author: Arthur H. Healey, J.

text:
    Donald E. Demar et al. v. The Open Space and Conservation Commission of the Town of Rocky Hill
    (13578)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued February 8
    decision released June 6, 1989

      George C. Hastings, with whom was Peter A. Gutermann, for the appellants (plaintiffs).

      Gordon T. Allen, for the appellee (defendant).
   Arthur H. Healey, J.

On or about April 29,1987, the plaintiffs, Donald Demar and Dwelling Development Corporation, applied to the defendant, the open space and conservation commission of the town of Rocky Hill (the commission), for a permit to reconstruct a drainage outlet affecting a subdivision owned by Demar. The commission is a duly authorized and constituted board or agency of Rocky Hill and acts as that town’s inland wetlands and watercourse agency pursuant to General Statutes §§ 22a-36 through 22a-45 and Rocky Hill ordinance No. 36-72, adopted in 1972.

The proposed subdivision was to be located on a 19.92 acre parcel that is bounded by Old Main Street on the west and the Penn Central rail line on the east. The site is bordered by residential housing along Old Main Street and by undeveloped land, a former landfill to the west of the railroad tracks. The undeveloped land contains Goff Brook, into which the storm water runoff from the parcel is dispersed, and drains into the Connecticut River flood plain, an area known as the Great Meadows. The permit applied for by the plaintiffs was for the construction of two drainage pipes beneath the railroad tracks to carry the discharge of storm water runoff into Goff Brook. A public hearing on this application was held on June 24, 1987. On September 29, 1987, the commission denied the application.

General Statutes § 22a-43 (a) provides that an appeal may be taken from a decision of a local inland wetlands agency by “[t]he commissioner [of environmental protection] or any person aggrieved . . . within fifteen days after the publication of such . . . decision . . . to the superior court . . . . ” Prior to July 1, 1987, this statute also provided that “[n]otice of such appeal shall be served upon the inland wetlands agency. ...” Effective July 1,1987, this statute was amended to add that notice of such appeal also be served on the commissioner of environmental protection. Public Acts 1987, No. 87-338, § 8. This amendment also added the language: “The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. . . . ” Id.

On October 1, 1987, the plaintiffs filed an appeal to the Superior Court from the denial of their application. The citation and appeal were served only upon the commission; nothing was served upon the commissioner of environmental protection. On October 24, 1987, pursuant to Practice Book § 175, the plaintiffs amended their complaint by alleging, inter alia, that the commission had acted arbitrarily, illegally and in abuse of its discretion in its denial of their application. On May 5, 1988, the plaintiffs filed their brief in support of their appeal. On June 15,1988, the commission filed a motion to dismiss alleging that the court lacked subject matter jurisdiction because the plaintiffs had not served the commissioner of environmental protection with notice of the wetlands appeal as required by General Statutes § 22a-43 (a). On June 24, 1988, and June 29, 1988, the plaintiffs “served” the commissioner with notice of the appeal. After the parties had filed briefs, the trial court held a hearing on the commission’s motion to dismiss and granted that motion on August 23, 1988. The trial court, in its memorandum of decision, noted that the commission, in seeking dismissal of the appeal for lack of subject matter jurisdiction, argued that the plaintiffs “failed to serve the Commissioner of the Department of Environmental Protection with notice of appeal as required by Conn. Gen. Stat. § 22a-43.” It pointed out that § 22a-43, which specifies the procedure for appealing the decision of an inland wetlands agency, had been amended by Public Acts 1987, No. 87-338. It indicated that § 8 (a) of the 1987 amendment stated that “[njotice of such appeal shall be served on the inland wetlands agency and the Commissioner [of Environmental Protection].” (Emphasis added.) The trial court, reasoning that “ ‘a statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created’ Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); determined that the plaintiffs’ failure “to cite the commissioner as required by section 22a-43” deprived it of subject matter jurisdiction. Accordingly, it granted the commission’s motion to dismiss. We do not agree.

On appeal, the plaintiffs claim that the belated service of notice upon the commissioner of environmental protection is merely a “circumstantial defect which does not make the appeal invalid.” In doing so, they argue that: (1) the trial court erred in ruling that the delay in providing notice to the commissioner was a jurisdictional defect; (2) the trial court has not been deprived of its jurisdiction because they cured any defect in service before either the commission or the commissioner suffered any prejudice; (3) the belated service of notice upon the commissioner does not deprive the trial court of subject matter jurisdiction since the commissioner is not a necessary and indispensable party; (4) this court’s holdings in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) and 206 Conn. 374, 538 A.2d 202 (1988), and its progeny, do not require dismissal; and (5) the trial court’s reliance on Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, for the proposition that any defect in the bringing of an administrative appeal deprives the court of its subject matter jurisdiction is misplaced.

On the other hand, the commission claims that the failure of the plaintiffs to serve timely notice of the appeal upon the commissioner deprived the trial court of subject matter jurisdiction and mandated dismissal of the appeal. In doing so, the commission argues that: (1) the language of General Statutes § 22a-43 (a) is clear and unambiguous; (2) the right to appeal a decision of an administrative agency depends upon strict adherence to statutory procedures; (3) a jurisdictional defect cannot be cured by amendment, particularly the plaintiffs’ attempt to do so over eight months after the appeal was taken; and (4) jurisdictional defects cannot be avoided on equitable grounds such as a lack of prejudice.

Initially, we consider whether our disposition of this appeal is mandated by our recent Simko line of decisions. See, e.g., Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I); Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II); Andrew Ansaldi Co.v. Planning & Zoning Commission, 207 Conn. 67, 540 A.2d 59 (1988); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988). There is an ambiance on this appeal that Simko and its progeny do indeed harbinger dismissal. We do not agree that Simko and its progeny necessarily require dismissal. On this appeal, we are dealing with a different statute from those involved in the Simko line of cases. Those cases concerned appeals from the decisions of local zoning boards of appeals and planning commissions and involved our construction of General Statutes §§ 8-8 (b) and 8-28 (a). At that time, § 8-8 (b) provided in relevant part: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. . . . ” In Simko I, the citation and other appeal papers failed to mention the clerk of the municipality (Fairfield). Despite this deficiency, the deputy sheriff served not only the board and the successful applicant for the variance involved, but he also personally served the Fairfield town clerk. Simko I, supra, 415. The trial court granted the board’s motion to dismiss the appeal “pursuant to General Statutes § 8-8 (d) for the plaintiffs’ failure, inter alia, to have named the clerk of the municipality in the citation as required by § 8-8 (b).” Id., 416. We affirmed.

“In Simko I we held that, under General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3, the clerk of the municipality, in addition to the chairman or clerk of the zoning board, is a statutorily mandated, necessary party who must be properly served in a zoning appeal brought pursuant to § 8-8. Simko I, supra, 418-19. We went on to hold that the failure to name the clerk of the municipality in the citation was a jurisdictional defect that rendered the administrative appeal subject to dismissal because a proper citation is essential to the validity of the appeal. Id., 420-21.” Simko II, supra, 376. Shortly after Simko II, the General Assembly effectively overruled Simko I and II by Public Acts 1988, No. 88-79, § 1, effective April 20, 1988. Public Acts 1988, No. 88-79, § 1, amended § 8-8 (b) to provide as follows: “(b) Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality, PROVIDED SERVICE UPON THE CLERK OF THE MUNICIPALITY SHALL BE FOR THE PURPOSE OF PROVIDING ADDITIONAL NOTICE OF SUCH APPEAL TO SAID BOARD AND SHALL NOT THEREBY MAKE SUCH CLERK A NECESSARY PARTY TO SUCH appeal. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”* * (Capital letters indicate language of amendment effected by Public Acts 1988, No. 88-79, § 1.) Our holding in Schwartz v. Planning & Zoning Commission, supra, handed down after the effective date of that public act, was such that we did not need to address its applicability in that case. Schwartz v. Planning & Zoning Commission, supra, 151 n.5.

