author: Arthur H. Healey, J.

text:
    State of Connecticut v. Tobias Anderson
    (13303)
    Peters, C. J., Healey, Callahan, Co vello and Santaniello, Js.

      Argued December 14, 1988
    decision released April 25, 1989

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Dennis O’Connor, assistant state’s attorney, and Mary H. Lesser, deputy assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The jury reasonably could have found the following facts. At approximately 12:15 a.m. on November 19, 1985, the victim, L, was working as the assistant manager at a convenience store in Bloomfield. After closing the store at that time, L walked to her car that was parked in front of the store. As she approached the car, she noticed that the door was unlocked. L “thought [that] was weird” because she always locked the car. L looked in the back seat of the car and, noticing nothing unusual, began to enter the car. At that point, she heard a noise, turned around and was confronted by a black male in his early to mid-twenties, about five feet ten or eleven inches tall, of medium build, clean shaven, with a short Afro, wearing a dark, thick jacket, and dark pants. The man appeared to be wearing long gloves and he brandished a knife in his right hand. L believed that the man intended to steal her car so she offered her keys and pleaded to be left alone. The abductor, however, with the knife poised at L’s neck, demanded that she get in the front seat of the car on the passenger’s side, sit on the floor, and put her head on the passenger’s seat and cover her head with her arms.

The man began to drive the car and L hysterically begged for her release so she could go home to her baby. The abductor told her to shut up and she would not be hurt. During a ten minute ride, L occasionally raised her head and looked at the man and out of the window, but he insisted that she keep her head down. Because L was not familiar with Bloomfield, she had no idea where she was.

The abductor stopped the car in a field. L noticed woods on the right side and a building with bright spotlights in the distance. L and the man exited the car and walked to the front of it; the man was still wielding his knife. The man ordered L to take off her pants, but she refused. He then shoved her against the car and told her to do as he said and she would not get hurt. L slowly removed her pants trying to stall and the assailant again pushed her against the car. After removing his pants and underwear, and with his knife still in his hand, the man pushed L onto the hood of the car, got on top of her, and engaged in vaginal intercourse. After L’s repeated begging for the man to put his knife down, the assailant put the knife down on the hood out of L’s reach, and then he lifted up L’s shirt and bra and touched her breasts. This episode lasted about ten minutes and during this time L again had occasion to see the man’s face.

The assailant then forced L to turn over on the hood and he engaged in vaginal intercourse from behind. L did not remember exactly how long this lasted, but testified that this act lasted less time than the first. During this act of intercourse, the man said that he wanted to engage in anal intercourse. L testified concerning this episode as follows: “He said something like this wouldn’t work or something. He wanted to do it anally. And I said no.” Upon her refusal, according to L’s testimony, he said: “It was either that or I give him head.” L responded that she did not want him to enter her anally because it would hurt too much, so he made her perform fellatio on him. He again had the knife in his hand.

While L was performing fellatio, the assailant again said that “it wouldn’t work.” He then made her get on her back on the ground and he once again engaged in vaginal intercourse. During this act of intercourse, which lasted approximately twenty minutes, the man put down the knife and sucked on his right thumb. After this act of intercourse, the man then forced her onto her hands and knees and he again engaged in vaginal intercourse from behind. After about ten minutes, he ejaculated.

The two then got dressed, but L could not find her underwear so she just put on her pants. L pleaded for her release and told the man that he could have her money. With his knife in hand, he took forty dollars from her. They both got back into the car and L resumed her position on the floor of the passenger’s side. He again proceeded to drive.

Shortly thereafter, the man stopped the car and demanded more oral sex. L refused, but he pushed her head down and made her perform fellatio. Finally, L told him that she could not do it anymore and that she did not care if he killed her because she believed that he was going to do that anyway. They drove for about ten more minutes and again stopped. The man told L to count to ten, during which time he would leave. He also told her that if she took a left from where they were parked, she would know where she was. The assailant exited the car and L quickly locked the door behind him.

After her asssailant left, L drove until she came upon two police cruisers parked behind a building. L told the officers that she had been raped and provided them with some information. Officer Robert Black of the Bloomfield police department then took L to Mount Sinai Hospital. The physician who examined her at that time testified that the victim said that “she had been forcibly entered vaginally, orally and attempted rectally.” Later in the day on November 19, L gave a statement to Detective Peter Crombie at the Bloomfield police department.

On November 20, 1985, L accompanied Crombie to four or five fields. She recognized one of them and Crombie found her underwear there. On November 21, 1985, L met with Crombie at the Bloomfield police station and looked at a photographic array but did not select any photograph as that of her assailant. L also assisted a police artist in making a sketch of her attacker.

After another unsuccessful attempt to identify her assailant from among photographs at the police station, on November 29, Crombie and Detective Richard Cousins went to L’s house with nine photographs. L identified one of the photographs, which was of the defendant, as that of her assailant and she signed the back of it. L again gave a statement to Crombie after she identified the photograph. At trial, L identified the defendant as her assailant.

At trial, Crombie testified about his questioning of the defendant on November 27 at about 9 a.m., indicating that during their discussion, “[a]ll of a sudden [the defendant] just came out with ‘it just happened.’ ” Upon further inquiry by Crombie, the defendant described his assault of a woman at about midnight on November 18-19 at a convenience store in Bloomfield. Crombie testified that the defendant stated that he had “tried to enter her anally,” but she said that she did not want to and he then gave her a choice between anal and oral sex. Crombie also testified that the defendant admitted to sucking his thumb when he was nervous and he told Crombie that he was not wearing gloves during the assault but that he had dress socks over his hands.

In his defense, the defendant offered the testimony of a friend and the friend’s mother who testified that the defendant was working on a car at the friend’s house until 11 p.m. on November 18. A work associate testified that he spoke with the defendant on the telephone for about ten minutes at 11:30 p.m. on November 18 and that the defendant appeared normal when he arrived at work at 8 a.m. the next day. Another work associate testified that the defendant was at work on November 19 at 8 a.m. The defendant did not testify.

I

The defendant’s first claim of error is that his conviction and punishment for attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) violates the double jeopardy clause of the fifth amendment to the United States constitution and the due process clause of the Connecticut constitution, article first, § 8. The defendant contends that his conviction and punishment for attempted sexual assault amounts to multiple punishments for the same offense, given that he had also been convicted of three counts of completed sexual assault, and thus violates the protection against double jeopardy. We disagree.

In State v. Rawls, 198 Conn. 111, 502 A.2d 374 (1985), we recited the state of the law with regard to double jeopardy protection against multiple punishments. In Rawls, we stated: “The double jeopardy clause of the fifth amendment to the federal constitution protects not only against multiple trials but also against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) .... ‘With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the . . . court from prescribing greater punishment than the legislature intended.’ Missouri v. Hunter, 459 U.S. 359, 366,103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). The issue, though essentially constitutional, becomes one of statutory construction. State v. Madera, 198 Conn. 92,109, 503 A.2d 136 (1985).” State v. Rawls, supra, 120.

In addressing legislative intent with regard to multiple punishments for sexual assaults, we have stated that “each separate act of forcible sexual intercourse constitutes a separate crime.” 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), citing 1 F. Wharton, Criminal Law and Procedure (1957) § 304; 65 Am. Jur. 2d, Rape § 106. Thus, each act of sexual assault is punishable separately. Likewise, an attempted act of sexual assault is punishable separately. See State v. Giannotti, 7 Conn. App. 701, 709, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986). With this legislative intent to punish each act or attempted act of intercourse in mind, the dis-positive question on this issue becomes whether the jury reasonably could have found that an attempt to commit sexual assault in the first degree, separate from any completed offense, occurred.

Under General Statutes § 53a-49 (a) (2), “[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 . . . 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 act or acts must be something more than mere preparation for committing the intended crime; they must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” State v. Green, 194 Conn. 258, 272, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Furthermore, the actor’s intent can be inferred from his or her verbal or physical conduct and the surrounding circumstances. Id., 273. “ ‘[T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption . . . or for other extrinsic cause.’” State v. Lapia, 202 Conn. 509, 515, 522 A.2d 272 (1987), quoting State v. Wilson, 30 Conn. 500, 506 (1862).

