statute is unconstitutionally vague is influenced by the nature of the right being affected and whether the statute is criminal or civil in nature. Statutes that inhibit constitutionally protected rights and criminal statutes are subject to a more stringent vagueness test. State v. Linares, supra, 232 Conn. 355; State v. Indrisano, supra, 228 Conn. 803-804. On the other hand, civil statutes receive a less stringent vagueness test. State v. Linares, supra, 355; State v. Indrisano, supra, 803-804.

In this case, the defendant challenges the constitutionality of § 26-40a as it applies to the particular facts of this case. She argues that, because the totality of facts of this case did not sufficiently notify or warn her that the possession of a hybrid bobcat, a jungle cat or a bengal cat is prohibited, § 26-40a is void for vagueness. With all the aforementioned criteria in mind, we must determine whether the defendant had sufficient notice and warning that her possession of the cats was prohibited under § 26-40a.

The defendant testified at trial that she has specialized knowledge of felidae, including their behavioral characteristics and ancestry. She testified that she has owned various cats, including other jungle cats, for over ten years, that she has contact with breeders, that she buys and sells cats, that she reads books and magazines on exotic cats and belongs to a cat club, that she lectures about exotic cats, and that she trained a veterinarian to handle exotic cats properly. Furthermore, she testified that she even telephoned the DEP to inquire whether she could keep her three cats.

Mindful of this defendant’s heightened knowledge of exotic cats and our conclusion that the list of prohibited cats in § 26-40a is not exclusive, we next examine whether § 26-40a warned the defendant that possession at her home of her three cats was prohibited by the statute. We conclude that she was adequately warned.

We agree with the Appellate Court that § 26-40a sufficiently warned and notified the defendant that possession of a hybrid bobcat was prohibited. Section 26-55-2 classifies a hybrid bobcat as a wild bobcat and § 26-40a clearly prohibits bobcats. In addition, the defendant has heightened knowledge of bobcats that stems from her experience with handling them, her contact with breeders and her access to literature on bobcats. The combination of these factors provided adequate warning to this defendant that possession of a hybrid bobcat violates this statute. Furthermore, the statute provides a standard for law enforcement because it mandates that an officer determine that an animal is a bobcat before its possessor can. be accused of violating the statute. State v. Linares, supra, 232 Conn. 362 (statute provides objective standard so that law enforcement officers know what to consider). Therefore, on the facts of this case the statute is not unconstitutionally vague as applied to bobcats.

We disagree with the Appellate Court that the statute is unconstitutionally vague as applied to bengal and jungle cats. Both the state’s expert witness; see footnote 20; and the trial court’s findings indicate that bengal and jungle cats are potentially dangerous in that they “are similar in type, disposition, and species” to those felidae listed in the nonexclusive statute. In addition, because the defendant has owned various cats in the past, including jungle cats, has worked with breeders to buy and sell cats, and reads numerous publications pertaining to these cats, she must be deemed to be aware of the characteristics of these animals. Therefore, we conclude that this defendant was adequately warned and notified that either her cats are prohibited or that, at a minimum, she should have inquired further to determine if they are prohibited. The defendant did not need to guess at the meaning of the statute. She simply had to compare the cats that she owned to those listed in the statute in order to conclude that they are of like character and are, therefore, similarly potentially dangerous.

Furthermore, the statute provides adequate guidance to law enforcement officials. Id., 362. The statute creates standards that will avoid arbitrary and discriminatory enforcement. The statute applies only to potentially dangerous felidae and provides a list of examples of such potentially dangerous felidae to which law enforcement officials can compare other felidae, such as bengal and jungle cats, to determine if a cat that is not named in the statute is similar to one that is named. Therefore, the statute is not unconstitutionally vague as applied to bengal and jungle cats.

The judgment of the Appellate Court affirming the defendant’s conviction of possession of a potentially dangerous animal under § 26-40a with respect to the bobcat is affirmed; the judgment of the Appellate Court reversing the defendant’s conviction of possession of a potentially dangerous animal under § 26-40a with respect to the bengal and jungle cats is reversed, and the case is remanded to that corut with direction to affirm the judgment of the trial court pertaining to those two cats.