The statute involved in the present appeal, i.e., § 22a-43, not only appears in another chapter of the General Statutes, but the portion of § 22a-43 involved contains significantly different language. Although we explicate it later, we point out here that the specific language we refer to in § 22a-43 (a) is “[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner [of environmental protection]. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to court. . . .’’Further, while certain legal principles stated in Simko I and Simko II undoubtedly remain fully valid, the action of the General Assembly in enacting Public Acts 1988, No. 88-79 effectively annuls the holding of Simko so that, were it otherwise, much weight would need to be given to any claim that Simko and its progeny directed our course in this appeal.

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11.” Craig v. Bronson, 202 Conn. 93,101, 520 A.2d 155 (1987). “ ‘ “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which, the proceedings in question belong.” ’ ” Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 111-12, 438 A.2d 834 (1981); E.M. Loew’s Enterprises, Inc. v. International Alliance of Theatrical State Employees, 127 Conn. 415, 420, 17 A.2d 525 (1941); Case v. Bush, 93 Conn. 550, 552, 106 A. 822 (1919); People v. Western Tire Auto Stores, Inc., 32 Ill. 2d 527, 530, 207 N.E.2d 474 (1965). “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801,100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Meinket v. Levinson, 193 Conn. 110,115, 474 A.2d 454 (1984); Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., supra, 112.

We have said that “[although the term is sometimes loosely used, ‘jurisdiction’ in proper usage is the power in a court to hear and determine the cause of action presented to it. . . . ‘[T]he determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.’ ” LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969); Monroe v. Monroe, supra; see Lacks v. Lacks, 41 N.Y.2d 71, 359 N.E.2d 384, 390 N.Y.S. 2d 875 (1976). Subject matter jurisdiction cannot be waived or conferred by consent. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). The New York Court of Appeals, in discussing subject matter jurisdiction, said cryptically: “In other words, ‘subject matter’ does not mean ‘this case’ but ‘this kind of case.’ ” Matter of Rougeron, 17 N.Y.2d 264, 271, 217 N.E.2d 639, 270 N.Y.S.2d 578, cert. denied, 385 U.S. 899, 87 S. Ct. 204,17 L. Ed. 2d 131 (1966); see 20 Am. Jur. 2d, Courts § 105.

Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 421 n.3, 426 A.2d 1324 (1980); see Monroe v. Monroe, supra, 177; Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973). The source of a court’s jurisdiction is “the constitutional and statutory provisions by which it is created.” C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). The Superior Court of this state “shall be the sole court of original jurisdiction for all causes of action . . . . ” General Statutes § 51-164s. The competency of persons such as the plaintiffs to appeal the denial of their application by the commission to the Superior Court is conferred by our statutes. See, e.g., General Statutes § 22a-43. The enactment by the General Assembly of the legislation involved created this cause of action and the jurisdiction to entertain it vested in the Superior Court and that court had competence to entertain the action.

It is necessary to examine § 22a-43 (a) to determine whether the trial court truly lacked subject matter jurisdiction and properly dismissed the appeal. “The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation.” Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1079 (1977); In re Juvenile Appeal (85-BC), 195 Conn. 344, 353, 488 A.2d 790 (1985). “It is basic that a statute is to be construed as a whole.” Aaron v. Conservation Commission, 183 Conn. 532, 548, 441 A.2d 30 (1981). When the statute is clear and unambiguous, there is no room for construction; id.; and, in that event, we will not adopt a construction not clearly-stated by the legislature in the statute. State v. Burns, 194 Conn. 469, 472, 481 A.2d 1077 (1984). Common sense must be used in the construction of a statute. Cilley v. Lamphere, 206 Conn. 6,12, 535 A.2d 1305 (1988); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). “Legislative words are not inert, and derive vitality from the obvious purposes at which they are aimed.” Griffiths v. Commissioner of Internal Revenue, 308 U.S. 355, 358, 60 S. Ct. 277, 84 L. Ed. 319 (1939).

General Statutes § 22a-43 (a) provides, as does § 8-8 (a), that an “appeal shall be made returnable to [the Superior Court] in the same manner as that prescribed for civil actions brought to [that] court.” That statute also provides that “[n]otice of such appeal shall be served upon the inland wetlands agency and the commissioner.” If “and the commissioner” were the only language added to § 22a-43 by Public Acts 1987, No. 87-338, § 8, then the claim of the defendant commission that the commissioner is a necessary party to the appeal would be significant in construing this statute. The 1987 public act, however, also added the sentence immediately after the words “and the commissioner” that provides: “The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court.” It is quite true that this statute provides that appellants must “serve” notice of such appeal “upon the inland wetlands agency and the commissioner.” (Emphasis added.) Unlike the defendant inland wetlands commission of Rocky Hill, however, the commissioner was not a party, let alone a necessary party, when the appeal was taken and the defendant commission was served. Necessary parties have been described as “ ‘[p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that [matter] which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . ’ ” Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983). The statute, as plainly written, does not provide that the commissioner “ought” to be joined but leaves that decision to the commissioner. At the time that the appeal was instituted the commissioner was not even a party to the appeal, nor did the legislature ever intend that as it left the choice whether to become a party entirely up to the commissioner for a period after the appeal had been returned to court. This is significant when we realize that “the determination of who is a necessary or a proper party in a proceeding to review the actions of an administrative agency is primarily governed by statute.” Simko I, supra, 417. The language of § 22a-43 (a) that permits and leaves the choice up to the commissioner to “appear as a party . . . within thirty days from the date [the] appeal is returned to the court” clearly demonstrates that. Therefore, we hardly have a situation where, as we said in affirming Simko I, “the [commissioner of environmental protection] is a statutorily mandated necessary party to the proper institution of an appeal and must properly be served with true and attested copies of the appeal.” Simko II, supra, 382; see also Schwartz v. Planning & Zoning Commission, supra, 151. The commissioner not only is not a necessary party, but the statute does not even make him a party. It is clear, however, that the legislature by this language intended that the commissioner be given notice that an appeal had been taken.

This, however, does not end our inquiry because the purpose of the 1987 amendment was, inter alia, to give the commissioner notice that an appeal had been taken and to permit the commissioner alone to make the decision to appear or not to appear as a party. The commissioner, however, was not given notice in accordance with § 22a-43 (a) in the first instance. Does this truly deprive the trial court of subject matter jurisdiction? In this case, we think not. Arguing that § 22a-48 (a), insofar as the commissioner is concerned, requires only that notice be given to the commissioner, the plaintiffs maintain that the belated service of notice upon the commissioner constitutes only a circumstantial defect and not a defect that flaws subject matter jurisdiction.

We have held that certain defects were circumstantial and did not result in the deprivation of subject matter jurisdiction. See Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 479, 423 A.2d 121 (1979). In a zoning appeal, we said that, while the plaintiffs failure to provide a proper bond or recognizance was a “serious irregularity,” it did not destroy the jurisdiction of the court over the subject matter. Sheehan v. Zoning Commission, 173 Conn. 408, 411, 378 A.2d 519 (1977). In D’Andrea v. Rende, 123 Conn. 377, 195 A. 741 (1937), a case that did not involve an administrative appeal but rather the dissolution of an attachment under the statute, we had to determine whether the defect in the prescribed statutory notice, as well as the judge’s failure to take all the steps provided in the statute, deprived the court of subject matter jurisdiction. In D’Andrea, we opined that if the lack of notice was a “substantial defect,” subject matter jurisdiction would be lacking, whereas if it was a “circumstantial defect, a mere irregularity,” such jurisdiction existed and the defect could be waived. D ’Andrea v. Rende, supra, 380.

