author: Glass, J.

text:
    Yale University School of Medicine v. Esther Collier et al. Yale-New Haven Hospital v. Esther Collier et al.
    (13152)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued November 13, 1987
    decision released January 19, 1988

      Lloyd S. Lowinger, with whom, on the brief, were Joseph M. Tobin and Robert C. Levine, for the appellants (plaintiffs).

      Joseph Glass, for the appellee (named defendant).
   Glass, J.

The principal issue in this appeal is whether abandonment is a defense in a creditor’s lawsuit against a spouse for a hospital debt incurred by the other spouse after the couple had separated. Actions were brought by both Yale-New Haven Hospital and Yale University School of Medicine/Office of Professional Services, seeking payment pursuant to General Statutes § 46b-37, from the named defendant Esther Collier, for medical services rendered to Lester Collier, her deceased husband. The named defendant filed special defenses alleging that she is not responsible for her deceased husband’s medical expenses, because at the time that the services were rendered, her husband had abandoned her and the parties were living apart. The cases were consolidated for trial before a jury, which rendered verdicts for the named defendant. After a denial of the plaintiffs’ motions to set aside the verdicts, judgments were rendered thereon, and the plaintiffs appealed. Thereafter, this court transferred the appeal to itself pursuant to Practice Book § 4023. We find no error.

The jury could reasonably have found the following facts: The named defendant, Esther Collier, married the decedent on October 14, 1962. The couple had five children. In early 1979, the decedent left the named defendant to take up a relationship with another woman. It is undisputed that the decedent left the named defendant and their children without just cause and never returned to his family or resumed marital relations. During the time that the decedent lived away from his family, his children lived with the named defendant and were supported by her, with an occasional contribution from him.

On July 19, 1981, a motor vehicle operated by the decedent struck a pole. His girlfriend, a passenger in the motor vehicle, was killed instantly and he received serious injuries. He was taken to Yale-New Haven Hospital where he was treated for fifty-two days before his death on September 9, 1981. The total bill claimed by Yale-New Haven Hospital for services rendered to the decedent was $80,159.78. A payment of $20,000 was made by an insurance company, leaving a balance of $60,159.78. The amount claimed by the Yale University School of Medicine for services rendered is $4721.75.

I

The plaintiffs’ principal claim is that the trial court erred in instructing the jury that abandonment was a special defense to an action brought pursuant to General Statutes § 46b-37. We disagree. At common law, the primary duty of spousal support was on the husband. Zybura v. Zybura, 142 Conn. 553, 115 A.2d 452 (1955); Marino v. Marino, 136 Conn. 617, 73 A.2d 339 (1950); Hein v. Hein, 127 Conn. 503, 18 A.2d 374 (1941); Smith v. Smith, 114 Conn. 575, 159 A. 489 (1932). In return, the husband was entitled to his wife’s cohabitation, services, society and affection. Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 683, 116 A.2d 906 (1955); Martin v. Martin, 134 Conn. 354, 357, 57 A.2d 622 (1948). An enhancement of the wife's legal status had been brought about by the enactment of the Married Women’s Act in 1877. See Public Acts 1877, c. 114 (now General Statutes § 46b-36). This legislation enabled a married woman to control her own property and to sue and be sued in the same manner as her husband.

General Statutes § 46b-37 (a) provides that “[a]ll purchase[s] made by either a husband or wife in his or her own name shall be presumed in the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase.” This section of the statute lends recognition to the ability of each spouse to acquire property individually and to be liable individually for its purchase in the absence of notice to the contrary.

Section 46b-37 (b) provides in pertinent part: “Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for . . . (2) hospital expenses rendered the husband or wife or minor child while residing in the family of its parents.” The plaintiffs claim that the plain meaning of this section is that each spouse is liable for the hospital expenses incurred by the other during the marriage, and that § 46b-37 (b) (2) makes no exception for a spouse who had been abandoned, although § 46b-37 (b) (6) does specifically refer to the duty of a husband to provide reasonable support to his wife whom he had abandoned. The plaintiffs further contend that the only exception to the named defendant’s liability under § 46b-37 (b) is set forth in § 46b-37 (c) which provides: “No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support.” The plaintiffs assert that § 46b-37 (c) was added to protect a spouse from the potential double liability for support. See Baledes v. Greenbaum, 112 Conn. 64, 151 A. 333 (1930); Howland Dry Goods Co. v. Welch, 94 Conn. 265, 267, 108 A. 510 (1919). According to the plaintiffs, “[cjlearly, the legislature intended this to be the only exception to the general rule of liability. Not every ‘separation’ exculpates a spouse; only a separation during which reasonable support was paid to the other spouse.”

The evolutionary changes in married women’s rights that enabled them to acquire and dispose of property also generated changes in the obligations of each spouse to the marriage. In the evolutionary process the primary obligation of the husband to provide support for his wife and children under the common law evolved into a joint duty of each spouse to support the family. Section 46b-37 (b) provides the basic statutory predicate for this change. Article fifth of the Connecticut constitution, amending § 20 of article first of the Connecticut constitution, however, provides the constitutional underpinnings for contemporary departure from the primary duty of one spouse to the joint duty of each spouse to support his or her family. It must also be recognized that even when the husband had the primary duty to support his wife, his duty was not absolute and unyielding. We have said: “If [the wife] is living apart from [the husband] without justification, this obligation is suspended.” Cantiello v. Cantiello, 136 Conn. 685, 689, 74 A.2d 199 (1950); Litvaitis v. Litvaitis, 162 Conn. 540, 547, 295 A.2d 519 (1972); accord Boushay v. Boushay, 129 Conn. 347, 27 A.2d 800 (1942) (where wife, without justification, refused to live and cohabitate with her husband or otherwise perform the duties of the marriage, the court held that such conduct suspended any obligation on the husband’s part to support the wife); see Alexander v. Alexander, 107 Conn. 101, 108, 139 A. 685 (1927). In a related area, in an action by the state against a defendant seeking to compel him to support his wife, abandonment without cause was held to be a defense even though the statute did not provide for it. State v. Jordan, 142 Conn. 375, 114 A.2d 694 (1955). Conversely, a husband is obligated to support his wife if she is living apart from him with just cause. Trenchard v. Trenchard, 141 Conn. 627, 109 A.2d 250 (1954); Churchward v. Churchward, 132 Conn. 72, 42 A.2d 659 (1945).

Prior to the evolutionary changes in our common law wrought by the Married Women’s Act of 1877, and its statutory progeny, the plaintiffs would not have been able to maintain these actions. In seeking to hold the named defendant liable under § 46b-37 (b) (2) where at common law no liability existed, “the plaintiff ignores the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction. Stoll v. Judd Co., 106 Conn. 551, 556, 138 A. 479 [1927]. ‘In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. “The court is to go no faster and no further than the legislature has gone.” . . . A legislative intention not expressed in some appropriate manner has no legal existence.’ Willoughby v. New Haven, 123 Conn. 446, 454-55, 197 A. 85 [1937].” Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). We have stated further that “[n]o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951), quoting Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 (1879).

Under § 46b-37 (b) it is the “joint duty” of each spouse to support the family and both shall be liable for hospital expenses rendered the husband or wife. Under the common law rule, however, when one spouse is in default of his or her marital duties, the obligations of the other spouse are considered suspended. See Kurzatkowski v. Kurzatkowski, supra, 683; Cantiello v. Cantiello, supra, 689; Martin v. Martin, supra, 357. There is no claim that the decedent provided his wife and children with “reasonable support” after he left them. Indeed, the decedent only occasionally contributed to the support of his children. Also, since the unchallenged evidence indicates that the decedent left the named defendant without just cause, there has been no claim that the named defendant was obliged to provide the decedent with “reasonable support” during the time that the couple were separated. It follows that since the decedent left the named defendant without just cause, the obligations of the named defendant imposed by § 46b-37 (b) were suspended. Because § 46b-37 (b) is in derogation of the common law and creates liability where formerly none existed it should be strictly construed and not enlarged in its scope by the mechanics of construction. Edmundson v. Rivera, supra. Accordingly, this appeal is governed by the fact that the decedent’s abandonment of the named defendant would have suspended her marital obligations toward him at common law. Kurzatkowski v. Kurzatkowski, supra; Cantiello v. Cantiello, supra; Martin v. Martin, supra. We discern no indication that the legislature by enacting § 46b-37 (b), which is in derogation of the common law, intended to eliminate abandonment as a defense. Edmundson v. Rivera, supra. The instructions properly placed the burden of proof of abandonment without cause on the named defendant. Considering the plain, common sense construction of § 46b-37, the common law and our law in related areas, we conclude that on the basis of the evidence in this case the defense of abandonment was properly submitted to the jury.