In this opinion the other justices concurred.

       General Statutes § 26-40a provides: “Possession of potentially dangerous animals. For the purposes of this section, the following shall be considered as potentially dangerous animals: The felidae, including the lion, leopard, cheetah, jaguar, ocelot, jaguarundi cat, puma, lynx and bobcat; the canidae, including the wolf and coyote; and the ursidae, including the black bear, grizzly bear and brown bear. No person shall possess a potentially dangerous animal. Any such animal illegally possessed may be ordered seized and may be disposed of as determined by the commissioner of environmental protection. Any person who violates any provision of this section shall be fined not more than one hundred dollars for each offense. The provisions of this section shall not apply to municipal parks, zoos and nature centers, or museums, laboratories and research facilities maintained by scientific or educational institutions or to persons possessing animals legally on or before May 23, 1983.” (Emphasis added.)

       “Burk testified that felidae is the family of the felines that includes all members of the cat family.” State v. DeFrancesco, 34 Conn. App. 741, 744 n.2, 643 A.2d 271 (1994).

       “Burk testified that, in her opinion, this bobcat is a full-blooded bobcat. The defendant contends that the bobcat is a hybrid, a cross between a bobcat and a domestic cat.” State v. DeFrancesco, 34 Conn. App. 741, 744 n.3, 643 A.2d 271 (1994).

       “The defendant introduced evidence rebutting the state’s evidence of the potentially dangerous tendencies of the animals.” State v. DeFrancesco, 34 Conn. App. 741, 744 n.4, 643 A.2d 271 (1994).

       See footnote 1.

       The defendant argued that “the definition of ‘zoo’ should be ‘any park, building, cage, enclosure, or other structure or premise in which a live animal or animals are kept for public exhibition or viewing, regardless of compensation.’ See 9 C.F.R. § 1.1 (1993).” State v. DeFrancesco, supra, 34 Conn. App. 745.

       “The dictionary definition of ‘zoo’ is a ‘collection of living animals usually for display.’ Webster’s Third New International Dictionary.” State v. DeFrancesco, supra, 34 Conn. App. 745.

       As we have stated many times, a reviewing court examines the findings of fact made by a trial court solely to determine whether the trial court’s determination was clearly erroneous. State v. Zarick, 227 Conn. 207, 228, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Pierog, 33 Conn. App. 107, 114-15, 634 A.2d 301 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994).

       “When we interpret statutes ... we accord great deference to the construction given to a statute by the agency charged with its enforcement. Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 602 A.2d 1005 (1993); Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).” State v. DeFrancesco, supra, 34 Conn. App. 748.

       General Statutes § 26-55 provides: “Permit for importing, possessing or liberating fish, wild birds, wild quadrupeds, reptiles and amphibians. No person shall import or introduce into the state, or possess or liberate therein, any live fish, wild bird, wild quadruped, reptile or amphibian unless such person has obtained a permit therefor from the commissioner. Such permit may be issued at the discretion of the commissioner under such regulations as he may prescribe. The commissioner may by regulation prescribe the numbers of live fish, wild birds, wild quadrupeds, reptiles and amphibians of certain species which may be imported, possessed, introduced into the state or liberated therein. The commissioner may by regulation exempt certain species or groups of live fish from the permit requirements. He may by regulation determine which species of wild birds, wild quadrupeds, reptiles and amphibians must meet permit requirements. He may totally prohibit the importation, possession, introduction into the state or liberation therein of certain species which he has determined may be a potential threat to humans, agricultural crops or established species of plants, fish, birds, quadrupeds, reptiles or amphibians. The commissioner may by regulation exempt from permit requirements organizations or institutions such as zoos, research laboratories, colleges or universities, public nonprofit aquaria or nature centers where live fish, wild birds, wild quadrupeds, reptiles and amphibians are held in strict confinement Any such fish, bird, quadruped, reptile or amphibian illegally imported into the state or illegally possessed therein shall be seized by any representative of the department of environmental protection and shall be disposed of as determined by the commissioner. Any person, except as provided in section 26-55a, who violates any provision of this section or any regulation issued by the commissioner as herein provided shall be guilty of an infraction. Importation, liberation or possession of each fish, wild bird, wild quadruped, reptile or amphibian in violation of this section or such regulation shall be a separate and distinct offense and, in the case of a continuing violation each day of continuance thereof shall be deemed to be a separate and distinct offense.”