The problem presented here is not, however, to be solved only by facile resort to such terms as “a circumstantial defect,” “a mere irregularity” or “a serious irregularity,” the use of which arose under other circumstances. While “words acquire scope and function from the history of events which they summarize”; Phelps Dodge Corporation v. National Labor Relations Board, 313 U.S. 177,186, 61 S. Ct. 845, 85 L. Ed. 1271 (1941) (Frankfurter, J.); we believe that in evaluating the defect complained of “[i]n the case at bar, also the logic of [such] words should yield to the logic of realities.” DiSanto v. Pennsylvania, 273 U.S. 34, 43, 47 S. Ct. 267, 71 L. Ed. 524 (1927) (Brandeis, J., dissenting). In concluding in D ’Andrea that the defect was circumstantial, we said that “[i]n determining whether [the] defect was fatal, the purpose of the statutory provision may be considered”; D’Andrea v. Rende, supra; and we then analyzed the statute. See also State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). We do likewise here, and, in applying this reasoning to § 22a-43 (a), we conclude, in the circumstances of this case, that the defect is such that it did not deprive the trial court of subject matter jurisdiction. To do otherwise would thwart the statutory purpose; see Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982); and reach a result that does not accord with common sense under these facts. See, e.g., Cilley v. Lamphere, supra. There is no question that the legislature intended to change the existing law by enacting Public Acts 1987, No. 87- 338, § 8, when it provided for service to be made on the commissioner so that, upon notice to the commissioner, she could decide whether she wanted to become a party to the pending appeal. That the legislature, in amending § 22a-43 (a) in 1987, left the choice of party status to the commissioner is evident. Moreover, in extending this option to the commissioner, it did so after the appeal was returned to and pending in the Superior Court as a viable appeal. See Algonquin Gas Transmission Co. v. Becker, 25 Conn. Sup. 448, 450, 206 A.2d 846 (1952) (King, J.). But “[ejvery portion of a statute is presumed to have a separate and independent meaning”; State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981); and the clear intent of the language of Public Acts 1987, No. 87-338, § 8, giving the commissioner the option, once notified, to become a party within thirty days after the appeal is returned to court, demonstrates her “status.” Even had the commissioner been timely served, she was not thereby even made a party, so not even a citation was necessary in serving the commissioner. Cf. Simko I, supra, 416, 420-21; Simko II, supra, 376, 382-83; see Schwartz v. Planning & Zoning Commission, supra, 150-51.

We do not have a case here in which the commissioner did not receive notice but one where she was aware that the motion to dismiss was pending. Nor do we have a case in which the belated service of notice on the commissioner “cured” a defect in subject matter jurisdiction because such jurisdiction existed in this case despite that belated service. Moreover, it cannot be seriously argued that the trial court could not have entered a valid judgment for or against the plaintiffs or the commission even without the commissioner as a party defendant. Nor is there any evidence or indication that the failure to have served the commissioner timely might result in unnecessary litigation later. See Gill v. Shimelman, 180 Conn. 568, 571, 430 A.2d 1292 (1980); F. James & G. Hazard, Civil Procedure (2d Ed. 1977) §§ 9.14-9.20, pp. 427-43. The United States Supreme Court “long ago established the principle that the power of a court to afford a remedy must be coextensive with its jurisdiction over the subject matter.” Hamilton v. Nakai, 453 F.2d 152,156 (9th Cir. 1972), referring to Riggs v. Johnson County, 73 (6 Wall.) U.S. 166, 187, 18 L. Ed. 768 (1868). This principle is satisfied here. The trial court could have reached and decided the merits of this appeal and have afforded a remedy because it did have the subject matter jurisdiction to do so.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion to dismiss.

In this opinion the other justices concurred.

       Public Acts 1987, No. 87-338, § 8, amended General Statutes § 22a-43 (a) in full as follows: “Sec.. 8. Section 22a-43 of the general statutes is repealed and the following is substituted in lieu thereof:
      “(a) [Any] THE commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning OR OCCUPYING LAND WHICH ABUTS ANY PORTION OF LAND OR IS WITHIN A RADIUS OP NINETY FEET OF THE WETLAND OR WATERCOURSE INVOLVED IN ANY REGULATION, ORDER, DECISION OR ACTION MADE PURSUANT TO SAID sections may, within fifteen days after publication of such regulation, order, decision or action appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district, to said court in any such judicial district, except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. Notice of such appeal shall be served upon the inland wetlands agency and the COMMISSIONER. THE COMMISSIONER MAY APPEAR AS A PARTY TO ANY ACTION BROUGHT BY ANY OTHER PERSON WITHIN THIRTY DAYS FROM THE DATE SUCH appeal is returned to the court. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.”
      The language added by amendment in Public Acts 1987, No. 87-338, § 8 is indicated in capital letters.

       The commission’s motion to dismiss recited the following:
      “The defendant hereby moves the Court to dismiss the plaintiff’s appeal for insufficiency of process and/or lack of subject matter jurisdiction for failure of plaintiffs to serve the Commissioner of the Department of Environmental Protection with notice of said appeal as required by C.G.S. 22a-43.”

       At that time the plaintiffs served the commissioner with a writ, an “amended citation” and copies of both the original citation and complaint and the amended complaint.

       The trial court did not note or refer in its memorandum of decision to the additional language of the 1987 amendment immediately following this quoted language. The addition states: “The Commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court.”

       The same public act also amended General Statutes § 8-28 (a) that concerns appeals from planning commissions by adding the identical language to § 8-28 (a). See Public Acts 1988, No. 88-79, § 2.

       See footnote 1, supra.

       Public Acts 1987, No. 87-338, § 8, also amended § 22a-43 (a) by adding additional language in the first sentence of this statute. That language is not crucial in our construction of the language in issue nor has any party on this appeal made any such claim.

       The term “party” is not defined in the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-28 through 22a-45, although that act does contain a definitional section. See General Statutes § 22a-38. We, therefore, assume that the legislature intended that it be given its usual meaning.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Richard Rogozinski et al. v. American Food Service Equipment Corporation et al.
    (13583)
    Peteks, C. J., Shea, Callahan, Covello and Ment, Js.
    Argued February 28
    decision released June 13, 1989

      AliceS. Miskimin, with whom, on the brief, was Herbert Watstein, for the appellants (plaintiffs).

      Thomas G. Parisot, for the appellee (named defendant).

      James E. Kernan, for the appellee (defendant Henry M. Osowiecki & Sons, Inc.).

      Louis B. Blumenfeld, with whom were Annamarie DiBartolo and, on the brief, Eugene A. Cooney, for the appellee (defendant Regional Reporting Services of New England, Inc.).

      Robert H. Hall, for the appellee (defendant Connecticut Light & Power Company).

      Bryan L. LeClerc, for the appellees (defendant Marcel Dionne et al.).
   Covello, J.

This is an action in which the plaintiffs sought to recover damages for a fire loss that was alleged to have been caused as the result of the defendants’ negligence. The dispositive issue is whether the trial court erred in dismissing the plaintiffs’ action for failure to return process within the six day period required by General Statutes § 52-46a.

Examination of the record discloses that the writ and summons bore a return date of April 26,1988. The record further reflects that the process was stamped as received in the clerk’s office on April 21,1988, less than six days before the stated return date. The defendants moved to dismiss the action for failure to return the process in a timely manner. The trial court granted the motions of the named defendant et al. The plaintiffs thereafter appealed that decision to the Appellate Court. We then transferred the matter to ourselves pursuant to Practice Book § 4023.

General Statutes § 52-46a states in relevant part that “[pjrocess in civil actions . . . shall be returned . . . to the clerk of [the superior court] at least six days before the return day.” “[This] statute is mandatory and failure to comply with its requirements as to the time when process shall be served renders the proceeding voidable and subject to abatement. 1 Freeman, Judgments (5th Ed.), p. 697; see 33 C.J. 1093, note 78a; 49 C. J.S. 63, note 36. There is no decision by this court to the contrary. The fact that in so few cases since the original enactment in 1744 has it had occasion to refer to this provision, as well as the language used when it has done so, is indicative that the statute’s requirements have been deemed too plain for question.” Daley v. Board of Police Commissioners, 133 Conn. 716, 719-20, 54 A.2d 501 (1947); See Chevalier v. Wakefield, 85 Conn. 374, 375, 82 A. 973 (1912); E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 22, p. 73.