The plaintiffs also assert that if abandonment is allowed as a defense to defeat a creditor’s claim against a spouse, the purpose of § 46b-37 (b) to protect creditors will be impermissibly thwarted. Had the plaintiffs presented evidence that the medical service rendered to the decedent was in reliance upon the named defendant’s representations that she would pay his medical bills, perhaps this argument would be more persuasive. Here, the plaintiffs are seeking to recover for the medical services rendered to the decedent after he had been separated from the named defendant for approximately two years. Whether the separation of the parties is for cause attributed to either spouse is a question of fact to be determined by the trier on the basis of the evidence. We are not persuaded that creditors’ claims against married persons will be impermissibly thwarted by allowing a jury to determine whether the decedent’s separation from the defendant constituted abandonment where the evidence of such abandonment is as clear as it was in this case. Next, the plaintiffs argue that if abandonment is allowed as a special defense, the question of fault in causing the separation will be improperly injected into the creditor’s claim against a married person. The plaintiffs concede that if these actions were instituted for the purpose of recovering for support provided to the decedent, the named defendant would be permitted to invoke the exculpatory provisions of § 46b-37. We find no evidence in the record to warrant a conclusion that the consideration of fault with the defense of abandonment in connection with a claim under § 46b-37 (b) (2) is any more improper or burdensome to third party creditors than when fault is considered in connection with any other exculpatory defense under § 46b-37. This claim is without merit.

The plaintiffs also claim that reading a defense of abandonment into § 46b-37 violates public policy. The plaintiffs claim that the policy considerations include creditor protection, the preference for no-fault divorces and the preference for formal legal steps to clearly determine marital status. We are unpersuaded that any of these considerations compel us to disregard the common sense interpretation of § 46b-37 or the common law defense of abandonment.

II

We have considered the plaintiffs’ remaining arguments that the trial court erred in failing to instruct the jury that fault must be determined if the common law defense of abandonment is viable, and failing to instruct the jury that medical expenses are presumed to be reasonable. We note that the plaintiffs took no exception to the charge on the ground that the court had failed to discuss fault as an element of the abandonment defense. “Because the [plaintiffs] took no exception on the point, this claim was ‘not distinctly raised at trial’; State v. Rogers, 199 Conn. 453, 461, 508 A.2d 11 (1986); and we are relieved of any obligation to consider it further. Practice Book § 4185; Atlantic Richfield Co. v. Canaan Oil Co., [202 Conn. 234, 241, 520 A.2d 1008 (1987)]; Kosko v. Kohler, 176 Conn. 383, 389, 407 A.2d 1009 (1978).” Holbrook v. Casazza, 204 Conn. 336, 354, 528 A.2d 774 (1987). Since the verdicts were for the named defendant the claim concerning the failure to instruct the jury that the medical expenses were presumed to be reasonable need not be discussed because any error regarding the amount of damages would be harmless.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-37. (Formerly Sec. 46-10). joint duty of SPOUSES TO SUPPORT FAMILY. LIABILITY FOR PURCHASES AND CERTAIN expenses, (a) All purchase^] made by either a husband or wife in his or her own name shall be presumed in the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase.
      “(b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of its parents; (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both; (5) the reasonable apparel of the wife; and (6) her reasonable support while abandoned by her husband.
      “(c) No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during the separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support.”

       Geraldine Collier and Lester Collier, Jr., were also named as defendants in this action because of their interest in certain real property that the plaintiffs sought to attach.

       Article fifth of the Connecticut constitution provides in part: “(Equal protection. No segregation or discrimination).
      “Section 20 of article first of the constitution is amended to read as follows:
      “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Edward Palmer
    (12785)
    (12786)
    (12787)
    Healey, Callahan, Glass, Covello and Hull, Js.

      Argued October 9, 1987
    decision released January 19, 1988

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

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Frank S. Maco, assistant state’s attorney, for the appellee (state).
   Callahan, J.

By three separate indictments and amended informations, the defendant, Edward Palmer, was charged with the following crimes: three counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A); three counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a); three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a); three counts of sexual assault in the first degree with a firearm in violation of General Statutes § 53a-70a (a); two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4); and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The defendant pleaded not guilty to all the charges and elected a trial by a jury of twelve. Prior to trial, the trial court granted the defendant’s oral motion to consolidate docket numbers 12785, 12786 and 12787 for purposes of trial.

The defendant was found guilty of three counts of kidnapping in the first degree, three counts of unlawful restraint in the first degree, one count of sexual assault in the first degree, two counts of sexual assault in the first degree with a firearm, two counts of robbery in the first degree, and one count of assault in the third degree. The trial court sentenced the defendant on all counts to a total effective sentence of not more than life, plus life, plus fifty-seven years and not less than seventy-seven years with the sentences to run consecutively with any sentence the defendant was then serving.

On appeal, the defendant claims that the trial court erred in: (1) instructing the jury regarding intent in connection with the crime of kidnapping in the first degree; (2) unlawfully imposing consecutive sentences in each case for the lesser included offense of unlawful restraint in the first degree; (3) refusing to strike the testimony of two of the victims whose prior recorded statements given while under hypnosis had been lost by the police and not disclosed during discovery; and (4) admitting the voice identification testimony of two of the victims in violation of the defendant’s fifth, sixth and fourteenth amendment rights under the United States constitution. We find no error.

At trial, the jury could reasonably have found the following facts.

Docket No. 12787

At approximately 9:15 p.m. on November 25, 1980, W was accosted by a man with a gun on McKinley Avenue, in Bridgeport. The assailant covered the victim’s eyes with a scarf, forced her into the trunk of a car at gunpoint, and drove off. Shortly thereafter, the victim was transferred to the trunk of a second car and driven to a building. The victim recalled that, at the building and after being taken out of the trunk of the automobile, she heard the loud sounds of traffic, was walked over a grassy area, a curb, then a sidewalk, and carried up some stairs into the building where she was sexually assaulted. After the assault, the assailant engaged the victim in conversation for a short time and thereafter drove her to the vicinity of Capitol and Madison Avenues where she was let out of the car.

Docket No. 12786

On December 11, 1980, at approximately 2 a.m., 0 arrived at her home in Bridgeport from a downtown restaurant and encountered a man with a silver gun. She was abducted, placed on the floor of a station wagon, driven away, and later transferred to the floor of a second car. She recalled that after being taken from the second car, she was walked over a grassy area, a large curb and then carried into a building where she was sexually assaulted. As in the assault of W, the assailant told 0 to insert his penis into her. After the sexual assault, the assailant lay by the victim’s side and engaged her in conversation for a period of time. The assailant then dressed her, took $8 from her purse and drove her to the corner of Madison and Lincoln Avenues where she was let out of the car.

Docket No. 12785

On December 16, 1980, at approximately 1:30 a.m., K was on her way to a party when, due to icy roads, she decided to go straight home. As she exited the Connecticut turnpike at the Broad Street exit in Stratford, her automobile was bumped from the rear. When she got out of her car she was accosted and then abducted by a man with a silver gun who was wearing a dark mask. The assailant forced the victim into the front seat of her own car, placed tape over her eyes, and drove her car away. When the car stopped, K recalled being walked across a dirt and grassy area, a curb, and then being carried up some stairs into a room. She was also sexually assaulted. As were the other victims, she was instructed to insert her assailant’s penis into her. Later, after carrying her back to her car, the assailant engaged the victim in conversation and again displayed a silver gun. K was driven to Lafayette Street in Bridgeport where the assailant took money from her purse, got out of her car, said goodbye and left on foot.

I

The first claim of error is that the trial court unconstitutionally instructed the jury to presume the existence of the defendant’s intent as it related to the crime of kidnapping in the first degree. The defendant contends that the trial court, in effect, directed a verdict of guilty as to the three counts of kidnapping in the first degree by instructing the jury as follows: “Of course . . . if you find that he actually did inflict some sexual violation or abuse, there could be little question that he intended to.” The defendant argues that the instruction constituted a mandatory presumption in violation of the Sandstrom doctrine. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2540, 61 L. Ed. 2d 39 (1979). We disagree.

