author: Covello, J.

text:
    Statewide Grievance Committee v. Zbigniew S. Rozbicki
    (14101)
    Peteks, C. J., Shea, Callahan, Covello and F. X. Hennessy, Js.

      Argued March 21
    decision released July 9, 1991

      Wesley W. Horton, with whom were Francis J. MacGregor and Paul J. McQuillan, for the appellant (defendant).

      Seymour N. Weinstein, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a judgment rendered on a presentment in which the Superior Court concluded that the defendant was guilty of professional misconduct. The procedural facts are as follows: on November 18, 1985, Helen Huybrechts filed a complaint with the Litchfield Grievance Panel alleging, inter alia, that the defendant (1) was suing her for legal fees she had not agreed to pay, (2) had purchased her home and two parcels of land for less than fair value, and (3) had received funds due her from a dissolution proceeding without accounting for them. On November 19,1987, after the grievance panel had found probable cause, the Statewide Grievance Committee (grievance committee) conducted a hearing and determined that the defendant was guilty of professional misconduct. The grievance committee directed that a presentment be filed against the defendant in Superior Court. On May 10,1988, counsel for the grievance committee filed a presentment pursuant to Practice Book § 31 alleging that the defendant committed professional misconduct. The presentment, in addition to describing the attendant factual circumstances, referred to specific sections of the Code of Professional Responsibility in describing the defendant’s misconduct. On June 10, 1988, the defendant filed a motion to dismiss the presentment based upon the failure of the subcommittee of the grievance committee to render a decision within ninety days of the probable cause determination as required by General Statutes § 51-90g (c). The trial court granted the motion. In response to an appeal by the grievance committee, we vacated the judgment of the trial court granting the motion to dismiss and remanded the matter for a determination of the merits of the complaint. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989). On June 5, 1990, following lengthy hearings, the trial court filed its memorandum of decision, concluding that, under the totality of circumstances, the defendant was guilty of professional misconduct. The trial court rendered judgment suspending the defendant’s right to practice law for three months. The defendant again appealed. We transferred the matter to ourselves pursuant to Practice Book § 4023 and now affirm.

The trial court found that the complainant and the defendant had maintained a social and professional relationship from 1978 to 1985 during which time the defendant had undertaken to represent the complainant in a marital dissolution action, had lent money to the complainant for payment of her mortgage and personal needs, and had advanced funds for her litigation expenses. On October 31,1980, the complainant quitclaimed 22 acres of land to the defendant in payment of legal services previously rendered and billed to her. The trial court concluded that none of the aspects of this transaction constituted professional misconduct.

In due course the dissolution action went to judgment. The defendant in that action appealed and the defendant here undertook to represent the complainant in connection with the appeal. The trial court found that the defendant had never submitted a bill to the complainant advising her of the full costs of his legal services for the appeal. On February 24,1982, the complainant quitclaimed another 30 acre parcel to the defendant in payment of the additional legal fees. The trial court concluded that by failing to disclose fully the costs of his representation to date and by failing to make an unequivocal effort to ensure that the complainant obtained independent counsel in connection with this second transfer, the defendant was guilty of professional misconduct.

The trial court further found that on January 6,1985, L. Warfield Ogden had offered to buy the complainant’s home for $250,000, provided that the complainant took back a purchase money mortgage of $37,500. On the advice of the defendant, the complainant rejected this offer. Ogden thereafter amended his offer by eliminating the purchase money mortgage. The defendant, however, at a later meeting with Ogden’s attorney, informed him that the complainant was unwilling to repair the roof and that the defendant himself was considering purchasing the property. The complainant had, in fact, offered to sell the property to the defendant several times in the past. Ogden thereafter withdrew his offer.

On January 18,1985, the defendant sent a letter to the complainant indicating that there were outstanding legal fees of about $5300. The trial court also found that on January 22,1985, the defendant signed a contract with the complainant to sell him her home for $232,500 with a credit of $7500 for roof repairs and damage done by a tenant. The defendant had arranged for attorney Walter Gradowski to represent the complainant in connection with the transaction but had not first informed Gradowski that he would be representing the complainant. The defendant thereafter provided all the essential terms of the contract to Gradowski. Although the closing date had originally been set for March 1,1985, the closing date was moved to March 4, because the complainant was unable to vacate by the earlier date. On March 2,1985, the defendant prepared a statement of the balance due for his legal services in connection with the appeal and for work still in progress. This bill totaled $7900. Gradowski incorporated this sum into the closing statement. This was unacceptable to the complainant who refused to close at that date. The trial court determined that the defendant had made no disclosure to her that she would be responsible for some or all of these legal fees at the closing, that some of the fees related to cases not yet completed, and that no invoice for the most recent legal services had been provided to the complainant prior to March 2, 1985. The trial court concluded that the defendant was guilty of professional misconduct in that he had overreached his client in advancing his own interests, by failing to inform the complainant of his fees until the closing date and by discouraging a potential buyer. Based upon all of the foregoing, the trial court then ordered the defendant’s suspension for three months.

The defendant has appealed, claiming that the trial court improperly: (1) denied the defendant’s motion to dismiss the presentment for failure to comply with Practice Book § 31 (a); (2) made findings on issues not contained in the presentment; and (3) made incorrect factual findings relative to the claim that he had committed misconduct in the purchase of the complainant’s house. The defendant also claimed that DR 1-102 (A) (6) and DR 7-101 (A) of the Code of Professional Responsibility are unconstitutionally vague and violate the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

I

The defendant first claims that the presentment should have been dismissed for failure to comply with Practice Book § 31 (a). Practice Book § 31 (a) states, in pertinent part: “Any interim proceedings to the contrary notwithstanding, a hearing on the merits of the [presentment] shall be held within sixty days of the date the complaint was filed with the court.” (Emphasis added.)

The relevant dates are as follows. On April 28,1988, the grievance committee filed the presentment. On May 23, 1989, we remanded the matter to the trial court for a hearing on the merits. On February 20, 1990, the hearing commenced, twenty-two months after the presentment was filed and nine months after we ordered the remand. The defendant argues that the language of § 31 (a) mandates dismissal under these circumstances.

The rules of statutory construction apply equally to statutes and rules of practice; Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); and in the interpretation of statutes the word “shall” may have a meaning that is directory rather than mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). ‘Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.’ Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).” Fidelity Trust Co. v. BVD Associates, supra, 278.

Practice Book § 31 (a) is designed to encourage order and dispatch in the prosecution of presentments. This section is cast in affirmative words, contains no penalty for noncompliance and purports only to establish a time limit for acting upon complaints. We conclude therefore that its terms are directory, and not mandatory, and that failure to meet its time requirements does not deprive the court of jurisdiction. In the context of this case, in which the major part of the delay was due to the plaintiff’s appeal and the defendant’s cross appeal to this court and the trial court’s attempt to arrange a convenient trial date for the complainant, then living overseas, we conclude that the purpose of § 31 (a), to avoid unnecessary and unreasonable delays, has been met and that the trial court did not abuse its discretion in refusing to dismiss the complaint. “ ‘Such statutes as ours are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers . . . . ’ Consequently, ministerial delays do not ordinarily warrant judicial abstention from dealing with the important issues raised by allegations of attorney misconduct.” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 239, 558 A.2d 986 (1989), quoting In re Peck, 88 Conn. 447, 457, 91 A. 274 (1914).