Despite the clear precedent to the contrary, the plaintiffs claim that the trial court should have denied the motion to dismiss because of the language contained in General Statutes § 52-123. The plaintiffs argue that the late return of process was a “circumstantial error” within the meaning of § 52-123 and, therefore, the matter should not have been dismissed. We do not agree.

This statute “has been in existence [over three hundred years] and has been preserved [essentially] unaltered during this long period of time, though revision after revision of the statutes has been made . . . . ” Andrews v. Thayer, 40 Conn. 156,158 (1873). It was designed to ameliorate the rigors of the common law that required the precise designation of all persons, whether or not parties to an action. E. Stephenson, supra, § 105, p. 433. The statute is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process. We have never held to the contrary.

Circumstantial defects not subject to abatement by reason of § 52-123 or its predecessors have included the mistaken use of a Practice Book form; Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 357, 514 A.2d 749 (1986); failure to designate an apartment number in a writ; Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 477-79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904,100 S. Ct. 1079, 63 L. Ed 2d 319 (1980); an erroneous reference in appeal papers to “next term” instead of “next return day”; New Haven Loan Co. v. Affinito, 122 Conn. 151,154,188 A. 75 (1936); a copy of the affidavit attached to the writ served upon the defendant that did not bear the signature of the affiant; Matthai v. Capen, Trustee, 65 Conn. 539, 33 A. 495 (1895); an erroneous reference in the return to “the City Court held at New Haven in and for the city of New Haven” instead of “The City Court of New Haven”; New England Mfg. Co. v. Starin, 60 Conn. 369, 370, 22 A. 953 (1891); an erroneous prayer for relief on the writ and declaration rather than on the writ alone; Draper v. Moriarity, 45 Conn. 476 (1878); and a defendant who had signed his name in the body of a plea in abatement signed “defendant” at the end of the plea instead of again signing his name. Wilcox v. Chambers, 34 Conn. 179 (1867).

Thus, despite its facially expansive language, § 52-123 and its predecessors have been uniformly limited in their application to defects in the writ. See E. Stephenson, supra, § 101, pp. 435-36. Meanwhile, there is uncontroverted authority to the effect that defects in the process are voidable and therefore subject to abatement. We see no reason to disturb this well recognized distinction.

The plaintiffs next claim that by mailing the complaint on April 18, they have complied with the time requirements of General Statutes § 52-46a. We disagree. The only timely way to return process is to deliver it in such a manner as ensures that it is physically in the clerk’s office within the prescribed time period. The mailing of the process at least six days before the return date does not satisfy the statutory requirement that the process be returned “to the clerk ... at least six days before the return day.”

We conclude, therefore, that the trial court did not err in dismissing the plaintiffs’ action for failure to file the return of process at least six days prior to the return date.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-123 provides: “circumstantial defects not to ABATE pleadings. No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

       Ostensibly, the General Assembly specifically considered this issue when it enacted General Statutes § 52-592, the accidental failure of suit statute, inasmuch as it specifically refers to the failure to return process. Since that statute authorizes the reinitiation of a suit that has failed “to be tried on its merits because of insufficient service or return of the writ due to . . . neglect of the officer to whom it was committed” then, arguably, a suit whose process fails for an unknown reason, such as is the case here, should not be treated any more harshly.


author: Hull, J.

text:
    Greater Bridgeport Transit District v. Local Union 1336, Amalgamated Transit Union et al.
    (13529)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued February 7
    decision released June 13, 1989

      Thomas J. Weihing, with whom was John T. Bochanis, for the appellant (plaintiff).

      Burton S. Rosenberg, with whom, on the brief, was Douglas Taylor, for the appellee (named defendant).

      Joseph M. Celentano, assistant counsel, for the appellee (defendant state board of labor relations).
   Hull, J.

The dispositive issue on this appeal is whether the trial court erred in dismissing, for lack of subject matter jurisdiction, an independent action challenging the scope of an administrative agency’s jurisdiction and seeking injunctive relief prohibiting the agency from conducting a hearing on a matter involving the complainant. We conclude that the trial court’s judgment of dismissal was correct.

The undisputed facts relevant to this appeal are as follows. The plaintiff, Greater Bridgeport Transit District, is a transit district created and governed by General Statutes § 7-273b et seq. The plaintiff provides public transportation for the communities of Bridgeport, Stratford, Fairfield and Trumbull. The defendant, Local 1336, Amalgamated Transit Union (union), is the representative of the plaintiff’s unionized employees. On January 1, 1987, the plaintiff instituted a revised attendance policy for its employees. On January 12, 1987, the union filed a complaint with the defendant Connecticut state board of labor relations (board), claiming that the formation of a new employee attendance policy involved a mandatory subject of collective bargaining and that the plaintiff’s implementation of such a policy without first negotiating with the union constituted an unfair labor practice. In addition, on February 13,1987, the union, pursuant to provisions contained in its collective bargaining agreement with the plaintiff, filed a demand for arbitration with the American Arbitration Association. Citing the same reasons as alleged in its complaint to the board, the union in its demand for arbitration claimed that the plaintiff’s revised attendance policy was violative of the collective bargaining agreement between the parties and sought to have the policy withdrawn.

On August 27, 1987, the plaintiff received a notice of hearing from the board scheduling a hearing on the union’s complaint for November 17,1987. On November 16,1987, the plaintiff filed with the Superior Court its own complaint, claiming that the board did not have jurisdiction to hear the union’s complaint because arbitration was the exclusive remedy for the union’s grievance. In its claims for relief, the plaintiff sought a temporary and permanent injunction prohibiting the board from conducting a hearing on the union’s complaint. On November 30, 1987, the board filed an amended motion to dismiss the plaintiffs complaint, claiming, inter alia, that the trial court lacked subject matter jurisdiction to issue an injunction on the plaintiffs complaint because the plaintiff had failed to exhaust its administrative remedies. On May 27,1988, the trial court, Harrigan, J., issued a memorandum of decision in which it granted the board’s amended motion to dismiss. Relying on the doctrine of exhaustion of administrative remedies, the court held that it was “improper and premature for the [plaintiff to bring this action and the court therefore lacks jurisdiction,” i.e., the plaintiff was required to exhaust its administrative remedies by litigating its jurisdictional claim in the first instance before the board. The plaintiff appeals this decision of the trial court dismissing its complaint.

“ ‘It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977); State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 Davis, Administrative Law § 20.01; General Statutes §§ 4-175, 4-183.’ Connecticut Mobile Home Assn., Inc. v. Jensen’s Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979).” Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987). The present appeal requires us to determine whether an administrative agency has exclusive initial power to determine its own jurisdiction in a particular case. The plaintiff maintains that the general rule requiring exhaustion of administrative remedies does not apply to claims challenging the scope of an administrative agency’s jurisdiction and that the question of an agency’s jurisdiction may be litigated in the first instance in the Superior Court through an independent action. We disagree.