       Section 26-55-2 of the Regulations of Connecticut State Agencies provides in relevant part: “Importation of birds and quadrupeds.
      “(a) No person shall import or introduce into the state or possess or liberate therein without a permit, any live wild birds or any of the following wild quadrupeds: those on the threatened or endangered species list; and those in the family Castoridae, beavers; in the family Canidae, foxes; in the family Mustelidae, fisher, otter, mink, martens; in the family Cervidae, sika and white tailed deer; in the family Capromydae, nutria; or any wild hare or rabbit in the family Leporidae except as provided in Section 26-56 of the General Statutes as amended. For the purposes of this Section, a bird or quadruped which results from, the crossbreeding of any animal with one of the species listed above in this subsection or in Section 26-40a of the General Statutes as amended shall be considered to be a wild bird or quadruped of that species, and the egg of any wild bird shall be considered a wild bird of that species.” (Emphasis added.)

       We granted certification on July 21, 1994, limited to the following issue: “Did the Appellate Court properly reverse the defendant’s convictions for possession of a jungle cat and a bengal cat on the ground that General Statutes § 2640a was unconstitutionally vague as applied to the facts of this case?” State v. DeFrancesco, 230 Conn. 916, 645 A.2d 1019 (1994).

       We granted certification on December 12,1994, limited to the following issue: “Did the Appellate Court properly affirm the defendant’s conviction for possession of a hybrid bobcat on the ground that General Statutes § 26-40a was not unconstitutionally vague as applied to the facts of this case?” State v. DeFrancesco, 231 Conn. 939, 653 A.2d 823 (1994).

       We note that the Appellate Court recognized a third plausible interpretation of this statute, namely, that the statute prohibits possession of those felidae that are listed and also prohibits possession of those individual felidae that are determined by a trial court to be potentially dangerous. Because, however, both parties agree that the statute is species-based and not individual cat-based, we need not address this issue.

       See footnote 1.

       General Statutes (Rev. to 1989) § 17-206b provides: “No patient hospitalized or treated in any public or private facility for the treatment of the mentally disordered shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and contract, except in accordance with due process of law, and unless he has been declared incompetent pursuant to chapter 779. Any finding of incompetency shall specifically state which civil or personal rights the patient is incompetent to exercise.” Section 17-206b has been transferred to General Statutes § 17a-541.

       See footnote 11. Although this regulation specifically applies to General Statutes § 26-55, that section and § 26-40a are part of a common regulatory scheme to control the possession of wild animals. Section 26-55 applies generally in that it requires a permit in order to possess a wild quadruped. See footnote 10. Section 26-40a limits this general provision by prohibiting the possession of a subcategory of wild animals, namely potentially dangerous animals. We note that § 26-55-2 (o) of the Regulations of Connecticut State Agencies provides: “No potentially dangerous animal as defined in Section 26-40a of the Connecticut General Statutes as amended shall be imported or introduced into this state by any person. This subsection shall not apply to municipal parks, zoos and nature centers, or museums, laboratories and research facilities maintained by scientific or educational institutions.”

       At oral argument in this court, the defendant claimed that the regulation is irrational. Because she failed to brief this issue, however, we do not consider it State v. Cavallo, 200 Conn. 664, 666 n.3, 513 A.2d 646 (1986); Bieluch v. Bieluch, 199 Conn. 550, 555 n.5, 509 A.2d 8 (1986); State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985).

       The state and the defendant agreed at trial that a bengal cat is inherently a hybrid of a leopard cat and a domestic cat, although the trial court did not explicitly find that fact. Furthermore, we note thatleopard cat is synonymous with ocelot; Webster’s Third New International Dictionary; which is specifically named in the statute. Assuming that the bengal cat is a hybrid, therefore, we apply the same reasoning as with bobcats and conclude that possession of a bengal cat is prohibited by § 26-40a because it is essentially a cross between an ocelot and a domestic cat.