II

The defendant next claims that the judgment of the trial court violates Connecticut law and the due process clause of the fourteenth amendment to the United States constitution by making findings of fact regarding issues not alleged in the presentment. Specifically, the defendant argues that the misconduct based upon the circumstances concerning the second land transfer was neither alleged in the presentment nor supported by the evidence heard at trial and that he was, therefore, denied adequate notice of the charges against him as required by the United States constitution. We disagree.

Paragraphs ten and twelve of count one of the presentment specifically allege that the complainant “in satisfaction of [his] fee for services, conveyed a second parcel of real property to the [defendant] on February 24,1982,” and that “the deed was prepared by the [defendant’s] office and signed by the Complainant who was not represented by independent counsel.” Therefore, contrary to the defendant’s assertion, there were specific allegations in the presentment putting in issue the second land transfer. Further, “[i]t is important ... to emphasize that the rules regulating attorney grievance procedures exist within the broader framework of the relationship between attorneys and the judiciary. . . . An attorney ‘as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him.’ In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914).” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238-39, 558 A.2d 986 (1989). “ ‘ “The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court.” In re Bowman, 7 Mo. App. 569 [1879].’ ” In re Application of Pagano, 207 Conn. 336, 339, 541 A.2d 104 (1988). Thus, “courts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice.” In re Peck, supra, 457. “Once the complaint is made, ‘the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require.’ In re Peck, supra [452].” Statewide Grievance Committee v. Rozbicki, supra, 238-39. Thus we conclude that it was not an abuse of the court’s inherent power in presentment proceedings to find that the defendant committed professional misconduct in connection with the second land transfer based upon the allegations contained in the presentment.

There is equally no merit in the defendant’s further argument that the trial court’s finding that he failed to disclose the costs of his services was “completely outside the issues raised in . . . the . . . trial.” At trial, evidence was admitted and the defendant testified that “there was no formal bill prepared” or statement of account given to the complainant. In light of this evidence, we cannot say that the trial court abused its discretion in finding that the defendant failed to submit a bill for these services.

The defendant further claims that the allegations in the presentment were so imprecise that the subsequent court proceedings violated his constitutional rights to due process. In the context of presentment actions, “ ‘[d]ue process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded.’ Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). ‘In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.’ Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941).” (Emphasis added.) Statewide Grievance Committee v. Presnick, 215 Conn. 162, 169, 575 A.2d 210 (1990).

The trial court’s conclusions were based upon allegations concerning the defendant’s behavior in connection with the complainant’s transfer to him of the 30 acre parcel and the later transfer of the complainant’s home to him. The presentment apprised the defendant that these two transactions were the basis of the grievance committee’s allegations of misconduct. There is no question that the factual circumstances that served as the basis of the grievance committee’s allegations and the trial court’s eventual conclusions were known to the defendant, that all aspects of the two transactions were completely developed at the hearing, and the defendant was given a full opportunity to respond. Under these circumstances, we conclude that the requirements of due process were met. In re Application of Courtney, 162 Conn. 518, 523, 294 A.2d 569 (1972).

III

The defendant’s third claim is that the trial court’s findings in relation to the third count of the presentment were incorrect. Count three alleged that the defendant was guilty of professional misconduct by “determining all of the details of his purchase of the Complainant’s home and arranging for her to be represented by counsel to avoid the appearance of a conflict of interest.”

The trial court found that the complainant and the defendant entered into an agreement in which the complainant agreed to sell the defendant her home for $232,500. The trial court further found that while the complainant was not economically disadvantaged by the sale, the defendant did receive a “special benefit” on the purchase price in connection with a credit for damage done by a prior tenant. The trial court concluded that these benefits would not have been obtained by a third party buyer in an arm’s length transaction.

The trial court further found that the defendant had dictated all of the details of his purchase of the complainant’s home and had arranged for her to be represented by another attorney after the terms of the contract had been established unilaterally by the defendant. The trial court also determined that the sale of the property was designed to serve as a vehicle for the payment of expenses that the defendant had not yet disclosed to the complainant and that related to work not completed. The trial court concluded that the evidence was “clear and convincing that [the defendant] overreached in the contract negotiations to advance his own interest [in] that he did not inform the Complainant of his outstanding legal fees or the full amount of monies owed to him until after the original closing . . . and that he discouraged a potential buyer . . . and that [the defendant] did not obtain intelligent informed consent from Complainant prior to entering into this business relation with her.”

The defendant again argues that the trial court’s conclusions relate to factual issues not raised in the presentment and are unsupported by the facts. The defendant specifically claims that the finding that he determined the details of the contract is incorrect because the contract was prepared not by the defendant, but by a third party attorney. The defendant further claims that the finding that he received a special benefit, in and of itself, is insufficient to support a finding that DR 5-104 had been violated.

In its memorandum of decision the trial court did not say that the defendant actually wrote out the contract for the sale of the house, but that “[the defendant] provided Gradowski with the essential terms and conditions of the contract.” In addition, the trial court did not base its judgment that the defendant violated DR 5-104 solely upon its finding that defendant received a special benefit. The trial court, in fact, stated that the defendant’s use of the sale as a device for obtaining reimbursement for various expenses “[v]iewed independently . . . is not inculpatory.” The trial court did conclude, however, that the evidence, viewed as a whole, described a transaction in which the defendant overreached his client to pursue his own self-interest in violation of DR 5-104 (A) which states that: “A lawyer shall not enter into a business transaction with a client if they have differing interests therein . . . unless the client has consented after full disclosure.” (Emphasis added.)

“ ‘[A]n attorney whose fitness is challenged before the authority to which he owes and is responsible for the privileges he enjoys, has a right to an opportunity to be heard, a fair and dispassionate investigation, and a reasonable exercise of the judicial discretion; but his relation to the tribunal, and the character and purpose of the inquiry, are such, that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review.’ ” Statewide Grievance Committee v. Presnick, 216 Conn. 127, 131-32, 577 A.2d 1054 (1990), quoting In re Durant, 80 Conn. 140, 149-50, 67 A. 497 (1907). The defendant has not shown that the trial court’s predicate findings were clearly erroneous. We therefore decline to disturb the court’s conclusion that, viewed as a whole, the defendant’s conduct constituted professional misconduct.

IV

The defendant’s last claim is that DR 1-102 (A) (6) and DR 7-101 (A) (3) are unconstitutionally vague and violate the fourteenth amendment to the United States constitution. Disciplinary Rule 1-102 (A) (6) states: “A lawyer shall not . . . [ejngage in any other conduct that adversely reflects on his fitness to practice law.” Disciplinary Rule 7-101 (A) (3) states: “A lawyer shall not intentionally . . . [prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102 (B).” “ ‘It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.’ ” (Emphasis omitted.) Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982). The defendant argues that DR 1-102 (A) (6) does not articulate what constitutes conduct affecting a lawyer’s fitness to practice law and that DR 7-101 (A) (3) does not indicate what conduct would prejudice or damage the complainant.