A claim that an administrative agency has acted beyond its statutory authority or jurisdiction properly may be the subject of an administrative appeal. See General Statutes § 4-183 (g). Where there is in place a mechanism for adequate judicial review, such as that contained in § 4-183, “[i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court.” 2 Am. Jur. 2d, Administrative Law § 332 and cases therein cited. This general rule is in accord with our frequently stated observation that “ ‘when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.’ ” Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984), quoting Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). We are persuaded that the jurisdictional claim raised in the plaintiffs complaint to the Superior Court is properly, and exclusively, within the power of the board to decide in the first instance. The plaintiff may then, if necessary, raise the jurisdictional issue on administrative appeal pursuant to General Statutes § 4-183. •

Further support for our position may be found in several recent cases decided by this court where challenges to an administrative agency’s authority to act, asserted initially in the Superior Court, were held to be premature. See Greater Bridgeport Transit Districts. Commission on Human Rights & Opportunities, 211 Conn. 129, 557 A.2d 925 (1989); Commission on Human Rights & Opportunities v. Archdiocesan School Office, 202 Conn. 601, 522 A.2d 781, appeal dismissed, 484 U.S. 805,108 S. Ct. 51, 98 L. Ed. 2d 15 (1987); Laurel Park, Inc. v. Pac, supra; Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983). Accordingly, we conclude that the trial court lacked jurisdiction to hear the plaintiff’s complaint and therefore properly granted the board’s motion to dismiss.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 4-183 (g) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       We note that the plaintiffs complaint does not present a constitutional claim, which is a recognized exception to the exhaustion of administrative remedies doctrine. See, e.g., Friedson v. Westport, 181 Conn. 230, 232-33, 435 A.2d 17 (1980).

       We note that, despite having ruled that it lacked subject matter jurisdiction to consider the issue of the board’s jurisdiction raised in the plaintiff’s complaint, the trial court nevertheless, inexplicably, spent a portion of its memorandum of decision addressing that very issue. The trial court’s discussion of the merits of the plaintiff’s complaint, however, is not binding upon the board and should be treated as mere dicta: “ ‘Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the [plaintiffs] complaint, any further discussion of the merits is pure dicta. Lacking jurisdiction, neither the trial court nor this court should deliver an advisory opinion on matters entirely beyond our power to adjudicate.’ Doe v. Heintz, 204 Conn. 17, 38, 526 A.2d 1318 (1987) (Peters, C. J., concurring).” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989).


author: Callahan J.

text:
    State of Connecticut v. John A. Almeda
    (13559)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued March 7
    decision released June 13, 1989

      John R. Williams, for the appellant (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Callahan J.

The defendant was charged in an indictment with the murder of Ronald Wynn on September 19,1979, in Groton, in violation of General Statutes § 53a-54a (a). As a result of the same incident in which Ronald Wynn was killed, the defendant was also charged in an information with the attempted murder of Ronald’s brother, Ricky Wynn, by the use of a firearm in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a. In 1981, a jury found the defendant guilty of the murder of Ronald Wynn and guilty of attempted manslaughter in the first degree in the case of Ricky Wynn. After the verdicts were returned, the defendant filed motions in arrest of judgment and for a new trial, claiming, first, that there was no such crime as attempted manslaughter in the first degree and, second, that a juror who had failed to disclose material information during the voir dire was seated on the trial jury. The court agreed with the defendant in both instances and acting on his motions arrested judgment on the guilty verdict of attempted manslaughter in the first degree, set aside the murder verdict and ordered a new trial.

On the state’s appeal of the trial court’s action to this court, we held that “attempted manslaughter in violation of § 53a-55 (a) (1) is not a crime cognizable under our law.” State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983) (Almeda I). At the same time we remanded the case to the trial court for a determination of whether actual juror bias had been demonstrated. Id., 314. After a hearing on that question the trial court articulated a finding of actual juror bias. On the return of the case to this court we concluded that the trial court had not erred by vacating the murder conviction and ordering a new trial as to both the indictment and the information. State v. Almeda, 196 Conn. 507, 508-509, 493 A.2d 890 (1985) (Almeda II).

At the defendant’s second trial the state proceeded on the original murder indictment in the case involving Ronald Wynn’s death but in July, 1985, filed a substitute information charging the defendant with assault in the first degree in violation of § 53a-59 (a) (1) 6rather than attempted murder or manslaughter in the case of Ricky Wynn. After a trial that commenced in December, 1987, a jury found the defendant guilty of manslaughter in the first degree in violation of § 53a-55 (a) (1) as a lesser included offense of murder as charged in the indictment and also found him guilty of assault in the first degree as charged in the substitute information. The trial court, thereafter sentenced the defendant to consecutive terms of not less than ten nor more than twenty years on the manslaughter conviction and not less than seven and one-half years nor more than fifteen years on the assault conviction. The defendant has appealed, claiming that: (1) prosecution on the charge of assault in the first degree was barred both by the statute of limitations and by the constitutional prohibition against double jeopardy; (2) the state failed to prove that Ricky Wynn suffered “serious physical injury” within the meaning of § 53a-59 (a) (1); and (3) that the trial court erred by admitting the written statement of a witness for substantive purposes.We find no error.

A brief recitation of the facts that led to the defendant’s convictions is necessary in order to place his claims in proper perspective. In September, 1979, the defendant’s girlfriend and Ronald and Ricky Wynn were employed at the Electric Boat Company in Groton. Ronald Wynn and the defendant had been friends but shortly before Ronald’s death enmity had arisen between them over remarks allegedly made by Ronald to the defendant’s girlfriend. As a result, Ronald Wynn and the defendant had an unpleasant encounter on the afternoon of September 18, 1979, when they met at the New Haven Railroad Station as Ronald and Ricky Wynn were boarding a commuter bus to Electric Boat where they worked the 5 p.m. to 1:30 a.m. shift. The defendant did not board the bus but later picked up Ronald Wynn’s wife in his automobile at her home and proceeded to Groton, ostensibly to have Ronald’s wife pour oil on the troubled waters that separated Ronald Wynn from the defendant and his girlfriend.

The situation deteriorated while the defendant and Ronald’s wife were in Groton, however, and events culminated in an altercation between the defendant and Ronald outside the main gate at Electric Boat when Ronald’s shift ended. After a physical scuffle in which Ronald apparently bested the defendant, an argument ensued which ended when the defendant shot and killed Ronald Wynn with a single shot from a .22 caliber pistol that he had purchased on the street in New Haven the previous day. Immediately after shooting Ronald Wynn, the defendant twice shot Ricky Wynn as he ran to his brother’s aid. One bullet struck Ricky at the left eyebrow and lodged in front of his left ear. The other entered his neck and shattered on impact with his cervical spine. The defendant was arrested almost immediately thereafter as he was about to leave the area in his automobile.

I

The defendant first claims that his prosecution for assault in the first degree in violation of § 53a-59 (a) (1) arising from the shooting of Ricky Wynn was barred by the statute of limitations, General Statutes § 54-193 (b), because the substitute information charging him with that crime was not filed until July 10, 1985, more than five years after the shooting on September 19, 1979. The state maintains, however, that the original information charging the defendant with attempted murder tolled the statute of limitations and permitted prosecution on the substitute information.

The statute of limitations, General Statutes § 54-193 (b) provides in pertinent part that: “No person may be prosecuted for any offense . . . for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed.” At the core of the limitations doctrine is notice to the defendant. United States v. Gengo, 808 F.2d 1, 3 (2d Cir. 1986). Its principal purpose is to ensure “that a defendant receives notice, within a prescribed time, of the acts with which he is charged, so that he and his lawyers can assemble the relevant evidence [to prepare a defense] before documents are lost [and] memories] fade . . . . ” United States v. O’Neill, 463 F. Sup. 1205,1208 (E.D. Pa. 1979); United States v. Gengo, supra; United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976); United States v. Panebianco, 543 F.2d 447, 454 n.6 (2d Cir. 1976), cert. denied sub nom. Anotala v. United States, 429 U.S. 1103, 97 S. Ct. 1128, 51 L. Ed. 2d 553 (1977); United States v. Lytle, 677 F. Sup. 1370, 1376 (N.D. Ill. 1988). If, therefore, the facts underlying a superseding information substituting a different charge in a continuing prosecution are substantially similar to the facts underlying a timely filed information, the main purpose of the statute of limitations has been fulfilled, i.e., timely notice to the defendant of the factual allegations against which he will be required to defend. United States v. Grady, supra; United States v. Panebianco, supra, 454; United States v. Lytle, supra; United States v. O’Neill, supra, 1207; People v. Gallo, 54 Ill. 2d 343, 349-50, 297 N.E.2d 569 (1973). If that aim is accomplished, a previously filed information may toll the statute of limitations. United States v. Grady, supra; State v. Saraceno, 15 Conn. App. 222, 239-40, 545 A.2d 1116 (1988). To ascertain if an information tolls the statute to allow the filing of a substitute information after the limitations period has passed it must be determined whether the substitute information “broaden[s] or substantially amend[s] the charges made in the first [information].” United States v. Grady, supra, 602; United States v. Gengo, supra; United States v. Friedman, 649 F.2d 199, 203 (3d Cir. 1981); United States v. Panebianco, supra, 454; United States v. Lytle, supra; State v. Saraceno, supra. If it does not, then the defendant has not been called upon to address any factual allegations by the state beyond those already charged and the substitute information is not time barred. United States v. Elliott, 849 F.2d 554, 561 (11th Cir. 1988); United States v. Gerstner, 548 F. Sup. 348, 349 (S.D.N.Y. 1982); United States v. O’Neill, supra, 1207; State v. Saraceno, supra, 240.