In this case, we conclude that the jury reasonably could have found that the defendant intentionally engaged in a course of conduct that constituted a substantial step in the commission of sexual assault by anal intercourse. The facts adduced at trial established that the defendant forced L, at knifepoint, to engage in vaginal intercourse on the hood of the car. Unsatisfied with this, he made L turn over and engaged in vaginal intercourse from behind. While engaged in vaginal intercourse, the defendant then stated that he wanted to engage in anal intercourse. From these facts, it was within the jury’s province, and was not an abuse of their factfinding discretion, to find that the defendant’s conduct and the attendant circumstances amounted to a substantial step in the .commission of sexual assault by anal intercourse. We will not disturb the jury’s finding on this issue where the defendant by verbal conduct had expressed his intent to engage in anal intercourse, by physical conduct had threatened the victim with a knife and already had forced the victim to submit to vaginal intercourse in two different positions, and where the surrounding circumstances of the incident were that the defendant had abducted this stranger and taken her to a field after midnight. It is of no consequence that after L’s refusal to submit to anal intercourse, the defendant gave her a “choice” between anal and oral intercourse. The fact that the defendant’s apparent original goal of engaging in anal intercourse was thwarted by the victim’s actions does not mitigate liability for the attempt. F. Sayre, “Criminal Attempts,” 41 Harv. L. Rev. 821, 847 (1928); see State v. Lapia, supra. The jury reasonably could have found that prior to the “choice,” the attempt was completed.

Therefore, we are not persuaded by the defendant’s claim of error on double jeopardy grounds. Our prior holdings make it clear that multiple punishments for separate acts or attempted acts of sexual assault occurring within a single “crime spree” in violation of the same statute are constitutionally permissible. In this case, we will not disturb the jury’s finding that the defendant took a substantial step toward sexually assaulting L by anal intercourse.

II

The defendant’s next claim is that the trial court erred in permitting the state to amend the bill of particulars after the conclusion of final arguments. We conclude, however, that the trial court acted within its discretion in permitting the amendment.

Amendment of a bill of particulars once a trial has begun is governed by Practice Book § 624, which provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.” We have stated that the purpose of this provision is to protect a criminal defendant’s right to fair notice of the charges against him or her. State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981); see State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Franko, 199 Conn. 481, 492, 508 A.2d 22 (1986).

Following closing arguments in this case, in the trial judge’s chambers, the judge pointed out to counsel that the bill of particulars, with respect to the sixth count of attempted sexual assault in the first degree, alleged that the defendant attempted to compel L to submit to oral intercourse. During closing argument and the state’s case-in-chief, however, the state’s attorney had alleged that the defendant had attempted to compel the victim to engage in anal intercourse. The state’s attorney represented that it had been his intent to have the bill of particulars allege attempted anal intercourse and that the mistake was a typographical error and a result of an oversight in his proofreading.

The in camera discussion between the trial judge and counsel was not transcribed. Thereafter, in court, however, defense counsel did object to a motion by the state to amend the bill of particulars to reflect that the attempted sexual assault count was based on attempted anal intercourse rather than attempted oral intercourse. Defense counsel did not articulate specific grounds for his objection but simply stated that he would take exception “for obvious reasons.” In ruling on the state’s motion to amend, the trial court stated that it did not see how the defendant would be prejudiced by the amendment. Accordingly, the trial court granted the motion to amend.

There are two elements under Practice Book § 624 that must be satisfied before the trial court may, in its discretion, allow an amendment to a bill of particulars. First, the amendment cannot charge the defendant with an additional or different offense, and second, the substantive rights of the defendant must not be prejudiced. In this case, the defendant concedes that the first element is satisfied. The defendant contends, however, that the second element “is much more problematic.”

As noted by the defendant, in State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980), we held that no substantive rights of a defendant are prejudiced by an amendment if the defense is one of alibi. See State v. McKnight, 191 Conn. 564, 587, 469 A.2d 397 (1983). In so holding in Wallace, we noted that “the defendant did not dispute the commission of the crime charged, he simply claimed that he was not the one who committed it.” State v. Wallace, supra. In this case, while the evidence offered by the defendant did not place him in another place at the times that the state maintained the crimes charged were committed, his defense at trial was that he was simply not the assailant. In short, according to the defendant, it was essentially a case of mistaken identity. See State v. Huff, 10 Conn. App. 330, 346, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). We do not agree with the defendant’s argument that we ought not to invoke Wallace in this case.

Although the defendant cites the recent United States Supreme Court case of Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988), for the proposition that a criminal defendant may raise inconsistent defenses, we are not persuaded by his argument that Mathews should prevent us from applying Wallace in this case. The court in Mathews held that under the federal rules, a criminal defendant who raises an alibi defense also may have the court instruct the jury on the defense of entrapment if there is sufficient evidence from which the jury reasonably could find entrapment. Id., 886. Disposition of the amendment issue in the present case, however, does not center on the permissibility of the defendant’s raising inconsistent defenses, but turns on whether the defendant had adequate notice of the charges against him and thus the possibility of raising inconsistent defenses. Under the circumstances of this case, we conclude that the defendant did have adequate notice of the charges against him and thus the amendment of the bill of particulars did not prejudice his substantive rights.

During the trial, all of the evidence of attempted sexual assault related to attempted anal intercourse. There was no evidence submitted that would have supported a charge of attempted oral intercourse. In addition, during closing argument, the state argued that the defendant had attempted to engage in anal intercourse with the victim. Nevertheless, in his brief, the defendant argues that had the bill of particulars alleged attempted anal rather than oral intercourse, he could have (1) cross-examined the victim to establish the precise details of the attempt, (2) argued in his motion for acquittal that no attempt had been established, and (3) presented the arguments more effectively to the jury. We conclude that the trial court reasonably could have found that the defendant had adequate notice of the charges based on the evidence and arguments during the trial and therefore did not err in finding that the amendment of the bill of particulars did not prejudice him. All of the tactics that the defendant claims he could have employed had there not been an error in the bill of particulars could have been employed based on that adequate notice of the charges and on our rules of practice.

Ill

The defendant’s final claim is that the trial court erred in failing to instruct the jury that, in order to convict the defendant, they had to find that he had committed the crimes in substantially the manner charged in the bill of particulars and that they had to agree on which acts constituted the crimes. See State v. Kish, 186 Conn. 757, 763, 443 A.2d 1274 (1982). Because the defendant did not except to the charge at trial, we will not review this claim unless the defendant’s constitutional rights were compromised. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

We note that the trial court, just prior to instructing the jury on each of the crimes charged, told the jury it was “about to charge [the jury] with regard to the offenses with which under the bill of particulars and the information the defendant is charged.” It had also told the jury at the outset that “[t]he bill of particulars outlines the state’s position as to the particular ways in which it believes the defendant has committed the crimes alleged.” It then proceeded to charge the jury specifically on each of the six counts in the information. The defendant had filed no request to charge the jury and took no exceptions at all to the instructions. The information and bill of particulars were with the jury during its deliberations.

When the jury returned its verdict on the six counts submitted to it, the clerk inquired as to its verdict on each count. Upon the trial court’s order that the verdict on each count be accepted and recorded, the clerk asked the jury six times, once after each count, whether “this is your verdict and so say you all.” (Emphasis added.) The transcript indicates that the jury indicated in the affirmative on each of the six inquiries. In the event that the defendant had any question of the unanimity of the verdict on any or all of these counts after this expression of unanimity, he could have, but did not, move to have the jury polled.

The defendant, on this issue, contends that United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), “expounds a test of conceptual distinctness” and that the court held that “a jury finding of the actus reus element of an offense cannot be considered unanimous if some of the jurors are allowed to think that the defendant committed an act of one conceptual kind while others believe that he has committed a conceptually distinct act.” We have had occasion recently to analyze Gipson at some length under factual circumstances not wholly similar to this case. See State v. Bailey, 209 Conn. 322, 333-39, 551 A.2d 1206 (1988). There, quoting State v. Flynn, 14 Conn. App. 10, 38, 539 A.2d 1005, cert. denied, U.S. , 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988), we noted that the rationale of Gipson was as follows: “ ‘Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act. . . .’ (Emphasis in original.)” State v. Bailey, supra, 334.

The defendant’s claim on this branch of the case focuses on the “particularized forms of sexual assault” which he maintains “were, at least in the context of this case, of distinct conceptual kinds.” We do not agree. The sexual assaults submitted to the jury did not fall into “two distinct conceptual groupings” so that there was the possibility of “significant disagreement among the jurors as to what [this defendant] did.” United States v. Gipson, supra, 458, 458-59; see State v. Giwosky, 109 Wis. 2d 446, 436 N.W.2d 232 (1982). As to the sexual assault counts, they were not, in any combination, conceptually distinct; they were conceptually unitary. The jury knew that each act was an act of compelled sexual intercourse, and not a grouping of conceptually distinct acts. The several ways in which sexual intercourse may be committed under General Statutes § 53a-65 (2) are only one conceptual offense. For that reason alone, the Gipson criteria are not met.