It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 441 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “ ‘The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 v. 1.5(1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).’ State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Miller, [202 Conn. 463, 491-92, 522 A.2d 249 (1987)]; State v. Whelan, [200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)]; State v. Widget, 11 Conn. App. 47, 52, 525 A.2d 548 (1987).” State v. Silano, supra.

“In Sandstrom v. Montana, supra, 517-24, the United States Supreme Court held that a jury instruction that ‘the law presumes that a person intends the ordinary consequences of his voluntary acts’ violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. See Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). . . . We have, however, recognized that the rule of Sandstrom must not be oversimplified. State v. Mason, 186 Conn. 574, 582-83, 442 A.2d 1335 (1982); State v. Pina, 186 Conn. 261, 263, 440 A.2d 967 (1982). Sandstrom does not invalidate, for example, the use of an ‘entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.’ Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); see State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985); State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980). ‘A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.’ ” State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 146 (1986); see also State v. Shine, 193 Conn. 632, 644-45, 479 A.2d 218 (1984); State v. Johnson, 185 Conn. 163, 167-69, 440 A.2d 858, aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Vasquez, 182 Conn. 242, 246-48, 438 A.2d 424 (1980).

Upon review of the charge as a whole, we find that it clearly delineated the state’s burden of proof -regarding each and every element of the crime of kidnapping in the first degree, including intent, and that any possible confusion engendered by the challenged portion was overcome by other instructions. The trial court instructed the jury on the afternoon of April 8, 1985, with regard to the general principles that are applicable to all criminal cases. During this portion of its charge, the trial court clearly informed the jury that the state bore the burden of proving each and every element of the crimes charged, and ultimately of proving the defendant’s guilt beyond a reasonable doubt, by repeating the phrase “proof beyond a reasonable doubt” approximately twenty times. The trial court also thoroughly instructed the jury regarding the presumption of innocence that attaches to a criminal defendant. It specifically cautioned the jury that the burden was not on the defendant to prove his innocence. Additionally, the trial court clearly delineated the permissive nature of the jury’s ability to draw reasonable and logical inferences from circumstantial evidence. Just prior to recessing for the day, the trial court instructed the jury generally with regard to intent. This portion of the charge clearly indicated that an inference regarding intent was “permissive” rather than mandatory, and that intent, when it is an element of a crime, must be established by the state by proof beyond a reasonable doubt.

Upon reconvening the next day and prior to charging the jury on the specific elements of the crimes charged, the trial court reminded the jury to recall the general instructions given the previous day and to specifically recall the requirement that the state bore the burden of proof beyond a reasonable doubt as to each and every element that made up the crimes charged. During the trial court’s explanation of the elements of the crime of kidnapping in the first degree, it stated, approximately seven times, that intent was an element of the crime. The court then, a second time, specifically reminded the jury of the instructions on intent given the previous day and again made it clear that all of the essential elements of the crime of kidnapping in the first degree had to be proved beyond a reasonable doubt by the state, and if any one element was not so proven then the jury must return a verdict of not guilty.

We first note that the challenged portion of the trial court’s instruction does not contain the word “presume” that ordinarily triggers the Sandstrom analysis. It must also be noted that this portion of the charge followed the trial court’s instructions on intent and its detailed analysis of the elements of kidnapping in the first degree, and was contained within a general summary of those elements. Additionally, we do not read the challenged sentence of the charge as creating a conclusive presumption of intent as the defendant claims. The court left the actual finding of sexual abuse and the ultimate conclusion to be drawn from that finding to the jury. The sentence did nothing more than suggest to the jury a possible conclusion based on common sense if the jury found that actual sexual abuse had occurred. Sandstrom only prohibits a conclusive or mandatory presumption. See State v. Amarillo, supra. We find no error.

II

The defendant next claims that the imposition of consecutive sentences in each of the three cases for the crimes of kidnapping in the first degree and unlawful restraint in the first degree violates the double jeopardy clause of the United States constitution because unlawful restraint in the first degree is a lesser included offense of kidnapping in the first degree. Additionally, the defendant argues that the convictions and the imposition of multiple punishments for both offenses violate the separation of powers clause of article second of the Connecticut constitution because the legislature did not intend that consecutive sentences be imposed for both crimes. The trial court, he argues, invaded the legislature’s realm when it did so. We disagree.

A

The double jeopardy clause of the fifth amendment to the United States constitution provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This clause “ ‘prohibits not only multiple trials for the same offense but also multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. Frazier, 194 Conn. 233, 237-38, 478 A.2d 1013 (1984).’ State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054 (1985). ‘Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.’ ” State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986); see also State v. Sharpe, 195 Conn. 651, 654, 491 A.2d 345 (1985); State v. Devino, supra, 73-74.

There is no dispute here that the charges of kidnapping in the first degree and unlawful restraint in the first degree arose from the same transaction or occurrence in the case of each of the three victims. Thus, the issue becomes whether these crimes are separate or the same offenses for purposes of double jeopardy. “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); see also State v. Wright, 197 Conn. 588, 593, 500 A.2d 547 (1985); State v. Thompson, supra; State v. Sharpe, supra, 654-55; State v. Devino, supra, 74-75; State v. Goldson, 178 Conn. 422, 425-26, 423 A.2d 114 (1979). “In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” State v. Wright, supra; see also State v. Truppi, 182 Conn. 449, 468, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Goldson, supra, 426.

In the case of State v. Vass, 191 Conn. 604, 469 A.2d 767 (1983), this court addressed, inter alia, the issue of whether the crime of unlawful restraint in the first degree under General Statutes § 53a-95 (a) is a lesser included offense of kidnapping in the second degree under General Statutes § 53a-94. In Vass, the defendant claimed that the trial court erred in refusing to instruct the jury as requested on the elements of unlawful restraint in the first degree as a lesser included offense of kidnapping in the second degree. Id., 616. In applying the second part of the four part test set forth in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), to determine whether it was proper to charge the jury with respect to the alleged lesser included offense, we held: “In the broad terms of the information with which this defendant was charged, it was possible to commit the greater offense of kidnapping without having first committed the lesser of unlawful restraint in the first degree. For that reason, the defendant’s requested charge was unwarranted.” State v. Vass, supra, 617-18. In Vass, we reasoned: “The gravamen of unlawful restraint in the first degree is restraint of another person ‘under circumstances which expose the latter to a substantial risk of injury.’ The gravamen of kidnapping is, however, abduction, without regard to risk of injury.” Id., 617. We find the Vass case controlling.

With the exception of the dates, times and places of the alleged crimes, the wording of the charging instruments as to the victim in each of these cases was identical. The indictments charged the defendant with the crime of kidnapping in the first degree in that the defendant did abduct and restrain each victim with intent to violate or abuse her sexually in violation of General Statutes § 53a-92 (a) (2) (A). The amended informations charged the defendant, inter alia, with the crime of unlawful restraint in the first degree in that he did restrain the victims under circumstances which exposed them to a substantial risk of physical injury, in violation of General Statutes § 53a-95 (a).

For a conviction of the crime of unlawful restraint in the first degree, the state must prove that the defendant restrained each victim under circumstances which exposed her to a substantial risk of physical injury. On the other hand, for a conviction of the crime of kidnapping in the first degree, the state must prove an abduction coupled with a specific intent to violate or sexually abuse the victim. Whether the evidence at trial revealed that the abduction occurred under circumstances also actually likely to expose the victim to a substantial risk of injury was of no moment in determining whether unlawful restraint was a lesser included offense of kidnapping. Our inquiry is limited to the relevant statutes and the charging documents.

Accordingly, we hold that the defendant could have committed the crime of kidnapping in the first degree in each case without having first committed the allegedly lesser included offense of unlawful restraint in the first degree. Thus we find no violation of the double jeopardy clause and, consequently, no error in the trial court’s imposition of consecutive sentences for each of these distinct offenses.

B

The defendant also argues that the imposition of multiple sentences in each of the three cases violated the separation of powers clause of article second of the Connecticut constitution. Specifically, the defendant argues that the legislature did not intend that multiple convictions and punishments be imposed for these particular crimes. The defendant relies on the fact that both crimes are classified under part VII of chapter 952 of the General Statutes, entitled “Kidnapping and Related Offenses.” We are unpersuaded.