“The fact that the meaning of the language is fairly debatable is not enough to satisfy the burden of proof [that a rule is unconstitutionally vague].” Bottone v. Westport, 209 Conn. 652, 658, 553 A.2d 576 (1989). “Lack of precision ... is not, in or of itself, offensive to the requirement of due process.” Seals v. Hickey, 186 Conn. 337, 344, 441 A.2d 604 (1982). Furthermore, “[l]awyers are chargeable for deviations from the codes governing their conduct, even though the application of the canons to particular circumstances may not be readily apparent. See Grievance Committee v. Rottner, 152 Conn. 59, 65-66, 203 A.2d 82 (1964).” Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 567, 577 A.2d 701 (1990). Furthermore, a challenge for vagueness is determined according to the particular facts at issue. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987). In the context of this case, we conclude that an attorney should be aware that failing to inform a client of outstanding disbursements and legal fees, arranging the terms of the purchase of a client’s real estate as a device to satisfy those fees, and discouraging another potential buyer is conduct that would “[prejudice ... his client” and would “adversely [reflect] on his fitness to practice law” within the meaning of DR 7-101 (A) (3) and DR 1-102. Under the circumstances here readily evident, the defendant has not met his heavy burden of proof that the disciplinary rules are so vague as not to alert him that his behavior constituted professional misconduct.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       The presentment alleged that the defendant had violated DR 1-102 (A) (4), (5) and (6), DR 5-104, and DR 7-101 (A) (3) of the Code of Professional Responsibility.
      DR 1-102 (A) provides in part: “A lawyer shall not . . .
      “(4) Engage in illegal conduct involving dishonesty, fraud, deceit, or misrepresentation.
      “(5) Engage in conduct that is prejudicial to the administration of justice.
      “(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
      DR 5-104 provides in part: “(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.”
      DR 7-101 (A) (3) provides: “A lawyer shall not intentionally . . .
      “(3) Prejudice or damage his client dining the course of the professional relationship, except as required under DR 7-102 (B).”

       General Statutes § 51-90g (c) provides in part: “The subcommittee shall conclude any hearing or hearings and shall render its proposed decision not later than ninety days from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The subcommittee may file a motion for extension of time not to exceed thirty days with the state-wide grievance committee which shall grant the motion only for good cause shown.”

       Code of Professional Responsibility DR 5-104, DR 1-102 (A) (6), and DR 7-101 (A), see footnote 1, supra.
      The trial court’s memorandum of decision referred to specific sections of the Code of Professional Responsibility. In a presentment for attorney misconduct, reference to specific sections of the Code of Professional Responsibility is not required. Because of its sui generis character, the reference to specific rules of professional conduct within the context of a presentment does not, unlike a criminal statute, constitute the only basis for a finding of guilt, but serves rather to assist the trial court in making its own conclusions as to whether, under the totality of the circumstances, professional misconduct has occurred. The Code of Professional Responsibility, in force at the time of the defendant’s purchase of the complainant’s home, did not attempt to define the full measure of behavior that would constitute misconduct. In its preamble it stated: “The Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer must find within his own conscience the touchstone against which to test the extent to which his actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of his profession and of the society which he serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.” (Emphasis added.) Similarly, the present Rules of Professional Conduct, effective October 1, 1986, state in their Preface: “The rules do not, however, exhaust the moral and ethical considerations that should inform . . . a lawyer [but] simply provide a framework for the ethical practice of law. ’ ’ Thus, “courts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice.” In re Peck, 88 Conn. 447, 457, 91 A. 274 (1914).


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Larry Tweedy
    (14103)
    Shea, Callahan, Glass, Covello and Borden, Js.

      Argued March 26
    decision released July 16, 1991

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom were James G. Clark, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Kathryn St. Amand, law student intern, for the appellee (state).
   Glass, J.

After a jury trial, the defendant, Larry Tweedy, was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), one count of burglary in the third degree in violation of General Statutes § 53a-103, and one count of sexual assault in the first degree in violation of General Statutes § 53a-70. The trial court sentenced the defendant to a total effective term of thirty-four years imprisonment, and this appeal followed.

On appeal, the defendant claims that: (1) the court improperly punished him twice for the same offense of first degree kidnapping in violation of the double jeopardy provisions of the federal constitution; (2) the court improperly punished him twice for the same offense of first degree robbery in violation of the double jeopardy provisions of the federal constitution; (3) the evidence of abduction within the meaning of General Statutes § 53a-91 was insufficient to sustain the jury’s verdict finding him guilty of the crime of first degree kidnapping in violation of § 53a-92 (a) (2) (A); (4) § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the facts supporting the defendant’s conviction of first degree kidnapping; (5) the court deprived the defendant of a fair trial by shackling him at trial; (6) the prosecutor’s pervasive misconduct impaired the defendant’s constitutional rights; and (7) the court improperly failed to deliver certain instructions to the jury. We affirm the judgment of conviction on all counts.

The jury could reasonably have found the following facts. At approximately 8 a.m. on October 2,1988, the victim, after purchasing a Sunday newspaper, returned to her apartment in New Haven. As the victim unlocked the outside door to the apartment building, the defendant came up behind her and asked if someone named Mike lived in the building. The victim replied that she did not know and entered the building. Realizing that the defendant had followed her into the building, the victim stepped aside and asked him to pass ahead in the hallway. The defendant refused to pass and ordered the victim to enter her apartment. When the victim threatened to scream, the defendant warned her that she should not because he had a gun. The victim then attempted to enter her apartment and lock the door, but the defendant wedged an arm and leg inside the door and forced his way into the apartment.

Once inside, the defendant stood close to the victim in the entryway of the apartment and demanded money. The victim gave him the bills and coins that were in her pocket, and, after the defendant threw the coins on the floor, she told him that she had more money in a desk in her bedroom. While the defendant followed close behind her, the victim walked through the living room, down the hallway and into the bedroom, where she gave the defendant the money located in her desk. The defendant then demanded valuables and took a camera from the victim. Upon the defendant’s insistence for more money, the victim, in an attempt to get him out of her apartment, told him that she could obtain money from an automatic teller machine (ATM) at a nearby bank. The defendant did not respond, but began to search the victim’s desk and closet for valuables.

At some point during the bedroom search, the defendant commanded the victim to undress and sit on her bed. The defendant thereafter ordered the victim to get up and show him where she kept her jewelry, and followed her as she crossed the room from the bed to her bureau. After taking a gold crucifix from the bureau drawer, the defendant roughly grabbed the victim’s breasts and demanded that she return to the bed and lie down. The defendant then ceased his search for valuables and approached the victim where she lay on her bed. The defendant reminded the victim not to scream because he had a gun and proceeded to engage in non-consensual sexual intercourse with her.

Afterward, the defendant ordered the victim to dress and told her that they were going to walk together to the bank where she would withdraw money from the ATM. Before they left the apartment, the defendant went into the bathroom and returned with his jacket wrapped around his hand. The defendant explained that his jacket concealed the gun, and told the victim that she should not scream or otherwise indicate that she was in danger during the walk to the bank because he had killed people before and was willing to kill her. The victim saw “something metallic” between the folds of the defendant’s jacket.