We also point out that the Fifth Circuit Court of Appeals itself has limited its holding in Gipson in United States v. Bolts, 558 F.2d 316, 326 n.4 (5th Cir. 1977), cert. denied, 434 U.S. 930, 98 S. Ct. 417, 54 L. Ed. 2d 290 (1978), where it said that “Gipson involved a situation where the court expressly sanctioned a non-unanimous verdict: the jurors were told that they could disagree as to what particular prohibited acts were committed, as long as each juror found that one of the acts had been done.” (Emphasis added.) See Fryer v. Nix, 775 F.2d 979, 992 (8th Cir. 1985). We cannot read the instructions in this case in such a manner. Therefore, the defendant’s constitutional rights have not been violated.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-92 (a) (2) provides: “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; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.”

       General Statutes § 53a-70 (a) provides: 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 § 53a-72a (a) (1) provides: “sexual assault in the third degree: class D felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) 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 § 53a-49 (a) (2) provides: “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.”

       L asked her attacker if he was going to let her go but he said that she knew what he looked like. She lied and told him that it was dark and she had not gotten a good look at him. On the assailant’s demand, L gave him an old majority card and he told her that he was leaving town, but if she went to the police, he would give the identification card to his “criminal friends in Bloomfield” and they would “get” L or her daughter.

       During the trial, Officer Robert Black testified about his encounter with L when she approached him just after the assault. His testimony showed that her description of the assailant on November 19 was consistent with her description of the assailant at trial.
      Dectective Richard Cousins testified about his arrest of the defendant on the night of November 26, 1985, and his questioning of the defendant on November 27. Cousins also testified about L’s identification of the defendant’s photograph at her house on November 29.
      Michael A. Pepi, a resident physician in obstetrics and gynecology at Mount Sinai Hospital, testified that he examined L on November 19,1985. In addition to testifying that L told him that she had been “forcibly entered vaginally, orally and attempted rectally,” he testified that L was very upset, disheveled and had several abrasions in her vagina as well as abrasions on both knees. There was a white discharge present in L’s vagina and that discharge contained motile sperm.

       The defendant also discussed, among other subjects related to the assault, the forty dollars and the majority card that he took from the victim.

       We note that Connecticut does not have an express double jeopardy clause, but we have interpreted our due process guarantees as including protection against double jeopardy. State v. Rawls, 198 Conn. 111, 113 n.3, 502 A.2d 374 (1985).

       The defendant did not raise this claim at trial. Because, however, it implicates the defendant’s constitutional right to be protected against double jeopardy, we review it under the second “exceptional circumstance” articulated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Wright, 197 Conn. 588, 592 n.6, 500 A.2d 547 (1985).

       Under General Statutes § 53a-51, an attempted crime is deemed to be a separate crime of the same grade and is punishable to the same degree as the most serious crime which is attempted, except that an attempt to commit a class A felony is considered a class B felony.

       “What constitutes a ‘substantial step’ in any given case is a question of fact,” and thus is properly left for the jury to decide. State v. Green, 194 Conn. 258, 277, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191,105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

       We view our decision in upholding the conviction for attempted sexual assault in this case as consistent with previous holdings of this and other courts. See, e.g., State v. Lapia, 202 Conn. 509, 516, 522 A.2d 272 (1987) (requesting oral sex and tightening ropes binding victim sufficient for attempted sexual assault conviction); State v. Upshaw, 7 Conn. App. 257, 261, 508 A.2d 791, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986) (sufficient evidence for conviction of attempted sexual assault in the first degree where the defendant forced his leg between the victim’s legs with sufficient force to bruise her genital area, declared his intention to assault victim “a lot of times,” declined to release her for money, attempted to take her to a secluded area, restrained her and covered her mouth to keep her from screaming); Johnson v. State, 473 So. 2d 652, 657 (Ala. Crim. App. 1985) (sufficient evidence for conviction of attempted rape in the first degree where defendant, holding a knife, told victim to get on hands and knees or he would cut her, exposed himself and said he that wanted to “f—” her and that he wanted a “blow job,” and jerked her pants down, but victim refused and defendant left); Johnson v. State, 144 Ga. App. 568, 569, 241 S.E.2d 458 (1978) (sufficient evidence for conviction of criminal attempt to commit rape where defendant grabbed the victim at the waist, said he wanted to “screw” her but fled after someone approached); see also People v. Satchell, 94 Ill. App. 3d 422, 430, 418 N.E.2d 1063 (1981); Thomas v. State, 519 N.E.2d 143,144-45 (Ind. 1988); State v. Newman, 408 N.W.2d 894, 896, 900 (Minn. App. 1987); People v. Troy, 119 App. Div. 2d 880, 882, 500 N.Y.S.2d 436 (1986); State v. Walton, 90 N.C. App. 532, 534, 369 S.E.2d 101 (N.C. App. 1988).

       Although Practice Book § 624 is written in terms of amendments to informations or indictments, it also is applicable to an amendment to a bill of particulars. See State v. Cunningham, 3 Conn. App. 353, 358, 488 A.2d 834 (1985). The bill of particulars is a factual expansion of the information. See State v. Laracuente, 205 Conn. 515, 518-19, 534 A.2d 882 (1987), cert. denied, U.S. , 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988).

       The amendment also must be based on good cause. See Practice Book § 624. The defendant does not contend that there was not good cause in this case.

       Under the facts of this case, we do not need to rely solely on the Wallace rule because we conclude that, independent of that rule, there has not been a showing that the defendant’s substantive rights have been prejudiced. Because the defendant had adequate notice of the charges against him, he could have raised inconsistent defenses based on those charges. The defendant did not do so and thus we are not presented with the question of whether the Mathews reasoning undermines our rationale in Wallace in this situation. State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980).
      Moreover, we note that at the trial the defendant did not object and except to any of the evidence concerning the attempt at anal intercourse. He also did not take any exception to the court’s charging the jury on that issue.

       The defendant could have moved for acquittal up to five days after the verdict was entered. Practice Book §§ 599, 600.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Wildwood Associates, Limited v. Nancy M. Esposito et al.
    (13407)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 16, 1988
    decision released April 25, 1989

      Morgan P. Ames, with whom was Joseph F. McVerry, for the appellant-appellee (plaintiff).

      William F. Gallagher, with whom was Cynthia C. Bott, for the appellees-appellants (defendants).
   Covello, J.

This is an action to quiet and settle title to which is appended a claim for damages for libel or slander of title. The plaintiff, Wildwood Associates, brought a multiple count action against James and Nancy Esposito and their attorney, Benson Snaider, seeking: (1) a judgment quieting title to real property; (2) damages for trespass to land; (3) an injunction restraining the defendants’ use of real property; and (4) damages for libel or slander of title to real property. The defendants denied the material allegations of the complaint and counterclaimed seeking an injunction restraining the plaintiffs use of the disputed premises and a judgment establishing title in them by way of adverse possession or, in the alternative, an order declaring their right to use the land by reason of their having acquired an easement by implication or prescription.

At the close of the plaintiffs case, the trial court dismissed the third, fourth and fifth counts of the complaint, which alleged slander of title, and rendered judgment for the defendant Snaider. Thereafter, the trial court, having heard both parties, rendered judgment for the defendants on the complaint and on their counterclaim, concluding that they had acquired title to the disputed premises by adverse possession. The plaintiff appealed from that judgment and the Espositos cross appealed claiming, in the alternative, that they had established an easement by prescription or by implication.

The trial court found that the plaintiff and the Espositos were abutting owners of certain shore front real property on Cosey Beach Avenue in East Haven. The Espositos’ property, by way of background, was designated as lot 13 on a subdivision map on file in the East Haven town clerk’s office and entitled: “Map of Shore Lots at Silver Sands, Town of East Haven, Connecticut, owned by Marion Hassan, John S. Madden Agent—1900.” To the immediate west of lot 13, the subdivision map depicted a narrow strip of open land and to the west of that strip, a small creek that drained into Long Island Sound.

Although the subdivision map contained no street names, there was evidence before the trial court that the narrow strip of land to the west of lot 13 was to be designated as Marion Road. Throughout its eleven transfers between 1908 and 1977, when it was acquired by the Espositos, lot 13 was uniformly described as being bounded: “NORTH: by Cosey Beach Avenue, 37.1 feet, more or less; EAST: by the West line of Lot 12 on said map and by a continuation thereof South in the same straight line to Long Island Sound, 150 feet, more or less; SOUTH: by Long Island Sound, 49 feet, more or less; WEST: by Marion Road, so called, 150.54 feet, more or less, by a continuation thereof South in the same straight line to Long Island Sound.” (Emphasis added.)