The mere fact that two distinct crimes are contained within the same part or under the same chapter or heading of the penal code does not, by itself, preclude simultaneous convictions of each crime and the imposition of consecutive sentences. See State v. Boucino, supra; State v. Devino, supra; State v. Vass, supra. We cannot divine that by the placement of the two statutes the legislature intended to restrict the power of the trial court to impose multiple sentences for distinct crimes. The legislature specifically authorized the imposition of multiple and consecutive sentences under General Statutes § 53a-37, without reference to whether the crimes were located in the same chapter. Accordingly, we hold that the defendant simply has failed to demonstrate a violation of the separation of powers clause of article second of the Connecticut constitution.

Ill

Next the defendant claims that the trial court erred in refusing to strike the trial testimony of the victims K and W, whose recorded statements given while under hypnosis were lost while in the possession of the Bridgeport police department. The defendant argues that the degree of the state’s culpability in failing to produce or disclose the recorded statements and the resulting prejudice to the defendant “were enormous.”

The following facts are relevant to this issue: On November 26, 1980, and December 19, 1980, respectively, W and K gave sworn written statements to the police regarding their abductions and assaults. On December 19, 1980, K was taken to the office of Dr. Gerald Winter, a hypnotist, by Officer Nancy Sirois and Detective Robert Biroscak in the hope that, while under hypnosis, she could recall additional information about her assailant. W was also taken to Winter’s office some time later by Biroscak to be placed under hypnosis, but the record is unclear whether this was done for the purpose of seeking information relevant to the police investigation or for therapeutic reasons. Nevertheless, tape recordings of both sessions were made by Winter who turned the cassette tapes over to the Bridgeport police department.

In August, 1981, the defendant filed a “Motion for Production at Trial” and a “Motion for Discovery and Inspection,” which, the state conceded, encompassed the disclosure and production of the tapes. The state filed a partial compliance with these motions on March 22, 1983, and then a supplemental compliance on March 21, 1985. Neither disclosure made reference to the tapes or to the fact that the hypnotic sessions had taken place. It was not until the second day of jury selection that the defendant first became aware of the hypnosis of K and W and the existence of the cassette tapes.

Subsequently, prior to the commencement of trial, the defendant moved to suppress the testimony of K and W on the basis of the state’s failure to disclose the taped hypnotic statements. The trial court denied the motions to suppress, but limited the scope of the victims’ testimony. After the direct examination of K and W, the defendant moved to strike their testimony on the same ground on which he had moved to suppress. Both motions were denied.

In cases involving the loss of tape recorded statements of a witness, we have repeatedly “employed a balancing test whereby the imposition of sanctions for nondisclosure ‘ “depends in large measure upon the extent of the Government’s culpability for failing] to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the other.” ’ State v. Shaw, [185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed 2d. 312 (1982)], quoting United States v. Miranda, 526 F.2d 1319, 1329 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976); see also State v. Milum, [197 Conn. 602, 617, 500 A.2d 555 (1985)]; State v. Myers, [193 Conn. 457, 467, 479 A.2d 199 (1984)]. Since there exists no constitutional right of access to the statements of a witness for the prosecution, the burden of showing prejudice rests with the defendant. State v. Vessichio, 197 Conn. 644, 662, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Milum, supra, 616.” State v. Mailings, 202 Conn. 1, 7-8, 519 A.2d 58 (1987).

Having made an extensive review of the record, we are unable to find that the trial court erred when it con-eluded that the tape recorded statements of the two victims “were inadvertently lost through carelessness by the police officials and that the existence of those items may not have been known to the state’s attorney until shortly before trial.” In both instances the cassette tapes were given by Winter to Biroscak, who, in turn, gave them to Chief Inspector Anthony Fabrizi. The tapes remained on Fabrizi’s desk for a substantial period of time, after which Fabrizi recalls giving the tapes to one of his detectives some time in 1983 or 1984 to be placed in the evidence room. The first time that the Bridgeport police department was required to produce the tapes was in late February or early March of 1985 when the state’s attorney’s office requested them for trial. After the request, Fabrizi, unable to locate the tapes immediately, searched his desk, reviewed the evidence receipt books from December, 1980, to February, 1985, and ordered a complete search of the three evidence repositories used by the police department. The tapes were never found. While this record reveals the total neglect of standard police procedures regarding the handling and preservation of evidence, the defendant has failed to present any concrete proof that the loss of the tapes resulted from anything other than negligence or inadvertence.

Further, the record does not contain evidence that the state’s attorney’s office knew of the existence of the tapes or purposely concealed them from the defendant. The report of Stratford police officer Sirois revealed that the cassette tape of K’s hypnotic session was in the possession of the Bridgeport police department. It is unclear, however, whether the state’s attorney’s office obtained that report prior to 1985. Both Biroscak and Fabrizi stated that, while they believed the Sirois report was part of their file that normally would have been sent to the state’s attorney’s office at the beginning of the prosecution, they had no specific recollection that this was the case. Fabrizi also stated that he did not personally notify the state’s attorney of the existence of the tapes or provide him with copies. Even assuming the Sirois report was furnished the state’s attorney by the Bridgeport police department, there is no evidence that the state intentionally secreted the tapes from the defendant.

Where, as here, the loss of tapes was the result of negligence, the question then becomes to what extent, if any, the defense was prejudiced by their loss. State v. Myers, supra, 469; State v. Shaw, supra.

As a result of the suppression hearing which was held prior to the taking of evidence, the trial court ordered the exclusion of the testimony of the two victims regarding any matter that could not be established or corroborated by prehypnotic statements or evidence. Thus the court excluded testimony as to any information concerning identification K recalled solely as a result of hypnosis. W’s recollection of a conversation with her sister that she remembered following the hypnotic session was also excluded. The trial court further allowed the defendant to introduce into evidence the facts that the hypnotic sessions had occurred, that the tapes of those sessions had been in the possession of the Bridgeport police department for a long period of time, and that they were lost and unavailable for trial. Clearly, the state received no benefit from whatever minor improvement in the victims’ memories was produced as a result of hypnosis.

Further, the defendant has failed to demonstrate any prejudice arising from his claimed inability to impeach the two victims with alleged inconsistencies possibly contained in their recorded hypnotic statements. The testimony at the suppression hearing revealed only minor additions to K’s memory, not inconsistencies, gleaned from her hypnotic session, and virtually nothing different in W’s. Both victims testified at trial and were subject to full cross-examination. The defendant utilized the sworn statements of each that were made prior to the hypnotic sessions to attempt to impeach the victims. The police officers who handled the tapes and who were present at the hypnotic sessions testified at trial and were also subject to full cross-examination.

Under the circumstances, we find both that the defendant has failed to demonstrate that he was prejudiced by the loss of the tapes and that the trial court was well within the proper exercise of its broad discretion when it denied the defendant’s motions to strike the testimony of K and W. State v. Santangelo, 205 Conn. 578, 588-89, 534 A.2d 1175 (1987); State v. Mullings, supra, 10.

IV

The defendant’s final claim is that the trial court erred in admitting the voice identification testimony of K and O on the ground that their identifications of the defendant’s voice were obtained in violation of his rights under the fifth, sixth and fourteenth amendments to the United States constitution. Specifically, the defendant contends that the police should not have interrogated him for the purpose of obtaining a voice identification, without having first advised him of his Miranda warnings and without having had his counsel present. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He argues, therefore, that the voice identification testimony was the fruit of an unlawful interrogation and improperly admitted at trial. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We are unpersuaded.

On March 10,1981, the defendant was arrested after having been apprehended in the act of burglarizing the old county courthouse on Golden Hill Street in Bridgeport. The ballistics tests of a gun found on the defendant at the time of the burglary matched those of a gun fired at a police decoy involved in an attempt to apprehend the perpetrator of a series of bumper rapes in Bridgeport. The defendant was arraigned on the burglary charge on March 10 and was released the following day after having posted bond. On March 12,1981, the defendant was again arrested and arraigned on a charge of having, at an earlier date, robbed a University of Bridgeport security guard of, among other things, his pistol.

During the execution of two search warrants of the defendant’s home, the police brought the three victims to the house to attempt to determine if they recognized it. Thereafter, each was brought to the police station separately to listen to “a voice.” K immediately and positively identified the defendant’s voice as that of her assailant. O was unable to make a positive identification of the defendant’s voice but she did note a number of similarities between the defendant’s voice and her assailant’s. K and O testified at trial as to their respective voice identifications.

A

Miranda Warnings

The defendant contends that, at the time he spoke for the purpose of having the victims attempt to identify his voice, he was entitled to have been given Miranda warnings. Since he was not, he argues that the identifications are inadmissible. We disagree.