Here the factual allegations underlying the substitute information charging the defendant with assault in the first degree in the shooting of Ricky Wynn, were identical to the facts underlying the original information charging the defendant with the attempted murder of Ricky Wynn. The defendant therefore was not called upon, at his trial on the substitute information, to answer for any activities that he had not been required to defend against in his first trial on the original information. Moreover, in our decision finding no error in the trial court’s arrest of judgment on the attempted manslaughter conviction, which was published within the period of limitation, we explicitly indicated that on a second trial the defendant could be prosecuted on the charge of assault in the first degree for the shooting of Ricky Wynn. Almeda I, supra, 309-10.

Under the circumstances of this case, therefore, we conclude that the substitute information on the charge of assault in the first degree was not time barred so long as the defendant was not significantly prejudiced by the delay in the filing. United States v. Panebianco, supra, 454. The defendant failed to point out any prejudice occasioned by the substitute information. Nor is that surprising. It is obvious that from the date of his arrest, the defendant was aware of the factual allegations against which he would have to defend in regard to his assault on Ricky Wynn, whether he was ultimately charged with attempted murder or assault in the first degree. The substitute information, not having changed those factual allegations nor having occasioned any significant prejudice to the defendant, is not time barred. State v. Saraceno, supra.

The defendant also claims that his prosecution on the charge of assault in the first degree is foreclosed by principles of double jeopardy. This court “allude[d] to” the issue of double jeopardy in Almeda I, supra, 309-10, and indicated that it did not bar the trial of the defendant on that charge. We do not, however, have to reach the merits of the defendant’s double jeopardy claim because he “ ‘proceeded to trial, verdict and judgment without raising [a double jeopardy] claim.’ [State v. Jones, 166 Conn. 620, 630, 353 A.2d 764 (1974)].” State v. Price, 208 Conn. 387, 390, 544 A.2d 184 (1988). “ ‘[I]n so doing he impliedly waived the defense of double jeopardy, and, therefore, that issue [is] not before us for determination on the merits.’ [State v. Jones, supra].” Id.; United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984); Grogan v. United States, 394 F.2d 287, 289 (5th Cir. 1967), cert. denied, 393 U.S. 830, 89 S. Ct. 97, 21 L. Ed. 2d 100 (1968).

II

The defendant next claims that the state failed to prove beyond a reasonable doubt that Ricky Wynn suffered a “serious physical injury” within the meaning of General Statutes §§ 53a-59 and 53a-3 (4) when he was shot by the defendant. He contends, therefore, that because the state failed to prove an essential element of the crime of assault in the first degree the trial court erred when it denied his motions to acquit him of that charge.

“Serious physical injury” is defined by § 53a-3 (4), for the purpose of § 53a-59, as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” It is undisputed that the victim was shot in the face and neck by the defendant. As previously indicated, one of the bullets entered near his left eyebrow and came to rest by his left ear near his jaw. The other bullet entered his lower neck where it shattered on impact with his cervical spine and lodged against the spine. Immediately after the shooting the victim was transported by ambulance from the scene of the crime to the hospital where the first bullet was removed by surgery with the use of a local anesthetic. After consultation with a neurosurgeon, however, it was decided that because of the risk involved in extracting the second bullet it would not be removed. The victim’s wound, therefore, was simply cleaned and sutured and he was well enough to be discharged from the hospital the following day.

The defendant points out that the only expert medical testimony in the case, that of the victim’s treating physician, failed to demonstrate that the victim had “suffered a substantial risk of death or serious disfigurement or serious impairment of health or serious loss or impairment of the function of any bodily organ.” He maintains therefore that his motions for acquittal should necessarily have been granted by the trial court. We disagree.

The victim testified that he had been “laid up” and out of work for approximately one year after he was shot. He also testified at the second trial, nearly eight years after the shooting, that he was still having problems and significant pain on a daily basis and that he still felt “lousy” upon awakening in the morning. Further, the wound to the neck left a scar and the bullet remained in the back of his neck where the victim could feel it with his hand. Under the circumstances, whether Ricky Wynn suffered a “serious physical injury” was a question of fact for the jury. State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987); State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978); State v. Jeustiniano, 172 Conn. 275, 281, 374 A.2d 209 (1977); State v. McCulley, 5 Conn. App. 612, 615, 501 A.2d 392 (1985). “In reviewing the sufficiency of the evidence concerning this element of assault in the first degree, our task is to construe the evidence in the light most favorable to sustaining the jury’s verdict, and then to determine whether any rational trier of fact could have found that the harm suffered rose to the level of a ‘serious physical injury’ under the statute. State v. Rossier, supra; State v. Jeustiniano, supra, 281-82; State v. McCulley, supra. We cannot substitute our judgment for that of the jury. State v. Rodriquez, [200 Conn. 685, 693, 513 A.2d 71 (1986)]. Despite the difficulty of drawing a precise line as to where ‘physical injury’ leaves off and ‘serious physical injury’ begins, in light of [Ricky’s testimony] concerning the extent of [his] injuries, we cannot say as a matter of law that the jury could not reasonably have found that he suffered ‘serious physical injury.’ State v. Rossier, supra; State v. Jeustiniano, supra, 282; State v. McCulley, supra.” State v. Miller, supra, 489. The trial court, therefore, did not err in denying the defendant’s motions for acquittal.

Ill

Finally, the defendant claims that the trial court erred when it allowed into evidence a written, signed, but unsworn statement given by a witness, Helen Martinez, to Officer Merrit D’Amico of the Groton police department on September 20,1979, the day after the shooting. In her statement Martinez related that on the night of September 18,1979, in a bar across the street from Electric Boat she had heard the defendant “[tell] Ronnie Wynn that, if he touched his old lady, he was gonna get him” and that after Wynn left the bar, the defendant told her that if Wynn touched his “old lady” he would kill him.

At trial, Martinez testified and denied having mentioned such threats when she gave her statement to D’Amico. Thereafter the trial court, over the defendant’s objection, allowed Martinez’ statement to be admitted as substantive evidence of the defendant’s guilt. The defendant contends that the trial court erred in so doing. In a three-pronged argument the defendant contends that Martinez’ statement was not admissible under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because it was unsworn, that the statement had been excluded in his first trial and that ruling constituted the “law of the case,” and that the admission of the statement violated the ex post facto prohibitions of article I, § 9 and 10 of the United States constitution. We disagree.

Although the prior inconsistent statement admitted for substantive purposes in State v. Whelan, supra, happened to be sworn, our holding in that case did not impose an oath as a requirement for the admission of such statements. Rather, we adopted “a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id., 753; State v. Ruiz, 202 Conn. 316, 329-30 n.3, 521 A.2d 1025 (1987); State v. Wilson, 17 Conn. App. 97, 99, 550 A.2d 21 (1988); State v. Green, 16 Conn. App. 390, 397, 547 A.2d 916 (1988). Under the criteria established in State v. Whelan, supra, therefore, Martinez’ prior inconsistent statement was admissible. This claim of the defendant consequently is without merit.