The victim then walked several blocks to the bank with the defendant following directly behind her. At the bank, the defendant instructed the victim to withdraw approximately $800 from the ATM. The victim withdrew $200, the daily withdrawal limit. The defendant removed that amount of money from the ATM and put it in his pocket. Thereafter, the defendant directed the victim to walk down an alley without looking back, and he left the area. The victim testified at the defendant’s subsequent trial that she had complied with his various demands in order to survive.

I

The defendant initially claims that the trial court, by convicting him of two counts of first degree kidnapping based on charges alleging his commission of offenses that arose out of the same transaction, punished him twice for the same offense in violation of the double jeopardy provisions of the federal constitution. In support of this claim, the defendant points out that his convictions for the offenses of first degree kidnapping under both subdivisions (A) and (B) of § 53a-92 (a) (2), respectively based on the third and fifth counts of the state’s substitute information, arose from a thirty minute transaction within the same city and involving the same victim. The state contends that even if the offenses were assumed to have arisen from the same transaction, the defendant’s double jeopardy claim nevertheless fails because the two kidnapping charges alleged violations of distinct statutory provisions, and therefore, the commission of separate offenses. Assuming that the offenses arose from the same transaction, we agree with the state.

As we approach the defendant’s claim, the only disputed question is whether the crimes of kidnapping in the first degree under subdivisions (A) and (B) of § 53a-92 (a) (2) are the same offense for purposes of double jeopardy. “The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” State v. Chicano, 216 Conn. 699, 706-707, 584 A.2d 425 (1990). Under the Blockburger test, “a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.” State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983); see State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). We determine whether each crime contains an element not found in the other by examining only the relevant statute, the information and the bill of particulars, and not the evidence presented at trial. State v. Greco, supra.

Our perusal of these materials in the present case discloses that the charged crimes of kidnapping in the first degree under subdivisions (A) and (B) of § 53a-92 (a) (2) are separate offenses for double jeopardy purposes. To convict the defendant of first degree kidnapping under subdivision (A) of the statute, the state had to prove, as alleged in the third count of the substitute information, that the defendant abducted the victim with a specific intent to violate or abuse her sexually. See State v. Palmer, 206 Conn. 40, 54, 536 A.2d 936 (1988). On the other hand, to convict the defendant of first degree kidnapping under subdivision (B) of § 53a-92 (a) (2), the state was required to establish, as alleged in the fifth count of the substitute information, that he abducted the victim with the specific intent to achieve the felonious objective of robbery. See State v. Wright, 197 Conn. 588, 591, 500 A.2d 547 (1985). The substitute information, therefore, alleged that the defendant committed two separate offenses of kidnapping in the first degree, each of which required proof of an element that the other did not. As a consequence, the trial court could properly punish the defendant for both crimes without offending the double jeopardy clause.

II

The defendant next argues that his two convictions of first degree robbery under § 53a-134 (a) (4) constituted multiple punishment for the same offense in violation of the double jeopardy clause of the federal constitution. The convictions were based upon the first and sixth counts of the substitute information, in which the state respectively alleged that the defendant had robbed the victim “at approximately 8:30 a.m. on October 2,1988, at [her apartment] in the City of New Haven,” and then had robbed her again “at approximately 9:00 a.m. on October 2, 1988 at 77 Broadway [her bank] in New Haven . . . .” According to the defendant, the events at the victim’s apartment and the bank were part of a continuing transaction during which he committed a single robbery. The separation of this transaction to form the basis of two robbery charges and convictions, the defendant maintains, contravenes the legislature’s intent that the unit of prosecution for the crime of robbery turn upon the number of victims intimidated by a defendant’s use or threatened use of force. Where, as here, a single victim is subjected to continuous intimidation by a defendant’s unceasing forcible conduct, the defendant claims that the legislature intended that such a course of conduct be punished as a single robbery. We disagree.

Double jeopardy prohibits multiple punishments for the same offense in the context of a single trial. Nonetheless, distinct repetitions of a prohibited act, “however closely they may follow each other”; Blockburger v. United States, supra, 302; may be punished as separate crimes without offending the double jeopardy clause. State v. Snook, 210 Conn. 244, 262, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); see State v. Eason, 192 Conn. 37, 46-47, 470 A.2d 688 (1984); see also United States v. Hawkins, 794 F.2d 589, 590 (11th Cir. 1986). “The same transaction,” in other words, “may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.” Robinson v. United States, 143 F.2d 276, 277 (10th Cir. 1944), approved in Bell v. United States, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955). “[T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute].” Morgan v. Devine, 237 U.S. 632, 640, 35 S. Ct. 712, 59 L. Ed. 1153 (1915); accord United States v. Melton, 763 F.2d 401, 402 (11th Cir. 1985); United States v. Shaid, 730 F.2d 225, 226 (5th Cir. 1984).

General Statutes § 53a-133, which defines robbery, provides that a defendant “commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” As the defendant points out, we have identified the distinguishing feature of robbery as “the intimidation of the victim”; State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978); and further, we have construed the singular term “another person” in § 53a-133 to evince the legislative purpose that a spatially indistinct robbery of two individuals be punishable as two separate offenses of robbery. See State v. Lytell, 206 Conn. 657, 666-67, 539 A.2d 133 (1988). We do not share, however, the defendant’s perception that the legislature intended that robbery constitute an offense continuing for the period during which a defendant’s forcible conduct intimidates a single victim.

The plain terms of § 53a-133 indicate a contrary intent. Specifically, the statute provides that a criminal defendant “commits robbery when, in the course of committing a larceny,” the defendant engages in forcible conduct with a proscribed purpose. The legislature thus expressly designated “the course of committing a larceny,” rather than the course of forcible conduct, as the time frame for completion of the offense of robbery. See State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). A consistent expression of legislative purpose is found in the commentary to our penal code, in which the drafters of the provision now codified as § 53a-133 describe the offense of robbery as “a larceny accompanied by force or threat.” Commentary, Commission to Revise the Criminal Statutes (1969) p. 64. Consequently, we conclude that the legislature intended § 53a-133 to authorize a punishment for robbery each time a criminal defendant with the requisite intent engages in forcible conduct against another person “in the course of committing a larceny,” irrespective of whether such conduct is unceasingly directed toward a single victim. “A different view would allow a person who has committed one [robbery] upon a victim to commit with impunity many other such acts during the same encounter.” State v. Frazier, 185 Conn. 211, 229, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

In the present case, the defendant committed two completed and hence separately punishable offenses of robbery as defined by § 53a-133. The defendant first committed a completed offense of robbery by threatening to shoot the victim with the requisite purpose “in the course of committing a larceny” at 8 a.m. within her apartment. The defendant then committed a second completed offense of robbery by threatening to shoot the victim with the requisite purpose “in the course of committing a larceny” at 9 a.m. at the bank located several blocks from her apartment. The offenses were committed at different times, locations and under different circumstances, and were also separated by an intervening act of sexual assault. Because the defendant committed two separate and distinct robberies, the trial court was authorized by § 53a-133 to punish him separately for each offense under § 53a-134 (a) (4).