In due course, the small creek to the west of the proposed Marion Road was filled in and the plaintiffs property became a portion of a 44% acre residue distributed from the estate of Marion Hassan to Edward J. Hassan on August 1,1919. The residue was in essence all the other land nearby the Silver Sands subdivision owned by Marion Hassan that had not been designated as a lot in the Silver Sands subdivision itself. The plaintiffs land continued as a portion of this residue until it was first conveyed as a separate parcel in 1946. At that time it was simply described as “a strip of land bounded: NORTH: by Cosey Beach Avenue; EAST: by land now or formerly of John J. McKeon and Anna H. McKeon; SOUTH: by Long Island Sound; WEST: by land now or formerly of Charles S. MacGilvray . . . .” The deed contained no dimensions.

On the basis of a physical inspection of the premises, the testimony of the defendants, the testimony of previous owners and occupants of lot 13, and the examination of numerous maps and photographs of the area, the trial court concluded that the Espositos and their predecessors in interest had acquired title by adverse possession to a portion of the proposed Marion Road that lay to the immediate west of lot 13. The area acquired was designated as parcel “B” on the so-called Schatzlein map, one of several maps introduced in evidence:

(This is a composite drawing of the area in question.)

The trial court further concluded that the use made of the disputed premises “by the defendants’ predecessor’s in title, has been made openly, visibly, continuously, exclusively and adversely to the title holder of the plaintiff’s lot and that use has continued uninterruptedly for much longer than fifteen years.”

The factual basis for these conclusions lay in the trial court’s predicate findings that for a period “much longer than fifteen years” the Espositos and their predecessors had enclosed the area by fencing, had laid a bituminous concrete driveway over a portion of parcel “B,” had planted seagrass in the beach area of parcel “B” to prevent erosion and had cleared this beach area of debris following storms. The trial court further found that all of this had been carried out in an open and hostile manner and that no attempt was made by any record owner of the plaintiff’s lot to interrupt and prevent the use, with the exception of one predecessor in title who had orally complained but had taken no legal action to interrupt or terminate the use.

On appeal the plaintiff first argues that the quality of the defendants’ evidence was insufficient as a matter of law to support the trial court’s conclusion that the Espositos had acquired title to the disputed premises by adverse possession. We do not agree.

Adverse possession “is not to be made out by inference, but by clear and positive proof.” Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462, 338 A.2d 470 (1973); Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968). “ ‘[C]lear and convincing proof’ denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976).

Against this high standard of proof, however, we must also note the limited scope of our review in these cases. “ ‘Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.’ Layton v. Bailey, 77 Conn. 22, 28, 58 Atl. 355 [1904].” Spencer v. Merwin, 80 Conn. 330, 336, 68 A. 370 (1907); see also Roche v. Fairfield, supra, 498; Padula v. Padula, 138 Conn. 102, 110, 82 A.2d 362 (1951); Lengyel v. Peregrin, 104 Conn. 285, 288, 132 A. 459 (1926).

In advancing its argument that the quality of the proof does not rise to the “clear and convincing” standard required, the plaintiff singles out the hearsay testimony of both defendants concerning the out-of-court declarations of one “Lucy” McKeon. Both Espositos testified that they had been visited on four or five separate occasions in the 1970s and 1980s by McKeon, who had died two or three years prior to the trial. McKeon had told the Espositos that she had lived on the Cosey Beach Avenue premises from the early 1920s until the property was sold. She described not only the use made of the disputed parcel but the location of fencing and rocks that were put in place to delineate her family’s use of the property. James Esposito testified that he understood that McKeon may have been a onetime owner of lot 13. A photograph taken of McKeon upon one of her visits was introduced into evidence.

The plaintiff argues that an examination of the East Haven land records, and the copies of the various deeds in the chain of title that were introduced in evidence, fails to reveal any “Lucy” McKeon as a record owner of lot 13. This, coupled with other inconsistencies in what she is claimed to have said, causes the plaintiff to conclude that “[t]here is no clear and positive proof that ‘Lucy McKeon’ ever existed; hearsay testimony regarding her assertions is tenuous at best.” The plaintiff therefore argues that, as a matter of law, the evidence of the McKeon’s family possession and use of the disputed premises is inadequate for the purpose of establishing adverse possession. We do not agree.

“ ‘Declarations as to the location of ancient boundaries are hearsay, and are not admissible in evidence unless it appears (1) that the declarant is dead, (2) that he would be qualified as a witness to testify if present, and especially that he had peculiar means of knowing the boundary, (3) that the statement was made before the controversy in suit arose, and (4) that he had no interest to misrepresent the truth in making the declaration.’ Mentz v. Greenwich, 118 Conn. 137, 144, 171 A. 10 [1934]; Borden v. Westport, 105 Conn. 139,149, 134 A. 803 [1926]; Turgeon v. Woodward, 83 Conn. 537, 541, 78 A. 577 [1910]. ‘By “no interest to misrepresent” is meant freedom from selfish motive or self-interest, or personal advantage; disinterested not merely in the sense of having no pecuniary interest, but in the broader sense of being absolutely impartial and indifferent to the controversy on trial. . . . From earliest times we have excluded the declaration of the deceased owner of land as to his own boundary, for the reason that he was interested, and so the source of his title would forbid confidence to be placed in it. . . . For like reason, we have held similar declarations of one from whom the claimant derives title, to be inadmissible.’ Turgeon v. Woodward, supra, 542.’’Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 514, 227 A.2d 83 (1967).

Had it been unequivocally determined that McKeon was in fact a former owner of lot 13, her hearsay declarations as to the bounds of the property being adversely possessed would have been, as a matter of law, inadmissible. This not having been conclusively determined, and in fact having been disputed by the plaintiff, her level of disinterest and therefore the admissibility of her testimony, the other criteria having been satisfied, became a question of fact to be determined by the trier. This and the weight to be ascribed to her declarations, many of which were corroborated by the physical evidence presented and the testimony of other witnesses, were matters peculiarly within the province of the trier of fact. “Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952). We will not intrude upon this province unless the facts found are legally or logically inconsistent with the trial court’s conclusion. Lengyel v. Peregrin, supra, 288. This is not the case here.

The plaintiff next argues that the Espositos failed to establish their claim of adverse possession by clear and convincing evidence because of significant defects in the testimony of Raymond R. Grinold. Grinold, an owner of lot 13 from 1967 to 1973, testified by deposition as his residence out of the state prevented his personal appearance at trial. At Grinold’s deposition, counsel requested that he outline upon a map the limits of his use of the disputed premises. Having done so, he was then asked a series of questions concerning the particulars of this use. At the time of trial, the map used by Grinold was not introduced into evidence. The plaintiff argues that the missing map is essential to an understanding of the testimony contained in the deposition and that without it, the evidential value of the deposition testimony is fatally compromised. We do not agree.

Examination of the record discloses that the plaintiff’s parcel, including the portion in dispute, was essentially rectangular, being approximately 125 feet on Cosey Beach Avenue, 143 feet on Long Island Sound, 150 feet on the east and 158 feet on the west. The portion in dispute contained approximately 5000 square feet. Despite these modest dimensions, the record further discloses 11 maps, 15 aerial photographs and 48 other photographs all depicting some portion of the disputed premises.

One of the maps in evidence (exhibit D) is entitled “Map Showing Agreed Settlement Of Property Boundary Dispute Between Nancy M. Esposito And First Connecticut Small Business Investment Company, Inc.August-1985, East Haven, Connecticut, Survey By-R. J. Schatzlein, Scale Of Map -1”-20’.” Examination of the deposition discloses that Grinold was using a map entitled “Map Of Nancy M. Esposito To Property, East Haven, Connecticut, Dated April 1985, Surveyed by R. J. Schatzlein, Scale Of Map, l”-20’.” The Grinold map depicted a property to the west of the Esposito parcel as belonging to First Connecticut Small Business Investment Company, Inc. Exhibit D contains an identical notation. The Grinold map depicted the northerly boundary of the Espositos’ parcel as having a dimension of 37.10’. Exhibit D has an identical dimension for the same northerly boundary. The Grinold map contained a reference to an “Existing Bituminous Driveway.” Exhibit D has an identical reference. The Grinold map depicted an “Existing Wood Rail Fence” running northward 62.86 feet from Long Island Sound. Exhibit D contains a reference to such a fence and an identical dimension. The Grinold map showed a fence running eastward from the northerly terminus of the wood fence that ran northward from Long Island Sound. Exhibit D depicts an “Existing Wood Rail Fence” in precisely the same location.