“ ‘Before one suspected of the commission of a crime is entitled to the warnings constitutionally required by Miranda, two conditions are required: the suspect must be in the custody of law enforcement officials . . . and the suspect must be subjected to interrogation.’ (Citations omitted.) State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985); see State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1042, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).” State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); see also State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986). There is no dispute here but that the defendant was in custody, albeit on unrelated charges. Thus, the issue was whether the defendant was subjected to “interrogation.”

“ ‘ “Interrogation” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.’ Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The term encompasses not only express questioning, but also ‘any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ Id., 301; see State v. Graham, 186 Conn. 437, 443, 441 A.2d 857 (1982).” State v. Doehrer, supra, 647; see also State v. Vitale, supra. The record before this court fails to reflect a measure of compulsion beyond that inherent in custody itself, nor does it reflect conduct by the police designed to elicit incriminating responses.

K was asked by Fabrizi if she would listen to a voice. She agreed and accompanied Biroscak to a door in a hallway outside a room. She testified, both at trial and at the suppression hearing, that she heard three voices in conversation emanating from the room. She characterized the conversation as being “very casual.” Fabrizi, who had arranged the procedure, testified that he had instructed two detectives to engage the defendant in strictly casual conversation. One of the detectives involved characterized the conversation as being “very low key” with no discussion of the crimes involved. Biroscak also characterized the conversation as just “simple, normal, general conversation” about the defendant’s job and the like. Later, 0 also was asked by Fabrizi to listen to a voice. She accompanied Fabrizi and Detective Pettitie to a point outside a room, whereupon Fabrizi went inside, engaged the defendant in casual conversation and asked him if he wanted a hamburger or a coffee.

Where, as here, the record indicates what appears to be a general conversation between the police and a defendant in custody, the burden rests initially with the defendant to demonstrate that the general conversation amounted to custodial interrogation. State v. Doehrer, supra, citing United States v. Charles, 738 F.2d 686, 695 n.11 (5th Cir. 1984); see United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir. 1977); see also State v. Vitale, supra, 409. The defendant has failed to do so. The defendant has failed to demonstrate that any questions asked or statements made by the police were reasonably likely to, or did in fact, elicit an incriminating response. Even compelling a suspect to speak or to give a voice exemplar solely to measure the physical properties of his or her voice is neither testimonial nor communicative in nature, and thus does not implicate an accused’s fifth amendment right against self-incrimination. See United States v. Dionisio, 410 U.S. 1, 5, 7, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); Gilbert v. California, 388 U.S. 263, 267, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States v. Wade, 388 U.S. 218, 221-23, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); United States v. Campbell, 732 F.2d 1017, 1021 (1st Cir. 1984). Miranda warnings were therefore not required here.

The trial court did not err in refusing to suppress the voice identification testimony of K and O on fifth amendment grounds.

B

The defendant also argues that, once he had been arrested and arraigned on the charge of robbing the security guard, absent a waiver, any questioning without the presence of an attorney violated his sixth and fourteenth amendment rights to counsel.

As this court has consistently held, a defendant’s right to counsel, under the sixth amendment to the United States constitution or its state constitutional counterpart, attaches only “ ‘ “ ‘at or after the initiation of adversarial judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information or arraignment.’ Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).” State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983).’ ” State v. Morrill, 197 Conn. 507, 531-32, 498 A.2d 76 (1985), quoting State v. Falcon, 196 Conn. 557, 560, 494 A.2d 1190 (1985). At the time of the voice identifications in March, 1981, the defendant was simply a suspect during the investigatory stages of the three sexual assault cases presently before this court. No adversarial judicial criminal proceedings had yet been initiated concerning these charges, and, in fact, the defendant was not arrested on them until July, 1981, months after the voice identifications. The fact that the defendant was in custody for unrelated crimes does not affect the time at which his right to counsel attached on these sexual assault charges. See State v. Morrill, supra, 532; State v. Biller, 190 Conn. 594, 615-16, 462 A.2d 987 (1983); State v. Vitale, supra, 232-33; see also United States v. Grego, 724 F.2d 701, 702-703 (8th Cir. 1984); United States v. DeWolf, 696 F.2d 1, 3 (1st Cir. 1982).

We hold, therefore, that the pre-arrest, pre-arraignment, general conversations engaged in by the police and the defendant in connection with the voice identifications by the victims did not implicate the defendant’s right to counsel under the sixth and fourteenth amendments to the United States constitution. See Passman v. Blackburn, 652 F.2d 559, 565-66 (5th Cir. 1981), cert. denied, 455 U.S. 1022, 102 S. Ct. 1722, 72 L. Ed. 2d 141 (1982); Felix v. Cardwell, 404 F. Sup. 165, 166 (D. Ariz. 1975). The trial court did not err when it refused to suppress the voice identifications on the ground that the defendant’s right to counsel had been violated.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-92 (a) (2) (A) provides: “kidnapping in the first degree, (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 . . . .”

       General Statutes § 53a-95 (a) provides: “unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury. . . .”

       General Statutes § 53a-70 (a) provides: “sexual assault in the first degree: class b felony: one year not suspendable. (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 (Rev. to 1979) § 53a-70a (a) provides: “sexual assault IN THE FIRST DEGREE WITH A FIREARM: CLASS B FELONY; ONE YEAR NOT suspendable. (a) A person is guilty of sexual assault in the first degree with a firearm when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, rifle, shotgun or other firearm. No person shall be convicted of sexual assault in the first degree and sexual assault in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-134 (a) (4) provides: “ROBBERY IN THE first DEGREE: CLASS B felony, (a) 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; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.”

       General Statutes § 53a-61 (a) (1) provides: “assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       In Docket No. 12785, the defendant was charged with having committed the following crimes against K, on or about December 16, 1980: (1) kidnapping in the first degree; General Statutes § 53a-92 (a) (2) (A); (2) unlawful restraint in the first degree; General Statutes § 53a-95 (a); (3) sexual assault in the first degree; General Statutes § 53a-70 (a); (4) sexual assault in the first degree with a firearm; General Statutes § 53a-70a (a); and (5) robbery in the first degree. General Statutes § 53a-134 (a) (4).

       In Docket No. 12786, the defendant was charged with having committed the same crimes against O, on or about December 11, 1980, as set forth in footnote 7, supra.

       In Docket No. 12787, the defendant was also charged with having committed crimes (1) through (4) as set forth in footnote 7, supra, and the additional crime of assault in the third degree; General Statutes § 53a-61 (a) (1); against W, on or about November 25, 1980.

       At trial the defendant properly took exception to this portion of the court’s charge and argued that a violation of Sandstrom had occurred.

       The trial court instructed the jury as follows regarding intent:
      “Now, shortly, I will discuss with you the particular crimes charged. You will note that at least one or more of these charges, it will be the obligation of the State to prove that the defendant acted with a particular intent during the commission of the crime. A person acts intentionally—I’ll remind you of this again—with respect to conduct or a circumstance described by Statute defining an offense when his conscious objective is to cause such a result or engage such conduct.
      “Intent, ordinarily, cannot be proved directly and usually must be established by circumstances. This is because there exists no way of scrutinizing with certainty the state of mind of a human being. But you may infer intent from the surrounding circumstances, what an individual does or fails to do, whether it be physical, verbal or written conduct, they indicate an intent. You may infer but you are not obligated to, for example, that the defendant intended the necessary and natural consequences of his own actions. You may also consider all other facts and circumstances, all of the credible evidence properly before you in this case which may aid in determining the state of mind of the defendant. Ultimately, it will be for you and you alone as members of a sworn jury to decide from the evidence believed by you whether the State has proved in any instance, beyond a reasonable doubt, that the defendant possessed at the time and place of the alleged commission of any crime charged, the reckless intent necessary to establish the commission of such offense.
      “The burden of proving the defendant’s intent, when that is required to be established as an element, like the proof of every other element, is always upon the State beyond a reasonable doubt.”