The defendant next contends that because Martinez’ statement had been excluded from evidence at his first trial in 1981, that ruling was the “law of the case” and the trial court erred in admitting it at his second trial. This claim also is without merit. The defendant’s first trial was completed prior to our decision in State v. Whelan, supra. The defendant’s second trial was commenced some sixteen months after State v. Whelan, supra, was decided. Under the rules of evidence extant at the time of the defendant’s first trial, the trial court determined that Martinez’ statement was inadmissible. At the time of the defendant’s second trial, however, State v. Whelan, supra, had been decided and the trial court ruled that Martinez’ statement was admissible for substantive purposes.

The change in the law of evidence wrought by State v. Whelan, supra, patently prompted the trial court to deviate from the previous evidentiary ruling of the initial trial court. This was not error. “[I]t is well established that a trial judge need not follow the decisions of another judge made at an earlier stage of the proceedings. Breen v. Phelps, 186 Conn. 86, 439 A.2d 1066 (1982); Santore v. Kleinberger, 115 Conn. 631, 638,163 A. 107 (1932).” State v. Rogers, 199 Conn. 453, 459, 508 A.2d 11 (1986). “[T]he law of the case is not an inflexible principle and in a proper situation a judge may modify or depart from an interlocutory ruling of another coordinate magistrate, in whole or in part. Breen v. Phelps, supra, 98-100.”Id.; Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984).

The defendant lastly claims that the admission of Martinez’s statement violated the ex post facto prohibitions of the federal constitution. We disagree. The change in the law of evidence effected by State v. Whelan, supra, “did not (1) attach criminality to any act previously committed; (2) aggravate any crime theretofore committed; (3) provide greater punishment than was prescribed at the time of the commission of the crime; or (4) alter the degree or lessen the amount or measure of the proof necessary to sustain a conviction when the crime was committed.” Murphy v. Sowders, 801 F.2d 205, 209 (6th Cir. 1986), cert. denied, 480 U.S. 941, 107 S. Ct. 1593, 94 L. Ed. 2d 782 (1987); State v. Belk, 759 S.W.2d 257, 259 (Mo. App. 1988). Rather, State v. Whelan, supra, removed existing strictures upon the admissibility of evidence and thereby “merely alter[ed] the procedure of [the] trial.” Murphy v. Sowders, supra. Laws that change the elements or facts necessary to establish guilt are substantive in nature and as such are subject to ex post facto prohibition whereas mere procedural changes are not subject to such prohibition. Miller v. Florida, 482 U.S. 423, 433, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987); Dobbert v. Florida, 432 U.S. 282, 292-93, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977); Watson v. Estelle, 859 F.2d 105,107 (9th Cir. 1988).

The rules of evidence are procedural. State v. Lorain, 141 Conn. 694, 701, 109 A.2d 504 (1954); State v. Leonard, 151 Ariz. 1, 4, 725 P.2d 493 (1986); State v. Clark, 756 S.W.2d 565, 570 (Mo. App. 1988); State v. Moutray, 728 S.W.2d 256, 263 (Mo. App. 1987); Tumlinson v. State, 757 S.W.2d 440, 442-43 (Tex. App. 1988). “[Procedural] regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable . . . without reference to the date of the commission of the offence charged.” (Emphasis added.) Hopt v. Utah, 110 U.S. 574, 590, 4 S. Ct. 202, 28 L. Ed. 262 (1884). A change in the rules of evidence, therefore, after an offense, but before the time of trial, that allows the admission of evidence previously inadmissible does not violate the prohibition against ex post facto laws; Beazell v. Ohio, 269 U.S. 167,170-71,46 S. Ct. 68, 70 L. Ed. 216 (1925); Thompson v. Missouri, 171 U.S. 380, 387, 18 S. Ct. 922, 43 L. Ed. 204 (1898); State v. Belk, supra; State v. Stevens, 757 S.W.2d 229, 232 (Mo. App. 1988); even though it may work to the disadvantage of the accused. Dobbert v. Florida, supra, 293. “[A] change in a statute after ■the alleged crime which allowed the hearsay statements of a child victim of sexual abuse to be admitted . . . at trial when previously such a statement was inadmissible was not a prohibited ex post facto law because it simply authorized the introduction of additional evidence of guilt.” State v. Stevens, supra. “[A] state could regulate, withóut ex post facto implications, the facts which ‘may be placed before the jury.’ ” Murphy v. Sowders, supra, 210. The constitutional prohibition against ex post facto laws does not apply to changes in the rules of evidence “whether statutory or court made.” State v. Steelman, 120 Ariz. 301, 318, 585 P.2d 1213 (1978).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION.' CLASSIFICATION, (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 or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-49 (a) (2) 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 . . . (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.”

       The trial court charged the jury that attempted manslaughter in the first degree was a lesser included offense of attempted murder. See General Statutes §§ 53a-49 (a) (2) and 53a-55 (a) (1).

       General Statutes § 53a-55 (a) (1) provides: “manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

       General Statutes § 53a-59 (a) (1) provides: “assault IN THE first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . .”

       General Statutes § 54-193 (b) provides in pertinent part: “limitation OF PROSECUTIONS FOR VARIOUS OFFENSES. . . .
      “(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense had been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed. ...”

       Federal contitutional guarantees against double jeopardy were made applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       General Statutes § 53a-3 (4) provides: “definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title ....
      “(4) ‘Serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”


author: Glass, J.

text:
    State of Connecticut v. John Blasius
    (13506)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued April 4
    decision released June 13, 1989

      Michael J. McClary, with whom, on the brief, were HughF. Keefe, JohnJ. Keefe, Jr., and Charles E. Tier-nan III, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Turcotte, assistant state’s attorney, for the appellee (state).
   Glass, J.

In a four count information, the state accused the defendant of sexually assaulting a mentally retarded adult woman. Each count alleged that the offenses occurred “on or about a date between January 1,1985 through June 22,1985.” Because of the victim’s handicap, the state was unable to allege specific dates of the offenses charged. The trial court granted the defendant’s motion to dismiss the charges on the ground that the time frame alleged impermissibly interfered with his ability to assert an alibi defense. The Appellate Court set aside the trial court’s judgment. State v. Blasius, 15 Conn. App. 289, 543 A.2d 790 (1988). We granted the defendant’s petition for certification on the following issue: “Did the Appellate Court err in reversing the trial court’s dismissal of the information against the defendant?” State v. Blasius, 209 Conn. 807, 548 A.2d 444 (1988). We now affirm the Appellate Court’s judgment.

Police arrested the defendant pursuant to a warrant on September 5,1985. According to the affidavit submitted in support of the arrest warrant, the defendant and his wife operated a community training home in Hamden. The victim, M, a moderately retarded adult female, had been a resident of the home since 1982. During the period in question, two other adult females, described as severely retarded, also resided at the community home.

In the early summer of 1985, M disclosed to her social worker that the defendant had had sexual relations with her on several occasions. An investigator for the state promptly removed her from the home. In subsequent interviews with police, M disclosed three distinct incidents of sexual relations with the defendant. She was unable to provide investigators with specific dates of the alleged incidents. She did disclose, however, that one alleged incident occurred while she was wearing shorts and another while she was wearing a sweater. According to the affidavit, although M was thirty-one years of age at the time of the alleged incidents, she possessed a mental age of a five and one-half year old child.

Upon the defendant’s arrest, the state filed a short form information charging him with four counts of sexual assault in various degrees. Each count alleged that the offenses occurred “on or about” January, 1985, to July 8, 1985. On September 16, 1985, the defendant filed a motion for a bill of particulars requesting the specific date and time of each offense charged. He also filed on that date a motion for an extension of time to file notice of his intention to offer a defense of alibi. Neither the state nor the trial court took any action on the defendant’s motion for a bill of particulars. On January 8, 1987, the state filed a long form information charging the defendant with three counts of sexual assault in the second degree. General Statutes § 53a-71; and one count of sexual assault in the fourth degree. General Statutes § 53a-73a.* Each count of the long form information alleged that “on or about a date between January 1, 1985 and through June 22, 1985, the said John Blasius did engage in sexual intercourse with another person . . . and [such other person] is mentally defective.”