       The state’s expert witness, Elaine Burk, testified as to the potentially dangerous nature of the bobcat, jungle cat and bengal cat. She testified that “[a] Bobcat is an animal that ranges on the average, from 20 up to as large as 45 pounds. It’s an animal that’s been documented in Massachusetts during winter time to take down deer. I have worked with Bobcats for a number of years. I have not come away without a few scars of my own. Concerning Jungle cats, I’ve worked with a Jungle cat before, I’ve worked at Tufts University with a Jungle cat, and by the nature of it being a wild animal, it does indeed have the potential of being dangerous. A Jungle cat on the average ranges between 15 and 30 pounds. A Bengal is a hybrid. It’s a cross between a Leopard cat, an Asian Leopard cat, Felis Bengalunsis (phonetic spelling) and a domestic cat. I in fact owned a 1st and 2nd generation, or I have owned a 1st and 2nd generation Bengals. I would not allow anyone else to pet them, let alone be around children because I considered them to be too dangerous.”

         The parties agree that § 26-40a does not interfere with constitutionally protected rights. See Nicchia v. New York, 254 U.S. 228, 230-31, 41 S. Ct. 103, 65 L. Ed. 235 (1920); Sentell v. New Orleans & Carrollton R. Co., 166 U.S. 698, 701, 704, 17 S. Ct. 693, 41 L. Ed. 1169 (1897) (no constitutional right to own cat or dog). In addition, § 26-40a is clearly a criminal statute.

       In addition, the constitutionality of a statute can be challenged for facial vagueness. In such a situation, the challenger must prove that the statute is vague in all of its possible applications. “A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. . . . Such a provision simply has no core. (Citations omitted; emphasis in original.) Smith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); see also Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974); State v. Ball, 226 Conn. 265, 271, 627 A.2d 892 (1993); State v. Pickering, [supra, 180 Conn. 65]. Professor Laurence Tribe calls such a statute ‘perfectly vague.’ L. Tribe, [American Constitutional Law (2d Ed. 1988)] § 12-32, p. 1036. State v. Indrisano, [supra, 228 Conn. 804].” (Internal quotation marks omitted.) Benjamin v. Bailey, supra, 234 Conn. 484. Any hypothetical application that is not vague would save the statute. Because neither party has challenged the constitutionality of this statute on its face, we need only examine whether § 26-40a is vague as applied to the facts of this case. State v. Cavallo, 200 Conn. 664, 666 n.3, 513 A.2d 646 (1986);
        Bieluch v. Bieluch, 199 Conn. 550, 555 n.5, 509 A.2d 8 (1986); State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985).

       The defendant had sufficient notice and warning that § 26-40a is not exclusive by the combination of (a) the holding by Judge Cabranes in Pinto v. Dept. of Environmental Protection, supra, Docket No. B-87-523 (D. Conn. March 24, 1988), that § 26-40a includes other potentially dangerous animals that are not specifically listed in § 26-40a, (b) the conspicuous absence of many potentially dangerous animals from the statute, such as tigers, and (c) the defendant’s specialized knowledge of the character of these animals. See State v. Proto, supra, 203 Conn. 699-700; State v. Pickering, supra, 180 Conn. 62-63.

       Similarly, if we assume that a bengal cat is a hybrid of an ocelot and a domestic cat; see footnote 19; the defendant had sufficient notice that a bengal is prohibited because ocelot is named in § 26-40a, § 26-55-2 of the Regulations of Connecticut State Agencies classifies a hybrid as a wild animal, and § 26-40a is not exclusive. See footnote 23.
      We note that the defendant, whose burden it is to prove the statute unconstitutional beyond a reasonable doubt; Moore v. Ganim, 233 Conn. 557, 571-72, 660 A.2d 742 (1995); did not introduce evidence as to what generation hybrid her bobcat or bengal cat is. Consequently, we do not decide whether an owner of, for example, a tenth generation hybrid would be sufficiently warned that possession of such an animal is potentially illegal.