       The challenged portion of the trial court’s instruction is contained within the court’s summary of the elements of kidnapping in the first degree as follows:
      “First, the defendant, Edward Palmer, must have been the perpetrator, the person who acted against the victim. Secondly, the defendant must restrain the victim. The word restrain, in this context, means that the defendant restricts the alleged victim’s movements intentionally and unlawfully in such a manner as to interfere substantially with her liberty by moving her from one place to another without her consent or by confining her in one place for any period of time, either where the restriction begins or in another place to which she has been moved without her consent. And thirdly, you must find that the defendant abducted the victim, that is, that the defendant must restrain the victim with the intent to prevent her liberation, either by secreting or holding her in a place where she is not likely to be found or by using or threatening the use of physical force or intimidation. If you find that the defendant restrained, in this case, [W], and used or threatened the use of a gun against her or hit her or held her in a place where she was not likely to be found with the intent to prevent her liberation, any one of those and this element of the crime is proven. And fourth, the defendant must abduct the vietim and restrain her with the intent to violate or abuse her sexually. And in this respect, as I have indicated, the words violate or abuse sexually have no technical meaning. You’re to attach to them the ordinary, common meaning that you would give to them in the ordinary affairs of your life. If you give credit to the testimony of [W] and find that testimony established with regard to sexual abuse beyond a reasonable doubt, then that element would be satisfied.
      “It’s not necessary that the actual sexual violation or abuse be proved so long as you believe that the defendant intended to inflict the same and restrained [W] with such intent. Of course, as I said, if you find that he actually did inflict some sexual violation or abuse, there could be little question that he intended to. But even if he did not and you believe the facts indicate that he intended to, although he never consummated the act, then the statutory essential is met for conviction.
      “If you find all of these elements, every single one of them proven by the State beyond a reasonable doubt, then you would be warranted in returning a verdict of guilty of kidnapping in the first degree. If you find the State has failed to prove any one of those elements, although it may very well have proved all of the other elements beyond a reasonable doubt, then you cannot return a verdict of guilty. Your verdict must be not guilty, under those circumstances.”

       “[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.
      “(b) Kidnapping in the second degree is a class B felony.”

       Article second of the Connecticut constitution provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

       “[General Statutes] Sec. 53a-37. multiple sentences: concurrent or consecutive, minimum term. When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”

       The record is in conflict as to whether the three victims were asked if they wanted to listen to “a” voice or to “the suspect’s” voice. Even if the police here asked the victims to listen to a voice of a suspect for identification purposes, that does not automatically violate due process or render the identification procedures unnecessarily suggestive. See State v. Austin, 195 Conn. 496, 500, 488 A.2d 1250 (1985); State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

       Although it has not been raised as an issue in this appeal, the trial court suppressed the voice identification made by W and precluded both counsel from making any references to it during W’s testimony at trial.


author: Shea, J.

text:
    Town of Trumbull et al. v. State of Connecticut et al.
    (13138)
    Shea, Callahan, Glass, Covello and Hull, Js.

      Argued November 13, 1987
    decision released January 26, 1988

      James E. Rice and George N. Nichols, with whom, on the brief, were J. Charles Mokriski and Robert S. Golden, Jr., for the appellants-appellees (defendants).

      Stewart I. Edelstein, with whom, on the brief, was Mark Anastasi, for the appellees-appellants (named plaintiff et al.).

      Martin S. Echter, deputy corporation counsel, for the appellee (intervening plaintiff city of New Haven).
   Shea, J.

In this declaratory judgment action, the plaintiff municipalities of Trumbull and Bridgeport sought a determination of (1) whether the defendant public utility companies are entitled to reimbursement for the cost of relocating public service installations situated in a street when ordered to move them by a municipality intending to construct sewers or other pollution abatement facilities, (2) whether the amount of such reimbursement should be calculated in accordance with a formula approved by the state department of environmental protection (DEP), and (3) whether the DEP is obliged to pay 15 percent of the share of the relocation costs to be borne by the municipality. Pursuant to General Statutes § 22a-470, the action was referred to a state referee, Hon. George A. Saden, who reported his findings and recommendations to the trial court, Jacobson, J. In accordance with the recommendations of the referee, the trial court rendered a declaratory judgment (1) that the defendants were entitled to reimbursement for utility relocations occurring after June 19,1979, pursuant to General Statutes § 22a-470, (2) that the DEP formula should be used in calculating the amount of reimbursement to the utility companies, and (3) that it would be inappropriate to render a declaratory judgment concerning the share of the relocation costs to be paid by the DEP, “since the law already provides for such reimbursement if proper conditions have been satisfied.”

The defendants have appealed from the judgment, claiming error in the decision that the DEP formula should be used for determining the portion of their relocation costs to be reimbursed by the towns and in several related rulings. The towns have cross appealed, claiming error in the decision that the defendants are entitled to reimbursement under § 22a-470. The refusal of the court to render a declaratory judgment concerning the share of relocation costs to be borne by the DEP has not been challenged. We find no error in either the appeal or the cross appeal.

The parties presented a written stipulation of the pertinent facts to the state referee. In 1975, the town of Trumbull and the city of Bridgeport began to plan a joint sewer treatment system, known as the Bridgeport-Trumbull Interceptor Sewer Project, in order to extend underground sanitary sewer lines from Trumbull through Bridgeport. An application for funding of the project was submitted to the federal environmental protection agency (EPA) through the appropriate state agency, the DEP. Under the Federal Water Pollution Control Act of 1972; Pub. L. No. 92-500, 33 U.S.C. § 1281 et seq. (1976); a grant of federal funds for the project equal to 75 percent of allowable project costs was available and the EPA approved the grant application in June, 1977. Under General Statutes § 22a-439, the DEP may grant to a municipality for a sewer construction project eligible for federal funding an additional 15 percent of the cost of the project from state funds, leaving the municipality to bear the remaining 10 percent. On October 20, 1980, the DEP agreed to provide 15 percent of the cost of the Bridgeport-Trumbull Interceptor Sewer Project to be constructed in accordance with plans and specifications which the DEP had approved on August 22, 1977.

Construction of the sewer project began after the EPA had approved the grant application in June, 1977. On September 27, 1978, two of the defendants, a gas company and a water company, were ordered to relocate their mains, but they appealed this order pursuant to General Statutes § 16-235 to the public utilities control authority (PUCA), the predecessor of our department of public utility control (DPUC). The PUCA, on June 29, 1979, sustained the appeal, declaring the city of Bridgeport responsible for the relocation costs and ordering the utility companies to make no further relocations without receiving reimbursement pursuant to § 22a-470, which had been enacted and became effective on June 19, 1979. The city appealed from this order, but the appeal was withdrawn pursuant to a stipulation executed by the city and the two companies, to which the town of Trumbull consented. The DPUC approved this settlement agreement on April 12,1983, and modified its previous order concerning relocations so that it would not apply to any relocation of facilities made prior to June 19, 1979, the effective date of § 22a-470.

After the PUCA had issued its order prohibiting relocations without reimbursement by the municipalities, a dispute arose over the formula to be used in determining the amount to be paid to the utility companies. The municipalities proposed to use a formula approved by the DEP while the companies insisted upon a formula devised by the department of transportation (DOT) that had been used for many years in calculating the reimbursement of utility companies pursuant to General Statutes § 13a-126 for relocating their facilities as a result of highway construction projects. On October 20, 1981, the DPUC issued a decision ordering the companies to proceed with the relocations as ordered by the city of Bridgeport on the basis of an agreement of the municipalities to reimburse them in accordance with the DEP formula and also to pay any additional amounts that might be required by the ruling of the Superior Court in this action, which had been filed on June 29, 1986. The relocation work has proceeded under this arrangement.

I

When the plaintiff municipalities filed the original complaint in this action on May 15, 1981, the prayer for relief sought a declaratory judgment only with respect to the proper formula to be used in determining the “equitable share” of the relocation costs to be reimbursed to the utility companies. Not until January 30, 1985, when a motion to amend the complaint for the third time was filed, did the plaintiffs seek a determination of whether the statute relied upon to support the defendants’ claims for reimbursement, § 22a-470, effective on June 19, 1979, was applicable to the Bridgeport-Trumbull Interceptor Sewer Project, for which a federal grant application had been approved in June, 1977. The state referee concluded that, because the federal grant application for the project had been approved in June, 1977, prior to the enactment of § 22a-470, the statute could not be applied retroactively to allow reimbursement to the utility companies even for work performed after the statute had become effective. He found, nevertheless, that the municipalities had contracted to reimburse the utility companies pursuant to the statute and thus had waived its retroactive application. In attacking this conclusion on appeal, the plaintiffs maintain (1) that any such waiver was inoperative for lack of consideration, (2) that a municipality cannot effectively waive its immunity from liability for the performance of governmental acts, and (3) that it is contrary to public policy to uphold such a waiver.