On January 14,1987, the defendant moved to dismiss the charges on the ground that the state had failed to apprise him of the date or dates of the alleged incidents, and therefore compromised his ability to assert a defense of alibi. In response, the state claimed that M was unable to specify the precise dates or times. On June 17,1987, the trial court conducted a hearing and, on July 21, 1987, issued a memorandum of decision granting the defendant’s motion. The trial court found that “[although [the] court is mindful of the special difficulties inherent in prosecuting a crime of sexual assault where the victim is a child or a retarded person, and that a ruling requiring the State to set forth a specific time for the alleged offense may well leave those victims [who] require the most protection, the least protected, the court must also be mindful of the presumption of innocence and [the] defendant’s right to be informed of a precise statement of the offense charged in order to adequately prepare a defense. . . . [T]his court finds that the time frame alleged, of almost six months, does impose upon [the] defendant a burden of sufficient magnitude to prejudice his ability to present an adequate defense of alibi.”

On the state’s appeal, the Appellate Court set aside the trial court’s judgment dismissing the charges. State v. Blasius, 15 Conn. App. 289, 291-92, 543 A.2d 790 (1988). On certification to this court, the defendant claims that the Appellate Court erred in determining that the information should not have been dismissed. He argues that the time frame in the state’s information deprived him of his state and federal constitutional rights to due process and to be informed of the nature and cause of the accusations against him. U.S. Const., amend. VI; Conn. Const., art. I, § 8. In support of this claim, he asserts that the temporal breadth and vagueness of the state’s allegations contravenes the standard established in State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084,104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984), and the dictates of Practice Book §§ 618 (5) and 832.

“ ‘ “The state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the [United States nor the Connecticut] constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” State v. Stepney, supra, 242.’ State v. Laracuente, [205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, U.S. , 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988)].” State v. Spigarolo, 210 Conn. 359, 386, 556 A.2d 112 (1989); see also State v. Cates, 202 Conn. 615, 624, 522 A.2d 788 (1987).

“Generally, any time that an alibi is asserted as a defense to a criminal charge the precise time that the offense is alleged to have been committed is material to the defense.” State v. Evans, 205 Conn. 528, 535, 534 A.2d 1159 (1987), cert. denied, U.S. , 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988); see State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945) (date of offense may become material “where a defense of alibi is to be made”); but see State v. Laracuente, supra, 519 (language pertaining to alibi in Horton is dicta). Nevertheless, we have on a number of occasions “rejected the . . . claim . . . that the failure of the state to provide the exact date of the offense impermissibly compromised the defendant’s alibi defense . . . . ‘ “[A]n alibi defense does not create a per se requirement that the state limit the times in the information more narrowly than the evidence available warrants. . . .” ’ State v. Laracuente, supra.” State v. Spigarolo, supra, 387, and see cases therein cited. “Moreover, we have never held that when the charges are sex related and alibi is the defense asserted that the trial court should dismiss the charges unless the state, in response to a request, can allege the precise date of the offenses.” State v. Evans, supra, 535. “ ‘If the state [knows] to a reasonable certainty that the [offenses were] committed within a narrower time frame than that provided in the [information], then the . . . claim . . . would be more convincing.’State v. Stepney, supra, 242; State v. Evans, [supra, 536].” State v. Spigarolo, supra.

In cases such as the present one, there exists a profound tension between the defendant’s constitutional rights to notice of the charges against him and to present a defense, and the state’s interest in protecting those victims who need the most protection. See State v. Evans, supra, 540 (Covello, J., dissenting). We are persuaded, however, that the time frame alleged in the information was, under the unique circumstances of the present case, “within reasonable limits.” State v. Stepney, supra. Pretrial dismissal of an information on the ground that the time frame alleged may interfere with a defendant’s ability to present an alibi defense is normally “contrary to the law which governs at this stage of the case. “On a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state.’ State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984).” State v. Evans, supra, 536.

In State v. Spigarolo, supra, 361-62, the state had charged the defendant with several offenses, including two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), in connection with allegations that he had sexually molested two minor children aged nine and six. The counts alleged that the offenses were committed on “divers dates” between October, 1984, and January 3, 1985. The trial court denied the defendant’s motion for a bill of particulars requesting the date or dates of the acts. On appeal, we rejected the defendant’s claim that the failure of the state to specify the dates of the alleged offenses impermissibly compromised his ability to present an alibi defense. “During the investigation . . . neither [minor child] consistently disclosed any definite dates on which the incidents occurred. . . . Given the available information, the state . . . reasonably delimited the time frame of the alleged offenses.” Id., 386-87; cf. State v. Hauck, 172 Conn. 140,151, 374 A.2d 150 (1976) (information alleging risk of injury to minor over seven month period reasonable under circumstances).

In light of our holding in Spigarolo, we cannot agree with the defendant that the state’s failure to assert specific dates supported the trial court’s dismissal of the charges prior to trial. As in Spigarolo, the state has presented sufficient grounds to justify the time frame alleged. The trial court found that, because of her mental retardation, M could not tell investigators with any specificity when the alleged assaults occurred. Because of M’s handicap, “it would have been virtually impossible to provide the . . . dates upon which the acts constituting the offenses occurred.” State v. Hauck, supra, 150; State v. Spigarolo, supra, 386.

We recognize that the structure of the state’s allegations may impair the defendant's ability to present an alibi defense. Nevertheless, “the effectiveness of the alibi claim is a factual question that is best left to the trier for determination after all of the evidence has been presented.” State v. Evans, supra, 535. M’s handicap should not, nor cannot, stifle before trial the state’s legitimate efforts to exercise its responsibility to her, to others similarly handicapped, and to the public. Further, we refuse to pursue the course suggested by the defendant that a dismissal is required whenever the time frame of alleged offenses is six months and the defendant avers an intent to assert an alibi defense. Such a requirement would “create potential for [the] untenable tactic” of interposing notice of an intent to assert an alibi defense whenever a minor or mentally handicapped complainant could not state with precision the date or time of the alleged offense. See State v. Fawcett, 145 Wis. 2d 244, 254 n.3, 426 N.W.2d 91 (1988).

Further, we acknowledge that the state cannot satisfy the requirement of providing the date or time of the offense within reasonable limits by arbitrarily selecting dates or times. In the present case, however, the affidavit submitted in support of the arrest warrant indicates that M informed investigators that one incident occurred while she was wearing a sweater and another while she was wearing shorts. The state may have reasonably concluded from this information that at least one incident occurred in the winter and one in the late spring or summer. Construing this information “ ‘most favorably to the state’ State v. Evans, supra, 536; we cannot say that the time frame alleged was “arbitrary.”

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1985) § 53a-71 provides: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
      “(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-73a provides: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent, or (3) such person engages in sexual contact with an animal or dead body.
      “(b) Sexual assault in the fourth degree is a class A misdemeanor.”

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
      Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       Practice Book § 618 (5) provides: “The information shall . . . contain ... (5) A statement that such crime was committed on, or on or about, a particular date or period of time.” Practice Book § 832 provides: “The judicial authority shall order that a bill of particulars disclose information sufficient to enable the defendant to prepare his defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission.”

       See footnote 1, supra.

       The defendant also argues that the state’s information cannot stand because: (1) the state will be able to “enlarge” the time frame at trial if the evidence shows that any of the incidents occurred at a point prior to or after the dates alleged in the information; and (2) the dates alleged are insufficient to protect the defendant’s right against double jeopardy. To the extent that these claims are presently ripe for adjudication, we have reviewed them and find them to be without merit.