It is evident from the deposition that the map to which Grinold referred in his testimony was very similar, if not identical, to the map that was in evidence before the trial court. It only takes a small measure of common sense to conclude that two maps made by the same person, within four months of one another, depicting the same area, which is not claimed to have changed, are probably going to be nearly identical. Despite the fact that the trial court did not have the benefit of seeing the lines that Grinold placed on the map, by examining the content of his testimony in the context of exhibit D and the many other items of graphic evidence, the trial court could have easily and clearly understood the full implications of Grinold’s testimony. We see no basis for concluding that this evidence was insufficient as a matter of law to support the Espositos’ claim of adverse possession. Again, the trier of fact is the final judge of the weight to be accorded admissible testimony. Morgan v. Hill, supra, 161. “In effect, the [plaintiff is] seeking to have this court retry the case. This, of course, we cannot do.” Whitney v. Turmel, supra, 148.

The plaintiff next argues that the Espositos’ claim to title by adverse possession was extinguished by a judgment of strict foreclosure rendered by the Superior Court on May 18, 1973, and recorded in the East Haven land records on January 6, 1977. The plaintiff further claims that the adverse possession interest, if not extinguished by the earlier foreclosure, was certainly terminated by a tax foreclosure proceeding instituted by the town of East Haven in which the Superior Court susbsequently rendered a judgment of foreclosure by sale. We do not agree for the reason that the property in dispute was not included in the parcels that were the subject of either foreclosure proceeding.

All the instruments recorded on the East Haven land records in connection with both foreclosures described the property being foreclosed as follows: “NORTH by Cosey Beach Avenue; EAST by land now or formerly of John J. McKeon and Anna H. McKeon; SOUTH by Long Island Sound; and WEST by land now or formerly of Charles S. MacGilvray.” (Emphasis added.) While the statement concerning the east boundary was accurate in that John J. McKeon and Anna H. McKeon had owned the property to the east, it begged the question as to where the east boundary was. By the time the foreclosure proceedings were commenced, there was evidence that the west boundary of the property of John J. McKeon and Anna H. McKeon had been moved westward as the result of the adverse use that owners had made of the property since 1921. Thus, the statement recorded on the East Haven land records that the property being foreclosed was bounded on the east by the McKeons put neither the public in general, nor the Espositos’ predecessors in particular, on notice that any claim was being raised that the location of the east boundary was any place other than where the McKeons’ predecessors claimed that it was.

While it is the “rule that adjoining property referred to in a deed as a boundary may be regarded as a monument. Post Hill Improvement Co. v. Brandegee, 74 Conn. 338, 50 Atl. 874 [1902]; Ensign v. Colt, 75 Conn. 111, 116, 52 Atl. 829, 830 [1902]; Bielby v. Blinn, 112 Conn. 1, 4, 151 Atl. 357 [1930] . . . that rule cannot apply to fix a boundary where the boundary of the land referred to is itself uncertain.” (Emphasis added.) Patzloff v. Kasperovich, 116 Conn. 440, 442, 165 A. 349 (1933); see also Barrs v. Zukowski, 148 Conn. 158,165, 169 A.2d 23 (1961).

Had the description said, “EAST by Lot 13 on a map entitled ‘Map Of Shore Lots, At Silver Sands, Town Of East Haven, Connecticut, Owned By Marion Hassan, John S. Madden Agent, 1900’, on file in the East Haven land records, being land now or formerly of John J. McKeon and Anna H. McKeon,” then there would have been an unequivocal declaration that the foreclosing party was claiming that the location of the east boundary of the foreclosed property extended all the way to the west boundary of lot 13, thereby enclosing in such a description the area that subsequently became the subject of this law suit. We conclude that the foreclosure proceedings claimed by the plaintiff did not include the premises that are in issue here.

The plaintiff finally argues that the trial court erred in dismissing its libel and slander of title claims for failure to prove malice. The record discloses that on October 5,1984, Nancy M. Esposito filed an affidavit on the East Haven land records in accordance with General Statutes § 47-12a. Thereafter, on December 4, 1985, Esposito recorded a copy of the Schatzlein map earlier described along with a quitclaim deed to herself of the disputed parcel“B” as it was depicted on the map. The plaintiff claimed that the Espositos did all of these things in a reckless, malicious, wanton manner thereby creating a cloud on the plaintiff’s title. At the close of the plaintiff’s case, the trial court granted the defendants’ motion to dismiss the libel and slander claims for failure to establish a prima facie case. The plaintiff now argues that the trial court erred in doing so. We do not agree.

The plaintiff claims that the defendants’ failure to come forward at the time of the foreclosure proceedings and contest the disputed boundary constituted evidence of their malice and bad faith in subsequently placing their claims upon the land record. As discussed above, we find nothing in the foreclosure proceedings that serves to charge any of the defendants with knowledge that the plaintiff’s predecessors were contesting the boundary as it had come to exist through years of adverse use. This is clearly not an adequate basis to support an inference of malice.

Finally, the plaintiff argues that the trial court erred in concluding, as an alternative basis for supporting the Espositos’ claim, that an easement by implication had been established. Since the trial court correctly concluded that the Espositos had acquired a fee simple title by adverse possession in the disputed premises, any claim concerning an easement by implication is rendered moot.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 47-31 provides in part: “(a) An action may be brought by any person claiming title to . . . real . . . property . . . against any person who may claim to own the property, or any part of it, or to have any estate in it . . . adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiffs claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. . . .
      “(b) The complaint in such action shall describe the property in question and state the plaintiff’s claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest. . . .
      “(d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived. . . .
      “(f) The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.”

       The legal implications that would flow from Marion Road having become a public street are not present in this case as the trial court specifically found that the town of East Haven had not accepted the dedication to a public use by any formal action or by implication. See Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980).

       We consider the phrase “clear and positive proof” to embody the same substantive standard as the phrase “clear and convincing proof.” See Lopinto v. Haines, 185 Conn. 527, 534 n.9, 441 A.2d 151 (1981).

       Practice Book § 248 (1) provides in part: “At the trial of a civil action . . . any part or all of a deposition . . . may be used against any party who was present or represented at the taking of the deposition ... in accordance with any of the following provisions . . . (d) The deposition of a witness . . . may be used by any party for any purpose if the court finds ... 2. that the witness ... is out of the state and will not return before the termination of the trial or hearing . . . . ”

       General Statutes $ 47-12a provides: “(a) An affidavit, which states facts relating to the matters named in subsection (b) and which may affect the title to or any interest in real estate in this state, and which is made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the land records of the town in which the real estate is situated. If so recorded, and if the affiant is dead or otherwise not available to testify in court, then the affidavit, or a certified copy of it, is admissible as prima facie evidence of the facts stated in it, so far as those facts affect title to real estate in any action involving the title to that real estate or any interest in it.
      “(b) The affidavits provided for in this section may relate to the following matters: Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marital status, possession or adverse possession, adverse use, residence, service in the armed forces, conflicts and ambiguities in description of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest.
      “(c) Every affidavit provided for in this section shall include a description of the land, title to which may be affected by facts stated in the affidavit, and shall state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit. The town clerk shall index the affidavit in the name of that record owner.” (Emphasis added.)


text:
    Charles D. Gianetti v. Norwalk Hospital et al.
    (13415)
    Healey, Shea, Glass, Hull and F. X. Hennessy, Js.
    Argued December 15, 1988
    decision released April 25, 1989

      Judith M. Trutt, with whom was Alan Neigher, for the appellant (plaintiff).

      Jay S. Kogan, with whom, on the brief, was John F. Fallon, for the appellees (defendants).
   Arthur H. Healey, J.

The plaintiff, Charles D. Gianetti, a physician licensed to practice medicine in Connecticut, instituted this action against Norwalk Hospital, its president and certain of its administrators and physicians, alleging breach of contract and antitrust violations, as well as seeking declaratory and injunctive relief. The action arose out of the alleged illegal refusal of the defendants to reappoint the plaintiff to the medical staff of the Norwalk Hospital for 1984. The case was referred to attorney state trial referee John J. Cotter. On March 11, 1987, he found that the bylaws of the Norwalk Hospital Association constituted an enforceable contract between Norwalk Hospital and the plaintiff and that the hospital’s action in reviewing Gianetti’s performance and the procedure by which he was not reappointed to the medical staff constituted a breach of the contract. The hospital filed an objection to the acceptance of the report of the attorney state trial referee. Thereafter, counsel for the parties filed a joint motion for reservation of legal issues pursuant to General Statutes § 52-235 (a).