Ill

The defendant next claims that the evidence of abduction within the meaning of § 53a-91 (2) was insufficient to support the jury’s verdict finding him guilty of the crime of first degree kidnapping in violation of § 53a-92 (a) (2) (A). This kidnapping conviction was based on the third count of the substitute information, in which the state alleged that “at approximately 8:30 a.m. on October 2, 1988, at [the victim’s apartment] in New Haven, [the defendant] abducted [the victim], and restrained her with the intent to violate her or abuse her sexually” in violation of the statute. In the defendant’s view, there is “simply no evidence” from which the jury could have inferred that he had possessed the “intent to prevent [the victim’s] liberation.” General Statutes § 53a-91 (2). We are unpersuaded.

Appellate analysis of an insufficiency of the evidence claim necessitates the undertaking of a twofold task. We first review the evidence in the light most favorable to sustaining the guilty verdict. State v. Marra, 215 Conn. 716, 726, 579 A.2d 9 (1990). We then determine whether any rational trier of fact could have concluded, upon the facts thus established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. King, 216 Conn. 585, 600, 583 A.2d 896 (1990). In this analysis, it does not diminish the probative force of the evidence that any part of it is circumstantial rather than direct evidence. Id., 602; State v. Marra, supra. “ ‘Intent is a mental process which ordinarily can be proven only by circumstantial evidence.’ ” State v. Just, 185 Conn. 339, 355, 441 A.2d 98 (1981).

Considering the evidence in the present case in the light most favorable to sustaining the verdict, we conclude that the jury could reasonably have determined that the evidence cumulatively established beyond a reasonable doubt that the defendant intended “to prevent [the victim’s] liberation by . . . using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2) (b). The evidence showed, for example, that the defendant initially thwarted the victim’s attempt to lock him out of her apartment by forcing his way inside. The defendant also told the victim that he had a gun that he would use if she screamed, and the victim saw what she thought was a gun on his person. See State v. Paolella, 211 Conn. 672, 679, 561 A.2d 111 (1989); State v. Bell, 188 Conn. 406, 416, 450 A.2d 356 (1982). When the victim left her bed, where the defendant previously had commanded her to undress and remain, he roughly grabbed her breasts and demanded that she return to the bed and lie down. See State v. Paolella, supra; State v. Bell, supra; State v. Lee, 177 Conn. 335, 344, 417 A.2d 354 (1979). The victim, in order to survive, complied with the defendant’s demands. See State v. Bell, supra. In view of this evidence, we cannot say that there was an insufficient factual basis for the jury to conclude rationally that the defendant possessed the requisite intent to abduct the victim under §§ 53a-91 (2) and 53a-92 (a) (2) (A).

IY

The defendant next claims that § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the facts supporting his conviction of first degree kidnapping. As previously noted, the conviction arose from the events that took place at the victim’s apartment. The defendant asserts that the impermissibly vague aspect of § 53a-92 (a) (2) (A) is its “restraint” element, particularly, that portion of the statutory definition of “restrain” applicable under the statute where a defendant is alleged, as in the present case, to have moved his victim “from one place to another.” General Statutes § 53a-91 (1). According to the defendant, applying the “movement” requirement to the facts pertaining to the apartment kidnapping, which he characterizes as presenting “a scenario of truly minimal movement, such as from the desk to the bed within a bedroom,” produces an absurd and unconscionable result. We do not agree.

“Due process requires that laws ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited’ and ‘provide explicit standards for those who apply them’ in order to prevent the risk of arbitrary and discriminatory enforcement.” Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 591, 590 A.2d 447 (1991). In a case such as this, where first amendment freedoms are not implicated, “a claim that a statute is void for vagueness is determined by its applicability to the particular facts presented.” State v. Smith, 210 Conn. 132, 144, 554 A.2d 713 (1989). The fact that “ ‘a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue.’ ” Id.

While we recognize that there are conceivable “factual situations in which charging a defendant with kidnapping based upon the most minuscule movement would result in an ‘absurd and unconscionable’ result”; State v. Jones, 215 Conn. 173, 180, 575 A.2d 216 (1990); we do not find this case to present such a situation. Contrary to the defendant’s proposed “desk to bed” scenario, the facts of this case demonstrate that the defendant moved the victim between various locations within her apartment. See State v. Lee, supra (defendant moved victim “from stairway back to his bedroom”). Prior to the “desk to bed” movement, the defendant, after forcing his way into the victim’s apartment, moved the victim from the entryway of her apartment through the living room and down the hallway to the desk in her bedroom. The “desk to bed” movement identified by the defendant then occurred. Thereafter, the defendant moved the victim, by ordering her to move, from the bed to her bureau. The defendant then moved the victim from the bureau back to her bed. The totality of these movements formed the basis of the state’s charge, and the defendant’s conviction, of kidnapping with the intent to “violate or abuse [the victim] sexually” at her apartment. General Statutes § 53a-92 (a) (2) (A).

Upon these facts, it can hardly be disputed that the defendant moved the victim from one place to another, the conduct proscribed by §§ 53a-91 (1) and 53a-92 (a) (2) (A). Section 53a-92 (a) (2) (A), therefore, is not unconstitutionally vague as applied to the defendant’s conduct. The defendant cannot make it so by presenting us with a factual scenario that does not accurately reflect what transpired in connection with the apartment kidnapping.

V

The defendant next challenges the court’s decision to shackle him at trial. On the second day of trial, the court informed the defendant out of the presence of the jury that he would be restrained in leg irons for the remainder of the trial. The reason for the restraints, the court stated, was that it had “the right to determine the need for physical restraints based upon reliable information received from law enforcement officers or correctional officers.” The court also explained that the courthouse sheriffs had “received information to the effect” that, with the court’s approval, shackles should be employed. In response to the defendant’s demand “to know where the sheriff’s department got that information from,” the court stated that it would “not divulge anything further,” and that it did not know the source of the sheriffs’ information. The court then refused the defendant’s request to know “the reason for all this,” and his request for removal of the restraints. At the court’s direction, however, both counsel tables were covered with brown paper to prevent the jury from observing the defendant’s restraints and to eliminate any suspicion that might occur if only defense counsel’s table were covered. Thereafter, the court excused the jury while the defendant was brought to and from the courtroom in restraints. The court permitted the defendant to testify unrestrained.

The defendant asserts that the record does not establish the existence of a reasonable necessity to support the court’s decision to shackle him. This deficiency in the record, the defendant claims, together with the prejudice allegedly resulting from the use of the shackles, deprived him of a fair trial. Although we find the record inadequate to demonstrate a reasonable necessity for shackling the defendant, we agree with the state that the precautionary measures taken by the court so minimized the potential prejudicial effect of the shackles that any impropriety in the court’s decision to employ them was harmless. State v. Woolcock, 201 Conn. 605, 615, 518 A.2d 1377 (1986).

“ ‘As a general proposition, a criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant’s innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtroom.’ (Citations omitted.) State v. Williams, 195 Conn. 1, 5-6, 485 A.2d 570 (1985). ‘The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.’ Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976).” Sekou v. Warden, 216 Conn. 678, 691, 583 A.2d 1277 (1990). Nonetheless, a defendant’s right to appear before the jury unfettered is not absolute. State v. Woolcock, supra, 613. A trial court may employ a “reasonable means of restraint” upon a defendant if, exercising its broad discretion in such matters, the court finds that restraints are “reasonably necessary” under the circumstances. Practice Book § 892; see Sekou v. Warden, supra, 692.