The utility companies have presented several alternative grounds to support the determination that they are entitled to be reimbursed pursuant to § 22a-470 for relocations occurring after its enactment, including an attack upon the referee’s conclusion that such reimbursement would result in retroactive application of the statute. We need not consider these grounds, however, because we have determined that the referee’s conclusion of contractual “waiver” is adequately supported by the evidence. The trial court, similarly, found it unnecessary to consider the referee’s conclusion that the plaintiffs’ sewer project would have been exempt from the reimbursement provisions of § 22a-470 but for the agreement of the municipalities to make such reimbursement.

In five written agreements with individual utility company defendants during the period June 10, 1982, to March 30, 1985, the municipalities agreed to reimburse them for relocations pursuant to § 22a-470, subject to the ultimate determination of the appropriate formula in this litigation. On October 8, 1980, the city engineer of Bridgeport sent letters to three utility companies concerning a meeting to discuss relocation eligibility for federal funding in which he indicated that payment by the municipalities would be made pursuant to the DEP formula. When the DPUC, on October 20, 1981, revised its previous order to allow utility relocations to proceed, subject to the determination of the appropriate formula for reimbursement in this action, it expressly relied upon the agreement of the municipalities “to reimburse the companies on an ongoing basis according to the DEP formula and to pay any additional sums if required by the ruling of the Superior Court.” There is ample evidence to support the finding of the referee, adopted by the trial court, that the municipalities had “entered into contracts wherein they agreed the utilities were entitled to reimbursement” under § 22a-470 for relocation work performed after its effective date.

Although the term “waiver” has been used by the referee as well as the utility companies in characterizing this claim based upon the promises contained in various agreements with the municipalities, the waiver found is a necessary consequence of the contractual provisions requiring the municipalities to pay for relocations in accordance with the statute. It is not an implied waiver but follows inescapably from the finding that the municipalities have agreed to make reimbursement in accordance with the statute. For this reason we need not consider whether waiver analysis may be applied to a contemporaneous provision of a contract or whether this kind of waiver would require consideration for its validity, apart from that which supports the contracts. “There is no consideration problem because that promise is supported by the same consideration as supports the other promises of the [contract].” J. Calamari & J. Perillo, Contracts (3d Ed.) § 11-30, p. 492; see E. Farnsworth, Contracts § 8.5.

The municipalities contend that there was no consideration given for the interim agreements for performance of the work containing their promise of reimbursement under the statute or for the agreement pursuant to which the DPUC order prohibiting the utility companies from proceeding with relocations was modified. The mutual promises contained in these agreements, from which the municipalities have obtained the benefit of proceeding with their sewer project without the delay that otherwise would have attended the resolution of their dispute, adequately satisfied the consideration requirement. “An exchange of promises is sufficient consideration to support a contract.” Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531, 218 A.2d 526 (1966).

The case relied upon by the plaintiffs in arguing that a municipality cannot waive its immunity from liability for the performance of governmental acts; Gauvin v. New Haven, 187 Conn. 180, 445 A.2d 1 (1982); does not support that proposition. Furthermore, the doctrine of governmental immunity is not a restriction upon the authority of a municipality to enter into a contract within the scope of its corporate powers. See Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 123, 348 A.2d 651 (1974).

The claim that it is contrary to public policy to infer a waiver of the municipalities’ belated claim that the statute should not be applied to their sewer project, which had commenced before its effective date, is similarly without merit. There is no public policy against the settlement of a disputed claim by any party, whether or not a municipality, on terms deemed advantageous at the time, even though the compromise may later, with the benefit of hindsight, appear improvident. Whether the resolution of the dispute accepted by the municipalities in their agreement with the utility companies was wise or foolish we need not determine.

II

Under the provisions of § 22a-470, a company ordered to relocate or remove a public service facility from a street must comply with such order, but “an equitable share of the cost of such readjustment, relocation or removal of said public service facility, including the cost of installing and constructing a facility equal in capacity in a new location, shall be borne by the municipality.” The statute further provides that “[i]n establishing the equitable share of the cost to be borne by the municipality, there shall be deducted from the cost of the readjusted, relocated or removed facilities a sum based on a consideration of the value of materials salvaged from existing installations, the cost of the original installation, the life expectancy of the original facility and the unexpired term of such useful life.” Virtually identical language is used in General Statutes § 13a-126 in setting forth the method for calculating the “equitable share” to be borne by the state of the cost of relocating public service facilities when necessitated by the construction of a state highway. Under that statute, which long preceded § 22a-470, the DOT has for many years reimbursed utility companies in accordance with a formula that ignores the factor of 'inflation in determining the value of the expired useful life of a facility that has been removed or relocated.

The DEP has refused to follow the DOT formula in deciding the amount of the “equitable share” of the cost to be reimbursed pursuant to § 22a-470, despite the use of language similar to that contained in § 13a-126. The DEP has devised a formula that in effect translates the original cost of the installation into contemporary dollars. The practical result of the DEP formula is that the municipalities will be obliged to pay much less to the utility companies for relocations than the state has been paying under the DOT formula in connection with highway construction.

The utility companies recognize that the DEP, and not the DOT, has jurisdiction to apply and interpret § 22a-470 in processing applications for sewers under General Statutes § 22a-439. See General Statutes §§ 22a-424 (l), 22a-439 (c). They maintain, nevertheless, that the DOT formula must be followed (1) because it represents a long-standing administrative interpretation of § 13a-126, a statute within the jurisdiction of the DOT, from which the legislature appears to have extracted the language used in § 22a-470 to define the “equitable share” of relocation costs to be borne by the municipalities, and (2) because the DEP injects into the calculation of “equitable share” an element, inflation, that is not mentioned in the statute.

This court has recognized the well established principle that great deference should be aceorded to the construction given a statute by the agency charged with its enforcement. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 129, 527 A.2d 672 (1987); Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983). This rule is not helpful to the utility companies, however, because the DOT is not responsible for the administration of § 22a-470. The DEP has that responsibility.

The companies also rely upon the circumstance that the legislature has made several amendments to § 13a-126 since the DOT formula has been in effect, none of which has modified the interpretation of the statute embodied in that formula. See Public Acts 1967, No. 671; Public Acts 1976, No. 76-133; Public Acts 1978, No. 78-280, § 2; Public Acts 1982, No. 82-472. These amendments, however, were unrelated to the statutory definition of “equitable share” and, in addition to technical changes necessitated by court reorganization, merely revised other portions of the statute with respect to the kinds of projects and utility installations to which it applied. It is fanciful to presume that the legislature in enacting them gave any consideration to the manner in which the DOT had been implementing the statutory definition of “equitable share.” There is no legislative history to suggest that the General Assembly was even aware of the DOT formula at the time of these amendments.

The companies rely principally on the “plain wording” of § 22a-470, which they maintain precludes consideration of inflation as an element in determining the amount of reimbursement for relocations. In specifying the method for calculating the municipality's “equitable share” of the cost of relocation, including the cost of the new installation, the statute specifies that from the total cost there shall be deducted “a sum based on a consideration of the value of materials salvaged from existing installations, the cost of the original installation, the life expectancy of the original facility and the unexpired term of such useful life.” The statute mentions the various factors that are to be considered in reaching the “equitable share” goal, but does not set forth a mathematical formula precisely specifying how these factors are to be applied in making the calculation. The evident purpose of the statute is to reimburse the utility companies fully for the cost of relocation, but not to confer upon them, without allowance therefor, the benefit of receiving a new facility with a far greater remaining useful life expectancy than that which has been replaced. Any formula complying with the statute must be based upon a consideration of the factors specified in the statute but must also satisfy the requirement that the share of the cost to be borne by the municipality be “equitable.” If the application of a particular formula results in a windfall to a utility company at the expense of a municipality, that formula does not achieve the statutory objective of imposing only an “equitable share” of the cost of relocation upon the municipality.

It is quite apparent that to ignore the effect of inflation, as the DOT formula does, in determining a municipality’s share of the cost of relocating a facility that was installed many years ago, when the cost of such an installation was a fraction of its present cost, must inevitably result in substantial overpayments to utility companies and correspondingly excessive burdens upon municipalities. This inequity results from the failure to evaluate the additional useful life that the new facility has added to the remaining useful life of the replaced facility in accordance with the current cost of the new facility. To use historical costs of facilities installed many years ago in the same calculation with current costs of replacing those facilities results in a distortion comparable to adding apples and oranges.