At this point, we should set out certain findings of the attorney state trial referee that will serve as background for the serious procedural problem that we encounter on this reservation. These include the following: Norwalk Hospital is a nonprofit corporation organized under the laws of the state of Connecticut and thus must conduct its affairs in compliance with General Statutes § 33-423 (c). The hospital is a member of the Joint Commission on Accreditation of Hospitals that requires that its members adopt medical staff bylaws including provisions for due process fair hearings prior to termination of a doctor’s privileges. The hospital medical staff bylaws in effect during 1983 were approved by the board of trustees in November, 1982, and became effective on approval. Article III, § 2 (b), of the bylaws provides that written acceptance of membership on the medical staff constitutes certification that the staff member will abide by the bylaws, rules and regulations of the medical staff and the Norwalk Hospital Association.

The plaintiff is a licensed physician specializing in plastic surgery, who, in 1974, was appointed a provisional member of the hospital medical staff. In 1976, the plaintiff was granted full privileges as an assistant attending physician at the hospital. The plaintiffs privileges were renewed annually by the hospital through the period ending December 31, 1983. As a condition of membership on the hospital’s medical staff, the plaintiff agreed, in writing, to abide by the medical staff bylaws. One of the purposes of the bylaws stated in article II, § 4, is “to initiate and maintain rules and regulations for the self-government of the medical staff.” After purportedly following certain procedures referred to in the bylaws, including a vote of the medical staff to deny the plaintiff’s reappointment to the medical staff, the hospital board of trustees ratified the plaintiff’s nonreappointment to the medical staff of the hospital. 6Article V, § 2, of the bylaws governs the action of the board of trustees when a recommendation of nonreappointment is received from the medical staff. The attorney state trial referee also determined that the Norwalk Hospital medical staff bylaws “constituted an enforceable contract” between the hospital and the plaintiff.

With this background, we now look at the specific questions reserved to us. The questions that we are asked to answer on this reservation are: “(1) Do the bylaws of a Connecticut Hospital constitute an enforceable contract between the hospital and its medical staff?”; and (2) “Are administrative decisions by a hospital as to the rights of its medical staff under its bylaws subject to judicial review?” From everything that is properly before us on this reservation, it is apparent to us that the questions as reserved are framed too broadly for us to be able to “give to each a categorical or very definite answer,” as we are required to do on a reservation. Rothkopf v. Danbury, 156 Conn. 347, 351, 242 A.2d 771 (1968); Second National Bank v. Montesi, 144 Conn. 311, 315,130 A.2d 796 (1957); Ericson v. Childs, 124 Conn. 66, 82, 198 A. 176 (1938); see Practice Book § 4147. Particularly, the framing of the reserved questions, applying as they do, to any Connecticut hospital renders it impossible to answer these questions on a record that is replete with the controversy only between this plaintiff and the Norwalk Hospital and the other named defendants and not to any other Connecticut hospital. The only bylaws in the record are those of the Norwalk Hospital; there are no bylaws of any other Connecticut hospital before us. The briefs of the parties, as well as their oral argument before us, also developed at length the claims between the plaintiff physician and this defendant hospital. “A trial court or a judge cannot confer jurisdiction on this court merely by reserving questions for our advice”; Rothkopf v. Danbury, supra, 350; see Hoblitzelle v. Frechette, 156 Conn. 253, 255, 240 A.2d 864 (1968); and, thus, “cannot, by a reservation, compel action by this court.” Barr v. First Taxing District, 147 Conn. 221, 223, 158 A.2d 740 (1960); see Potter v. Appleby, 136 conn. 641, 643, 73 A.2d 819 (1950). This court is not bound to entertain a reservation, and whether it will do so rests in its discretion. Barr v. First Taxing District, supra. The extent to which we will entertain a reservation also rests in the discretion of this court. New Haven v. New Haven Water Co., 132 Conn. 496, 516, 45 A.2d 831 (1946).

We cannot entertain either of the two questions as framed by the parties. Both questions involve any Connecticut hospital. Moreover, answering either question would obviously involve physicians and hospitals that are not parties to this matter. One of the prayers for relief on the contract counts of the complaint is “for a declaratory ruling that the actions of the defendants as herein stated be declared null and void, and of no effect.” If we were to entertain the questions as framed, we would be handing down a declaratory ruling affecting the rights and liabilities of all Connecticut hospitals and their medical staff members. This we cannot and will not do because the record reveals no attempt to notify anyone other than the defendants named in the pending action. “Practice Book § 309 (d) provides that the court will not render declaratory judgments upon the complaint of any person ‘unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.’ This court has consistently required strict adherence to this rule. Gannon v. Sanders, [157 Conn. 1, 5, 244 A.2d 397 (1968)]; Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683 (1965); see also Salamandras v.Kozlowski, 173 Conn. 136,138 n.2, 376 A.2d 1103 (1977).” Cavalli v. McMahon, 174 Conn. 212, 215, 384 A.2d 374 (1978).

We have, however, entertained reservations where, although the reservation was not in proper form, the importance of the public interest in the issues involved was evident to us as it is here. See, e.g., St. John’s Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 718-19,184 A.2d 42 (1962); Stanton v. Stanton, 140 Conn. 504, 509, 101 A.2d 789 (1953); Barnes v. New Haven, 140 Conn. 8, 11, 98 A.2d 523 (1953); General Motors Corporation v. Mulquin, 134 Conn. 118, 133, 55 A.2d 732 (1947); New Haven v. New Haven Water Co., supra; cf. Second National Bank v. Montesi, supra, 315. This court has overlooked a defect in a reservation because of “the importance of the issues involved and the fact that the claims of the parties have been fully presented in argument and brief” (emphasis added); General Motors Corporation v. Mulquin, supra; that is true here. Where the questions propounded are improperly framed, we have to answer the questions “in a manner which will be adequate to guide the trial court in rendering judgment.” Stanton v. Stanton, supra. At oral argument, we pointed out to the parties that the two questions as reserved would be impossible to answer on the state of this record.

Under the circumstances of this case, we, therefore, will answer two questions on this reservation with the first question reframed as follows: (1) Do the bylaws of the Norwalk Hospital constitute an enforceable contract between that hospital and Dr. Gianetti as a member of its medical staff? We entertain the second question reframed as follows: (2) Are administrative decisions by the Norwalk Hospital, as to the rights of Dr. Gianetti as a medical staff member under its bylaws, subject to judicial review?

Turning to the first question, it must be answered in the negative, i.e., the bylaws of the Norwalk Hospital do not constitute a contract between it and the plaintiff as a member of its medical staff. The plaintiff maintains in his brief that the “association between the hospital and its staff is based upon contract; once the by-laws are approved by the hospital’s board of directors, ‘they became an integral part of the contractual relationship between the hospital and the members of the staff.’ ” (Emphasis added.) Berberian v. Lancaster Osteopathic Hospital, 395 Pa. 257, 263, 149 A.2d 456 (1959). In arguing that “[t]he bylaws were clearly structured as a contractual obligation,” he refers, inter alia, to the fact that one of the purposes of the bylaws was “[t]o initiate and maintain rules and regulations for the self-government of the medical staff.” Norwalk Hospital Medical Staff Bylaws, art. II, § 4. He also refers to the provision of the bylaws that “[wjritten acceptance of membership shall further constitute the applicant’s certification that he will abide by the bylaws, rules and regulations of the Medical Staff and the Nor-walk Hospital Association.” Norwalk Hospital Medical Staff Bylaws, art. III, § 2 (b).

The hospital argues that its bylaws do not constitute a contract between it and the members of its medical staff but do constitute “a guide for the hospital’s self-government.” General contract principles, it maintains, support its claim that there is no enforceable contract here, arguing that the bylaws were not only promulgated just for “its own self-government and self-guidance,” but that they also are self-imposed strictures that in no way resulted from negotiations between it and the plaintiff. It argues also that they cannot be a contract with the plaintiff because the authority to adopt the bylaws “was unilaterally vested in the governing board” and acceptance of them does not constitute the acceptance of a contract. Recognition of the bylaws as an enforceable contract with its staff physicians, to whom it only granted “privileges,” “undermines” a private hospital’s primary duty to protect the lives, health and welfare of its patients, according to Norwalk Hospital. It takes this position while acknowledging that some jurisdictions have held that medical staff bylaws do constitute a contract between a hospital and members of its medical staff.