In reviewing a shackling claim, our task is to determine whether the court’s decision to employ restraints constituted a clear abuse of discretion. Sekou v. Warden, supra. While appellate review is greatly aided when a court develops the record by conducting an evidentiary hearing concerning the necessity for restraints, “such a hearing is not mandatory.” Id. A record in some fashion disclosing the justification for using restraints, however, is essential to meaningful appellate review of a shackling claim. Id.; State v. Woolcock, supra, 614; State v. Williams, supra, 8. “This is particularly so because of the potential for prejudice in the use of shackles.” State v. Woolcock, supra. Accordingly, a trial court must ensure that its reasons for ordering the use of restraints “are detailed in the record.” Sekou v. Warden, supra.

In the present case, the record discloses that the court restrained the defendant because it had received from the sheriffs “reliable” information “to the effect” that such a course of action should be taken. That information, alone, may well have provided the court with a sound basis for determining that shackles were reasonably necessary. See State v. Williams, supra, 7. In view of the fact that the law enforcement personnel at our courthouses are responsible for and possess superior experience in matters of courtroom security, it is practicable for a court to “ ‘rely heavily’ ” upon the advice of such personnel in determining whether a criminal defendant should be restrained. Sekou v. Warden, supra, 693; see State v. Williams, supra, 9; see also United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970), cert. denied, 401 U.S. 946, 91 S. Ct. 964, 28 L. Ed. 2d 229 (1971). A court may also consider other information not in evidence, including official records, information supplied by correctional officers and attorneys, and “facts generally known within the limits of its jurisdiction.” State v. Woolcock, supra, 616; see State v. Williams, supra. “Such information or knowledge, however, should be placed on the record outside the presence of the jury and the defendant given the opportunity to respond to that information.” State v. Woolcock, supra.

By falling to divulge the information prompting its decision to restrain the defendant, the court not only denied the defendant a meaningful opportunity to respond to that information, but also rendered the record inadequate for our review of its decision to restrain him. The record, moreover, does not otherwise evince the requisite reasonable necessity for restraints. Compare Sekou v. Warden, supra, 692. Nonetheless, however improper the court’s failure to specify the information on which it relied, there is no evidence in the record that the jury saw or otherwise knew of the defendant’s restraints. See State v. Woolcock, supra. The court took particular pains to conceal the defendant’s shackles and to neutralize possible suspicion by ensuring that both counsel tables were covered with paper, excusing the jury while the defendant was brought to and from the courtroom, and permitting the defendant to testify unrestrained. See Sekou v. Warden, supra, 693-94; State v. Williams, supra, 9-10. Furthermore, the defendant did not claim at trial, nor is there any evidence to suggest, that the shackles inhibited his ability to communicate with his attorney. See State v. Woolcock, supra.

In order for a criminal defendant to enjoy the maximum benefit of the presumption of innocence, our courts should make every reasonable effort to present the defendant before the jury in a manner that does not suggest, expressly or impliedly, that he or she is a dangerous character whose guilt is a foregone conclusion. State v. Woolcock, supra, 612-13; see Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982). There is no doubt that “ ‘the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.’ ” Holbrook v. Flynn, 475 U.S. 560, 568, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986). The negative connotations of restraints, nevertheless, are without significance unless the fact of the restraints comes to the attention of the jury. As the present record is devoid of competent evidence that the jury was aware of the defendant’s shackles at any time during his trial, it is clear beyond a reasonable doubt that the presumption of innocence was not abridged by the court’s decision to shackle him. See State v. Woolcock, supra, 615-16; see also State v. McMurtrey, 136 Ariz. 93, 98, 664 P.2d 637 (1983), and authorities cited therein. Rather than depriving the defendant of a fair trial, therefore, any impropriety in that decision was, under the circumstances, harmless. See State v. Woolcock, supra, 615.

VI

The defendant next claims that the prosecutor’s misconduct, while cross-examining him at trial and during the state’s rebuttal argument, violated his federal and state constitutional rights to a fair trial, to an impartial jury and to confront the witnesses against him. Conceding his failure to preserve this claim, the defendant, relying upon State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), seeks review of the claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant alternatively asserts that the claim is reviewable as plain error under Practice Book § 4185. We are not persuaded.

In State v. Williams, supra, 204 Conn. 536, we found an unpreserved prosecutorial misconduct claim “reviewable under the second exceptional circumstance of State v. Evans, supra, because the defendant [had] raised a claim, adequately supported by the record, that he clearly [had] been deprived of a fundamental constitutional right and a fair trial.” We pointed out, however, that “[i]n the cases in which we have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. Moreover, the misconduct was not blatantly egregious.” Id., 537. Our careful review of the record in this case reveals that the prosecutor’s challenged conduct, while improper in certain instances, was “unrepresentative of a pattern of conduct repeated throughout the trial.” State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). Similarly, we do not find, as is necessary to merit plain error review, that those limited instances of improper conduct so pervaded the defendant’s trial as to have impaired the effectiveness or integrity of the judicial process. State v. Foreshaw, 214 Conn. 540, 547, 572 A.2d 1006 (1990). We, therefore, decline to review the defendant’s unpreserved prosecutorial misconduct claim.

VII

Finally, the defendant challenges three omissions in the court’s instructions to the jury. He argues that the court deprived him of due process by failing to give adequate instructions on: (1) the essential element of intent permanently to deprive another of property as required for conviction of the crime of robbery in violation of § 53a-134 (a) (4); (2) the essential element of compulsion required for conviction of the crime of sexual assault in violation of § 53a-70 (a); and (3) the statutory definition of. “intentionally” in General Statutes § 53a-3 (11) with respect to the essential element of intent required for conviction of several of the charged crimes. In light of his failure to preserve any of these claims by submitting requests to charge on the matters now claimed improperly omitted or taking appropriate exceptions at the close of the court’s instructions; see Practice Book § 852; the defendant seeks review of the claims under State v. Golding, supra.

We agree with the defendant that “the record is adequate to review” all of his claims; id., 239; and thus he has satisfied the first Golding condition. We also agree that each of the defendant’s claims, in that they pertain to essential elements of the crimes charged, are “of constitutional magnitude alleging the violation of a fundamental right” in satisfaction of the second Golding condition. Id.; see State v. Allen, 216 Conn. 367, 383, 579 A.2d 1066 (1990). Nonetheless, after a painstaking review of the court’s charge as a whole, we conclude that none of the challenged omissions in the court’s instructions could possibly have misled the jury. See State v. Anderson, 212 Conn. 31, 38, 561 A.2d 897 (1989). The defendant has therefore failed to satisfy the third Golding condition by demonstrating that any of the alleged constitutional violations “clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 240. Necessarily, then, all of the defendant’s claims fail. Id.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (4) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree: class A felony, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony

       See footnote 2, supra.

       “[General Statutes] Sec. 53a-103. burglary in the third degree: class d felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes (Rev. to 1987) § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       “[General Statutes] See. 53a-91. definitions.
      “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent.
      “(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.”