The utility companies do not advance any arguments that seriously militate against the referee’s characterization of the amount of their reimbursement under the DOT formula as a windfall. They claim, nevertheless, that the absence of any reference to inflation in § 22a-470 as one of the factors to be taken into consideration precludes its use in the DEP formula. They assume that the “cost of the original installation,” referred to in the statute as one of the factors to be considered, is equivalent to the “original cost of the installation.” The phrase “cost of the original installation” does not preclude the translation of that cost into current dollars, as achieved by the inflation adjustment used in the DEP formula, so long as the result more closely fulfills the legislative intention to impose no more than an “equitable share” of the relocation costs upon the municipalities. Common sense, after all, is a highly significant guide to statutory interpretation. We agree with the referee and the trial court that the DEP formula may properly be applied to measure the “equitable share” of relocation costs that § 22a-470 allocates to the municipalities.

Because we have concluded that the trial court did not err in holding that the DEP formula could appropriately be applied in calculating the amounts to be reimbursed under § 22a-470, we need not consider the claim of error relating to the admission of a letter from EPA officials for the purpose of showing that they would approve the use of the DEP formula, but not the DOT formula, in calculating the costs of the project for the purpose of the federal grant to the municipalities. Whether this additional ground, upon which the referee and trial court partly relied, would provide an additional ground to affirm the judgment is a question we leave for another day.

There is no error.

In this opinion the other justices concurred.

       During the trial court proceedings, the city of Norwalk intervened as a plaintiff but withdrew prior to judgment. The city of New Haven also intervened as a plaintiff and has participated in this appeal as well as in the trial court proceedings. New Haven has briefed and argued only the issue of the formula to be used in calculating the amount of reimbursement to be made to a utility company for relocating its facilities in the course of construction of a municipal sewer project.

       The defendant utility companies are The Southern Connecticut Gas Company, The United Illuminating Company, Southern New England Telephone Company, Bridgeport Hydraulic Company and Connecticut Water Company. The state department of environmental protection was also a defendant in the trial court, but has not been involved in this appeal. The federal environmental protection agency was originally named as a party defendant, but the action was later withdrawn as to that defendant.

       “[General Statutes] Sec. 22a-470. (Formerly Sec. 25-54yy). RELOCATION OR REMOVAL OF PUBLIC SERVICE FACILITIES AS NECESSARY FOR CONSTRUCTION OF MUNICIPAL SEWER OR POLLUTION ABATEMENT FACILITIES. Whenever a municipality obtains a grant under this chapter for the construction, rebuilding, expansion or acquisition of sewers or other pollution abatement facilities and where the carrying out of such construction, rebuilding, expansion or acquisition requires the temporary or permanent readjustment, relocation or removal of a public service facility from a street or public right-of-way, the municipality shall issue an appropriate order to the company owning or operating such facility and such company shall permanently or temporarily readjust, relocate or remove such facility promptly in accordance with such order, provided an equitable share of the cost of such readjustment, relocation or removal of said public service facility, including the cost of installing and constructing a facility equal in capacity in a new location, shall be borne by the municipality. Such equitable share shall be one hundred per cent of such cost after the deductions hereinafter provided. In establishing the equitable share of the cost to be borne by the municipality, there shall be deducted from the cost of the readjusted, relocated or removed facilities a sum based on a consideration of the value of materials salvaged from existing installations, the cost of the original installation, the life expectancy of the original facility and the unexpired term of such useful life. For the purposes of determining the equitable share of the cost of such readjustment, relocation or removal, the books and records of the company shall be available for the inspection of the municipality. When any facility is removed from a street or public right-of-way to a private right-of-way, the municipality shall not pay for such right-of-way. If the municipality and the company owning or operating such facility cannot agree upon the share of the cost to be borne by the municipality, either may apply to the superior court for the judicial district in which the street or public right-of-way is situated or, if the court is not in session, to any judge thereof for a determination of the cost to be borne by the municipality, and such court or judge after causing notice of the pendency of such application to be given to the other party, shall appoint a state referee to make such determination. Such referee, having given at least ten days’ notice to the parties interested of the time and place of the hearing, shall hear both parties, shall take such testimony as such referee may deem mater rial and shall thereupon determine the amount of the cost to be borne by the municipality and forthwith report to the court. If the report is accepted by the court, such determination shall, subject to right of appeal as in civil actions, be conclusive upon such parties. As used in this section, ‘public service facility’ includes any sewer, pipe, main, conduit, cable, wire, tower, building or a utility appliance owned or operated by an electric, gas, telephone, telegraph, water or community antenna television service company.”

       “[General Statutes] Sec. 13a-126. removal or relocation of public SERVICE FACILITIES FOR HIGHWAY CONSTRUCTION. As used in this Section, ‘public service facility’ includes any sewer, pipe, main, conduit, cable, wire, pole, tower, building or utility appliance owned or operated by any electric, gas, telephone, telegraph, water or community antenna television company, or any municipal government or department or subdivision thereof. Whenever the commissioner determines that any public service facility located within, on, along, over or under any land comprising the right-of-way of a state highway or any other public highway when necessitated by the construction or reconstruction of a state highway shall be readjusted or relocated in or removed from such right-of-way, he shall issue an appropriate order to the company, corporation or municipality owning or operating such facility, and such company, corporation or municipality shall readjust, relocate or remove the same promptly in accordance with such order; provided an equitable share of the cost of such readjustment, relocation or removal, including the cost of installing and constructing a facility of equal capacity in a new location, shall be borne by the state. Such equitable share, in the case of or in connection with the construction or reconstruction of any limited access highway, shall be the entire cost, less the deductions hereinafter provided, and, in the case of or in connection with the construction or reconstruction of any other state highway, shall be such portion or all of the entire cost, less the deductions hereinafter provided, as may be fair and just under all the circumstances, but shall not be less than fifty per cent of such cost after the deductions hereinafter provided. In establishing the equitable share of the cost to be borne by the state, there shall be deducted from the cost of the readjusted, relocated or removed facilities a sum based on a consideration of the value of materials salvaged from existing installations, the cost of the original installation, the life expectancy of the original facility and the unexpired term of such life use. When any facility is removed from the right-of-way of a public highway to a private right-of-way, the state shall not pay for such private right-of-way, provided, when a municipally-owned facility is thus removed from a municipally-owned highway, the state shall pay for the private right-of-way needed by the municipality for such relocation. If the commissioner and the company, corporation or municipality owning or operating such facility cannot agree upon the share of the cost to be borne by the state, either may apply to the superior court for the judicial district within which such highway is situated, or, if said court is not in session, to any judge thereof, for a determination of the cost to be borne by the state, and said court or such judge, after causing notice of the pendency of such application to be given to the other party, shall appoint a state referee to make such determination. Such referee, having given at least ten days’ notice to the parties interested of the time and place of the hearing, shall hear both parties, shall view such highway, shall take such testimony as such referee deems material and shall thereupon determine the amount of the cost to be borne by the state and forthwith report to the court. If the report is accepted by the court, such determination shall, subject to right of appeal as in civil actions, be conclusive upon both parties.”

       The DOT formula determines the reimbursement for utility relocations by subtracting from the net relocation costs a “depreciated reserve,” which is calculated as follows:

      The following example illustrates the application of the formula for a facility with the following data:
      Total cost of replacement installation.................... $100,000
      Less Salvage......................................... 10,000
      Net cost............................................. $ 90,000
      Original cost when installed 25 years ago with estimated useful life of 50 years....................................... $ 50,000

      Reimbursement $90,000 (net cost) - $25,000 (depreciated reserve) =........................................... $ 65,000

       The DEP formula is explained by the referee as follows:
      “The DEP formula reads algebraically something like this: R = A - (B x C x D) - E. R is the reimbursement to utilities; A is relocation costs; B is cost of original installation; C is expired useful life divided by life expectancy of original facility; D is a factor for inflation; and E is value of salvage. The inflation factor is commonly accepted in the construction industry as the proper standard for bringing to current value the cost of construction done since 1900.”
      The DEP formula also provides for a minimum reimbursement to a utility company of 20 percent of the current cost of the new installation, regardless of the age of the replaced facility. This provision has not been challenged in this litigation.
      Using the same figures as those in the example given in footnote 5, supra, and assuming an inflation faetor of 2.0 over the twenty-five year period, the calculation of the reimbursement would be as follows:

      Reimbursement = $100,000 (new cost) - $10,000 (salvage) - $50,000
      (BxCxD)=$40,000
      A 2.0 inflation factor represents a doubling of construction costs over the twenty-five year period, corresponding to a 100 percent rate of inflation for that period or an uncompounded rate of 4 percent per year.