Under traditional contract law, we conclude that the Norwalk Hospital medical staff bylaws, by themselves, do not constitute an enforceable contract between this hospital and the plaintiff. This is so because the governing board of the Norwalk Hospital already has a legal duty imposed by Connecticut state department of health regulations to adopt “bylaws, rules and regulations, including medical staff bylaws.” Regs., Conn. State Agencies § 19-13-D3 (b) (1) (A). The legal duty to adopt medical staff bylaws under the regulation, a fortiori, imposes a legal duty upon the Norwalk Hospital to abide by such bylaws.

Agency regulations, appropriately issued, have the force and effect of a statute. See Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145,154, 285 A.2d 352 (1971). We therefore construe agency regulations in accordance with accepted rules of statutory construction. 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1985) § 31.06. Just as it is accepted that the legislature does not enact superfluous statutes; State v. Ellis, 197 Conn. 436, 472-73, 497 A.2d 974 (1985); Amsel v. Brooks, 141 Conn. 288, 295, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S. Ct. 125, 99 L. Ed. 693 (1954); the same is true of administrative regulations. If the department of health had not intended that the hospital abide by its medical staff bylaws, then the requirement that it enact such bylaws would be superfluous. Therefore, because the hospital has this preexisting legal duty to adopt and abide by its medical staff bylaws, that hospital’s agreement to do just that cannot constitute valid consideration to support an enforceable contract.

“The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable. Osborne v. Locke Steel Chain Co., 153 Conn. 527, 530, 218 A.2d 526 [1966]. Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. Id., 531; Finlay v. Swirsky, 103 Conn. 624, 631,131 A. 420 [1925].” State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973). The hospital’s “promise” to the plaintiff to perform what it already had the preexisting legal duty to do did not constitute valid consideration. See Holcomb v. United States, 622 F.2d 937, 941 (7th Cir. 1980) (“The general rule is that a promise to do something which the promisor is already legally obligated to do does not constitute consideration. 17 Am. Jur. 2d, Contracts § 119; Restatement, Contracts § 76”); Estate of Bogley v. United States, 514 F.2d 1027,1033 (Ct. Cl. 1975); Borbely v. Nationwide Mutual Ins. Co., 547 F. Sup. 959, 980 (D.N.J. 1981) (“[t]o be enforceable, a contract must be supported by valuable consideration”); Gruber v. Klein, 102 Conn. 34, 36-37, 127 A. 907 (1925); County of Clark v. Bonanza No. 1, 96 Nev. 643, 650-51, 615 P.2d 939 (1980) (“[consideration is not adequate when it is a mere promise to perform that which the promisor is already bound to do”); Novack v. Cities Service Oil Co., 149 N.J. Super. 542, 549, 374 A.2d 89 (1977); 1 S. Williston, Contracts (3d Ed. Jaeger) § 132; 17 C.J.S., Contracts § 111. Furthermore, the plaintiff makes no claim that he had any input into the bylaws and he does not respond to the hospital’s argument that the “strictures in the Bylaws . . . in no way resulted from the negotiations between the Hospital and the Plaintiff.” We therefore answer the first question, “No.”

We now take up the second question: Are administrative decisions by the Norwalk Hospital, as to the rights of Dr. Gianetti as a medical staff member under its bylaws, subject to judicial review? Initially, we point out that our answer “No” to the first question does not control our answer to this question, to which we answer, “Yes.”

In this second question, we are not asked, as in the first question, whether the bylaws of the Norwalk Hospital, per se, constitute an enforceable contract, but rather whether the administrative decisions as to the rights of the plaintiff as a member of its medical staff under its bylaws are subject to judicial review. It is obviously a broader question than the first in that it includes more than a consideration of the bylaws alone. The question encompasses the circumstances of the hospital’s administrative decision not to reappoint this plaintiff under its bylaws as those circumstances are set out in the factual findings of the attorney state trial referee.

With this question, we are presented with the plaintiff, a physician who, already a medical staff member with privileges, has been denied reappointment by the hospital purportedly acting within its bylaws. An examination of the hospital’s medical staff bylaws discloses that the hospital clearly intended that membership on its medical staff was a “privilege” that it might or might not extend to a physician. It can hardly be said that the hospital must extend the privileges to every physician who seeks them. Once this hospital, however, has agreed to extend privileges to a physician, the hospital has changed its position with reference to that physician. By agreeing to extend privileges to the plaintiff physician, the hospital has then done something it was not already bound to do. See State National Bank v. Dick, supra, 529; cf. Associated East Mortgage Co. v. Highland Park, Inc., 172 Conn. 395, 404, 374 A.2d 1070 (1977). In granting privileges, this hospital extended to the plaintiff those benefits to his medical practice that are to be gained by the use of the hospital, including its facilities and admissions to the hospital. “Whatever else the granting of staff privileges may connote, it is clear . . . that it [at least] involves a delegation by the hospital [to the physician] of authority to make decisions on utilizations of its facilities.” Mt. Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d 329, 338 (5th Cir. 1975), cert. denied, 425 U.S. 935, 96 S. Ct. 1665, 48 L. Ed. 2d 176 (1976). In return for that, the plaintiff agreed to abide by its medical staff bylaws. Therefore, the requisite contractual mutuality was then present. Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 652-53, 353 A.2d 714 (1974). This agreement was supported by valid consideration. See State National Bank v. Dick, supra; Osborne v. Locke Steel Chain Co., supra, 531. The hospital changed its position by granting medical staff privileges and the plaintiff physician has likewise changed his position in doing something he was not previously bound to do, i.e., to “abide” by the hospital medical staff bylaws. Therefore, there is a contractual relationship between the hospital and the plaintiff.

As discussed earlier, it is inherent in this contractual relationship that the hospital must obey its own bylaws. It is crucial to understand that the medical staff bylaws, per se, do not create a contractual relationship between the hospital and the plaintiff but because of the undertakings of the plaintiff and the hospital and because the hospital has a duty to obey its bylaws, the bylaws have now become “an enforceable part of the contract” between the hospital and this physician to whom it has given privileges at the hospital. (Emphasis added.) Pariser v. Christian Health Care Systems, Inc., 816 F.2d 1248, 1251 (8th Cir. 1987); Adler v. Montefiore Hospital Assn. of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 94 S. Ct. 870, 38 L. Ed. 2d 755 (1974) (“[t]he bylaws enacted and approved by the Hospital are an integral part of the contractual relationship with the [physician]”) (emphasis added); see also Nagib v. St. Therese Hospital, Inc., 41 Ill. App. 3d 970, 971, 355 N.E.2d 211 (1976). As mentioned earlier, the plaintiffs brief acknowledges that once the bylaws are approved by the board of trustees, “they become an ‘integral part of the contractual relationship between the hospital and the members of the staff.’ ” Because issues of contractual rights and duties are subject to judicial review, it follows that because the Norwalk Hospital medical staff bylaws are an integral part of the contractual relationship between the plaintiff and this hospital, actions under these bylaws are also subject to judicial review.

At this point, we note that, in resolving the issue of judicial reviewability of a hospital’s administrative decisions concerning medical staff membership, some jurisdictions have focused on the distinction between public and private hospitals. See note, “The Physician’s Right to Hospital Staff Membership: The Public-Private Dichotomy,” 1966 Wash. U.L.Q. 485,495. The majority rule appears to be to refuse judicial review of exclusions from the medical staffs of private nonprofit hospitals. See, e.g., Shulman v. Washington Hospital Center, 222 F. Sup. 59, 63 (D.D.C. 1963); Silver v. Castle Memorial Hospital, 53 Haw. 475, 476-78, 497 P.2d 564 (1972); Barrows v. Northwestern Memorial Hospital, 123 Ill. 2d 49, 525 N.E.2d 50, 51-52 (1988); note, “Medical Staff Membership Decisions: Judicial Intervention,” 1985 U. Ill. L. Rev. 473, 482; C. Groseclose, “Hospital Privilege Cases: Braving the Dismal Swamp,” 26 S.D.L. Rev. 1, 10 (1981). As opposed to public hospitals, this view accords private hospitals “the absolute right to exclude any physician from [its medical staff]”; Silver v. Castle Memorial Hospital, Inc., supra, 476-77; without the opportunity for judicial review. This position has been referred to as the “rule of nonreview.” See, e.g., Jain v. Northwest Community Hospital, 67 Ill. App. 3d 420, 425, 385 N.E.2d 108 (1978). In Connecticut, the public/private dichotomy was addressed in Edson v. Griffin Hospital, 21 Conn. Sup. 55, 144 A.2d 341 (1958). In that case, the plaintiff sought injunctive relief against a curtailment of his existing staff privileges at the defendant hospital. The Edson court applied the public/private dichotomy and said that the defendant was “a private hospital with the right to exercise control over its own internal operations and management.”Id., 59. Although Edson did not involve any contractual issue, that court found that “[t]he general rule seems to be that a private hospital has the right to exclude any physician from practicing therein, and such exclusion rests with the sound discretion of the managing authorities.” Id., 60. The Edson opinion and those of other courts that rely on the public/private hospital distinction to deny judicial review, however, are inapposite where, as in this case, there is a contractual relationship of which the staff bylaws are an integral part. Implicit in that contractual relationship is the right of all of the parties to protect their contract rights through judicial proceedings.