       Despite the defendant’s conceded failure to preserve this claim at trial, we review the claim because it is “a claim of double jeopardy based on multiple punishments for convictions obtained at a single trial.” State v. Ruscoe, 212 Conn. 223, 256, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); see State v. Snook, 210 Conn. 244, 263-64, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

       In the third count of the substitute information, the state alleged that “at approximately 8:30 a.m. on October 2,1988, at [the victim’s apartment] in New Haven, [the defendant] abducted [the victim], and restrained her with the intent to violate or abuse her sexually, in violation of General Statutes § 53a-92 (a) (2) (A).”
      In the fifth count of the substitute information, the state alleged that “at approximately 9:00 a.m. on October 2,1988, at various locations between [the victim’s apartment] and 77 Broadway in New Haven, [the defendant] abducted [the victim] and restrained her with the intent to accomplish or advance the commission of a felony, robbery, in violation of General Statutes § 53a-92 (a) (2) (B).”

       We review the defendant’s double jeopardy claim, which he did not preserve at trial, because it concerns multiple punishments for convictions obtained at a single trial. See footnote 7, supra.

       The drafters of the Model Penal Code of the American Law Institute comment that the similar phrase “in the course of committing a theft” in Model Penal Code § 222.1, which defines robbery, describes the time span of the larcenous conduct during which the specified injuries or threats will constitute a robbery. There are three successive stages: “an attempt to commit a theft, the theft itself, and the flight after the attempt or the theft.” Model Penal Code § 222.1, comment 4 (a). “Thus, a robbery is committed if [the requisite injurious or threatening conduct and mental state] exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission.” Id., comment 2.

       Notwithstanding the defendant’s failure to preserve this claim at trial, we review the claim “because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988); see State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990).

       Since the facts of the present case do not solely involve movement of the victim from the desk to her bed, we do not consider whether a kidnapping conviction based on movement of this nature “would result in an ‘absurd and unconscionable’ result.” State v. Jones, 215 Conn. 173, 180, 575 A.2d 216 (1990).

       “[Practice Book] Sec. 892. —removal and restraint
      “Upon the direction of the judicial authority, a defendant may be removed from the courtroom during his trial when his conduct has become so disruptive that the trial court cannot proceed in an orderly manner. Reasonable means of restraint may be employed if the judicial authority finds such restraint reasonably necessary to maintain order. If the judicial authority orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant occurs in the presence of jurors trying the case, or whenever the defendant is removed, the judicial authority shall instruct the jurors that such restraint or removal is not to be considered in assessing the evidence or in determining guilt or innocence.”

       Although defense counsel claimed at trial that the defendant’s restraints were visible from the jury box, he did not create a record to substantiate that claim by making an appropriate offer of proof. See State v. Williams, 195 Conn. 1, 10, 485 A.2d 570 (1985).

       The defendant asserts that the prosecutor improperly expressed personal opinions, vilified the defendant’s character, and misdirected the jury by insinuating that the resolution of the issues at trial turned upon who, as between the defendant and the state’s witnesses, had told the truth.

       The defendant also contends that under State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984), an unpreserved prosecutorial misconduct claim is reviewable if the prosecutor deliberately disregarded “established rules of fair play.” Simply stated, Fullwood, which involved a preserved prosecutorial misconduct claim, provides no authority for this contention.

       The defendant also claims for the first time on appeal that he was deprived of a fair trial by the court’s failure to deliver a curative instruction with regard to the prosecutor’s statement during closing argument that any “no” answer given by a witness could not be treated as evidence. Unlike the defendant’s other unpreserved claims, this claim is of evidentiary, rather than constitutional, significance. See, e.g., State v. Smith, 219 Conn. 160, 165-66, 592 A.2d 382 (1991). We, therefore, decline to review the claim because the defendant has not satisfied the second condition of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
      As for the defendant’s unpreserved claim that the court’s instructions improperly erased the distinction between restraint and abduction under General Statutes § 53a-91 (1) and (2), we do not reach its merits due to inadequate briefing.


text:
    Laurine H. Ghent v. Planning Commission of the City of Waterbury et al.
    (14195)
    Peters, C. J., Callahan, Covello, Borden and F. X. Hennessy, Js.

      Argued May 2
    decision released July 16, 1991

      I. Milton Widem, with whom were Emily N. Roisman and, on the brief, Melanie P. O’Brien, for the appellants (defendant Vincent B. LoRusso, Sr., et al.).

      Robert E. Ghent, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a judgment of the Superior Court sustaining the plaintiffs appeal from a decision of the planning commission of the city of Waterbury (commission). The issues presented are: (1) in an appeal from a planning action, does the failure of the planning commission to return a transcript of its proceedings to court deprive the court of subject matter jurisdiction; (2) are the commission’s regulations authorizing dead-end streets when through streets are “impractical” so lacking in precision that they furnish an inadequate standard by which to guide the commission and the public; and (3) does the phrase in the commission’s regulations that “Waivers may be granted in accordance with Section 8-26 of the [G]eneral [Statutes” provide a legally adequate description of the circumstances under which the commission may waive the requirements of its own regulations. We conclude that: (1) the failure to return the transcript to the trial court does not deprive the trial court of subject matter jurisdiction; (2) the use of the word “impractical,” without more, does not furnish an adequate standard for determining when dead-end streets shall be permitted; and (3) the commission’s waiver procedure, by simply referring to General Statutes § 8-26, does not contain adequate standards to determine under what conditions a waiver may be granted. We therefore affirm the judgment of the trial court that sustained the plaintiff’s appeal.

The record discloses that on October 19, 1988, the defendants Vincent B. LoRusso, Sr., and Bartholomew LoRusso, Jr., filed an application for approval of a subdivision plan with the commission. The proposed subdivision included a 1295.65 foot long dead-end street. Section 5.6 of the commission’s subdivision regulations provided: “Dead-end streets will be approved . . . only when the Commission feels that the extension of the street is impractical. Streets designed to have one end permanently closed shall not exceed 750 feet in length .... Dead-end streets longer than 750 feet are not permitted unless prior approval is given by the . . . Commission.”

The commission voted to approve conditionally the proposed subdivision and published the required notice of its action. On December 7,1988, the plaintiff, Lauriñe H. Ghent, an owner of property abutting the proposed subdivision, appealed to the Superior Court pursuant to General Statutes § 8-8.

The trial court concluded that a waiver of the commission’s regulations was required in order to approve a dead-end street longer than 750 feet as such streets were not permitted under the commission’s regulations. The trial court further concluded that the regulations were silent as to the conditions under which a waiver of the dead-end street prohibition might be granted. This being the case, the trial court concluded that the waiver provisions of the commission’s regulations lacked the specificity required by General Statutes § 8-26 and, therefore, rendered judgment sustaining the appeal. The defendants appealed to the Appellate court. We transferred the matter to ourselves pursuant to Practice Book § 4023 and now affirm.

I

The defendants first claim that the trial court was without jurisdiction to hear the appeal because the administrative record was incomplete. Specifically, the defendants argue that the commission’s failure to file in court a transcript of the public hearing before the commission in connection with the subdivision application deprived the court of subject matter jurisdiction.