The case of Greisman v. Newcomb Hospital, 40 N. J. 389, 192 A.2d 817 (1963), although not involving a contractual relationship between the plaintiff and the defendant hospital, also addressed the public/private dichotomy. Greisman was denied medical staff privileges at the defendant hospital because he was an osteopath. The defendant maintained that it was immune from judicial review of its denial because it was a private hospital. The Greisman court, in discussing judicial review of the defendant hospital’s decision to exclude the plaintiff, said: “[Hospital officials] must recognize that their powers, particularly those relating to the selection of staff members, are powers in trust which are always to be dealt with as such,” and courts will intervene to enforce judicially this fiduciary concept. Id., 404; see Silver v. Castle Memorial Hospital, supra; Woodard v. Porter Hospital, Inc., 125 Vt. 419, 423, 217 A.2d 37 (1966). This rationale from Greisman, although, like Edson, not a case involving a contractual relationship, gives support to the propriety of reviewing medical staff decisions made under staff bylaws.

Furthermore, judicial review of private hospital administrative decisions is hardly a novel concept. While a majority of jurisdictions continues to refuse judicial review of exclusion from the medical staffs of nonprofit private hospitals, there are a number of those states that still adhere to the position that, nevertheless, a private hospital must comply with the procedural requirements in its own medical staff bylaws to revoke already existing staff privileges or be subject to limited judicial review. See Margolin v. Morton F. Plant Hospital Assn., Inc., 348 So. 2d 57 (Fla. App. 1977); Spencer v. Community Hospital of Evanston, 87 Ill. App. 3d 214, 216, 408 N.E.2d 981 (1980) (where physician’s existing staff privileges are revoked or reduced, private hospital must follow its bylaws or be subject to limited judicial review); Jain v. Northwest Community Hospital, supra, 425; Nagib v. St. Therese Hospital, Inc., supra; Gotsis v. Lorain Community Hospital, 46 Ohio App. 2d 8,19-21, 345 N.E.2d 641 (1974); accordShulman v. Washington Hospital Center, supra, 63 (dicta); see also C. Groseclose, supra, 11. These cases also give support to our conclusion permitting judicial review of such administrative decisions.

In sum, we conclude that there is a contractual relationship between Norwalk Hospital and the plaintiff, of which the Norwalk Hospital’s medical staff bylaws are an integral part. The rights and duties arising out of this contractual relationship, as in any contractual relationship, are subject to judicial review. We accordingly answer the second question, “Yes.”

No costs will be taxed to either party.

In this opinion the other justices concurred.

       The defendants are Norwalk Hospital, a nonprofit corporation organized under Connecticut law; William F. Hughes, M.D., and Horace Laffaye, M.D., the chairmen of the department of surgery of Norwalk Hospital; E. J. Tracey, M.D., chief of staff of Norwalk Hospital; Joel Singer, M.D., chief of the plastic and reconstructive surgery section of Norwalk Hospital; Norman A. Brady, president of Norwalk Hospital; Carmine Calabrese, M.D.; and Philip F. Corso, M.D.

       General Statutes § 52-235 (a), entitled “Reservation of questions of law,” provides: “The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.”
      This joint motion for reservation, which the Superior Court granted on February 16,1988, provided for a reservation to the Appellate Court. Pursuant to Practice Book § 4023, the Supreme Court transferred this case to itself on April 14, 1988.

       General Statutes § 33-423 (c), which is found in Chapter 600 of the General Statutes, entitled “Nonstock Corporations,” provides: “restrictions ON PURPOSES AND POWERS OF CORPORATIONS. . . .
      “(c) Nothing in this chapter shall be construed to authorize a corporation formed hereunder to conduct any affairs except in compliance with any laws of this state regulating or otherwise applying to the same. The provisions of this chapter govern all corporations, but notwithstanding the provisions of this chapter, where by law special provisions are made in the case of a designated class or classes of corporations governing the corporate procedure thereof in any respect, limiting or extending the powers thereof, conditioning action upon the approval of any agency of the state, or otherwise prescribing the conduct of such corporations, such procedure, powers, action and conduct shall be governed by such special provisions whether or not such corporations are formed under this chapter.”

       Article III, § 2 (b), of the Norwalk Hospital medical staff bylaws (a copy of which was in evidence) provides: “Acceptance of membership on the medical staff shall constitute the applicant’s certification that he will abide by the Principles of Medical Ethics of the American Medical Association, by the Code of Ethics of the American Osteopathic Association or by the Code of Ethics of the American Dental Association whichever is applicable. These codes of ethics are appended to and made a part of these bylaws. Written acceptance of membership shall further constitute the applicant’s certification that he will abide by the bylaws, rules and regulations of the medical staff and the Norwalk Hospital Association.”

       The attorney state trial referee made a number of detailed findings concerning certain provisions of the bylaws that govern the procedure involving the steps required in the reappointment or nonreappointment of a member of the hospital medical staff, as well as the failure of the hospital to observe some of them.

       We have said that “[wjhether a contract exists is a question of fact for the court to determine.” Randolph Construction Co. v. King’s East Corporation, 165 Conn. 269, 277, 334 A.2d 464 (1973); Bridgeport Pipe Engineering Co. v. DeMatteo Consruction Co., 159 Conn. 242, 249, 268 A.2d 391 (1970); Molloy v. Rourke, 83 Conn. 196,199, 76 A. 517 (1910). We have also suggested that the existence of a contractual relationship may be a mixed question of fact and law. See Connecticut Steel Co. v. National Amusements, Inc., 179 Conn. 210, 425 A.2d 1260 (1979).
      We do not find facts. In this case, on the record, we are in a position to decide whether, as a matter of law, a valid contract existed between the plaintiff and the hospital.

         Sections 19-13-D2 and 19-13-D3 of the Regulations of Connecticut State Agencies provide in relevant part: “Sec. 19-13-D2 operation and maintenance All hospitals licensed under sections 19-32 to 19-42 of the general statutes, as amended, shall comply with the requirements set forth in sections 19-13-D2 to 19-13-D12, inclusive, before a license is issued.” “Sec. 19-13-D3. SHORT-TERM HOSPITALS, GENERAL AND SPECIAL . . . . “(b) administration. (1) The hospital shall be managed by a governing board whose duties shall include, as a minimum: (A) Adoption of bylaws, rules and regulations, including medical staff bylaws. . . . “(c) medical STAFF. . . . (2) The medical staff shall adopt written rules and regulations governing its own activities, subject to approval by the governing board of the hospital. As a minimum, these shall include: (A) Method of control of privileges granted to members of the medical staff ... .(F) procedure for recommending appointments to the medical staff and for hearing complaints regarding the conduct of members and referring the same, with recommendations, to the governing board.”

       We note that “[t]he Joint Commission on Accreditation of Hospitals, to which Norwalk Hospital belongs, requires its members adopt medical staff bylaws which provide for fair-hearing and appellate review mechanisms prior to the termination of a doctor’s privileges. JCAH Accreditation Manual for Hospitals, 1983,1988, Standard MS 2.4.2.” A highly effective pressure for hospital professional discipline has come from the Joint Commission on Accreditation of Hospitals that requires that its members maintain minimum professional standards in all phases of hospital administration. Comment, “Hospital Staff Privileges: The Need for Legislation,” 17 Stan. L. Rev. 900, 903 (1965).
      “Although [accreditation by the Joint Commission on Accreditation of Hospitals] is not legally required, both public and private hospitals actively seek JCAH accreditation, which affords hospitals substantial financial benefits and professional prestige.” Note, “Medical Staff Membership Decisions: Judicial Intervention,” 1985 U. Ill. L. Rev. 473, 476.

       We note that this reservation comes to us in the context of the reappointment of the plaintiff who is already a medical staff member and not an initial application for medical staff membership. Thus, there is no doubt that the provisions of the medical staff bylaws of the Norwalk Hospital apply to the plaintiff.