General Statutes (Rev. to 1987) § 8-8 (c) states: “[The] board shall be required to return either the original papers acted upon by it and constituting the record of the case appealed from, or certified copies thereof and a copy of the transcript . . . .” (Emphasis added.) The defendants argue that an appeal to the court from an administrative agency exists only under statutory authority, that strict compliance with the statutory provisions is required, and that failure to comply renders the appeal subject to dismissal. Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 152, 584 A.2d 1183 (1991). Because the commission failed to include the required transcript, the defendants argue that the court lacked jurisdiction to consider the appeal.

Section 8-8 nowhere states that failure to provide a complete record constitutes a jurisdictional defect. We are constrained to read a statute as written; Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); and we may not “ ‘read into clearly expressed legislation provisions which do not find expression in its words . . . .’ ” International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974). Further, § 8-8 (e) specifically states: “The court . . . shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it pursuant to section 8-7a . . . .” (Emphasis added.) Because § 8-8 specifically provides for an evidentiary procedure to supplement the record in the event a complete transcript of the proceedings before the board is unavailable, it is scarcely arguable that the failure to provide the required transcript in the first instance constitutes a jurisdictional defect. If the trial court lacked subject matter jurisdiction of the appeal, it would be without authority to conduct the evidentiary hearing called for by the statute. We conclude that the absence of a complete record did not divest the trial court of jurisdiction to entertain the appeal.

II

The defendants next claim that the standards in the planning regulations, taken as a whole, are sufficiently precise to permit the commission to approve subdivision plans that include dead-end streets. Section 5.6 of the planning regulations provides: “Dead-end streets will be approved by the Commission only when the Commission feels that the extension of the street is impractical.” (Emphasis added.) The defendants argue that the regulations, viewed as a whole, impose an “impracticality” standard on the decisions of the commission. Thus, a dead-end street is permissible only if the alternatives are “impractical.” Furthermore, §1.1 of the regulations states that the commission must consider plans that will result in “the best possible urban environment” and “promote the health, safety, or general welfare.” The defendants further claim that it is unrealistic to demand detailed and complex standards in these circumstances and that every intendment must be made in favor of the validity of a regulation. Thus, the defendants argue that the regulations, construed as a whole, offer sufficient guidance for the commission. We disagree.

“Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid.” Sonn v. Planning Commission, 172 Conn. 156, 162, 374 A.2d 159 (1976). “The subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature, and must conform to the principle that a regulation, like a statute, cannot be too general in its terms. Aunt Hack Ridge Estates, Inc. v. Planning Commission, [160 Conn. 109, 115-16, 273 A.2d 880 (1970)]. The test of a permissible subdivision regulation is whether ‘the criteria contained in the commission’s regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations. American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105, 67 S. Ct. 133, 91 L. Ed. 103 [1970]; Ours Properties, Inc. v. Ley, 198 Va. 848, 851, 96 S.E.2d 754 [1957]; 1 Am. Jur. 2d, Administrative Law, § 118. Although some of the standards may be general in their terms, they . . . [must be] reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases. Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 [1965].’ Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 680, 236 A.2d 917 [1967]; Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93, 368 A.2d 24 [1976].” Sonn v. Planning Commission, supra, 159-60. The regulations in this instance do not meet these standards.

In Sonn v. Planning Commission, supra, we considered the language of an allegedly ambiguous subdivision regulation and stated: “[T]he words ‘practical difficulties,’ without additional guidelines, are in themselves insufficient to afford a guide to determine where a variation should be granted. . . . The facts show clearly the need for a more precise standard governing [this] unbridled, ambiguous and vague exception . . . .” Id., 160. We view the word “impractical,” as used in § 5.6, in the same light as “practical difficulties,” i.e., as being so vague and imprecise that neither the commission nor the public is fairly apprised of the circumstances under which a dead-end street would be permitted.

This, however, does not end the discussion of the issue, as it is unclear whether the “impractical” standard controls the situation that confronted the commission here. Section 5.6 goes on to state: “Dead-end streets longer than 750 feet are not permitted unless prior approval is given by the City Plan Commission.” (Emphasis added.) The regulation is silent as to the circumstances under which the commission’s “prior approval” may be obtained for the 1295.65 foot long street that was depicted in the defendants’ proposed subdivision plan.

Confronted with this apparent anomaly in the construction of § 5.6, the trial court correctly reasoned that the undefined “prior approval” described in § 5.6 was the functional equivalent of a waiver of the commission’s regulations, a procedure that was specifically authorized by § 8.6 of the commission’s regulations. Section 8.6, however, provides no solution to the standardless language of § 5.6, because it states: “Waivers may be granted in accordance with Section 8-26 of the [GJeneral [SJtatutes.” General Statutes § 8-26 while authorizing waivers, specifically requires: “[T]he regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety.” Thus, § 8-26 does not, in any particularized fashion, illuminate the general authority to issue waivers set forth in § 8.6 of the commission’s regulations. We agree, therefore, with the trial court’s conclusion that the commission’s regulations “are totally void of standards to measure the conditions under which a waiver of the dead-end road length limitation would be appropriate.”

The judgment is affirmed.

In this opinion the other justices concurred.

       The commission’s minutes of its November 14,1988 meeting reflect the following: “VOTED: That the City Plan Commission conditionally approves of the Subdivision Map of Tanglewood Estates, Purdy Road, Waterbury, Ct., Dated: 10/06/88, Scale: 1"=40', consisting of thirty (30) Lots, R.S. Zone, Meyers Associates, Surveyors, Waterbury, CT., Owner/Applicant: Vincent B. LoRusso, Sr. and Bartholomew LoRusso, Jr., 109 Nichols Drive, Waterbury, CT., subject to approval by the Health Department concerning on-site sewage facilities, approval by the Bureau of Engineering, the receipt of a Performance Bond to cover the cost of street improvements and the waiver of the cul-de-sac street which is longer than seven hundred and fifty (750) feet. This Subdivision is also subject to associated fees relating to this development.”

       General Statutes (Rev. to 1987) § 8-8 (a) provides: “Any person . . . aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board . . . may . . . take an appeal to the superior court for the judicial district in which such municipality is located . . . .”

       General Statutes § 8-26 provides in relevant part: “Such regulations may contain provisions whereby the commission may waive certain requirements under the regulations ... in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered (Emphasis added.)

       We note further that while General Statutes (Rev. to 1987) § 8-8 (c) states that the record “shall” be transmitted to the court, we have held that in the interpretation of statutes the word “shall” may have a meaning that is directory rather than mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278-79, 492 A.2d 180 (1985). “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). ‘Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.’ Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).” Fidelity Trust Co. v. BVD Associates, supra, 278.
      Section 8-8 (c) clearly is designed to encourage order and dispatch in proceedings. This section is cast in affirmative words, contains no penalty for noncompliance and purports only to establish a procedure for ensuring that the trial court is provided as full a record as possible. We conclude therefore that its terms are directory, and not mandatory, and that failure to meet its requirements does not deprive the court of jurisdiction. Under the circumstances of this case, in which neither party informed the trial court of the absence of the transcript and because the underlying facts are undisputed, we conclude that the purpose of § 8-8 has been met and that dismissal of the case at this point is unwarranted.