author: Arthur H. Healey, J.

text:
    Concerned Citizens of Sterling et al. v. Town of Sterling
    (13123)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued June 2
    decision released August 4, 1987

      Kathleen Eldergill, for the appellants (named plaintiff et al.).

      JohnK. Harris, Jr., town attorney, for the appellee (defendant).
   Arthur H. Healey, J.

The dispositive issue on this appeal is whether the plaintiffs, the Concerned Citizens of Sterling et al., were required to exhaust their administrative remedies before filing their action for injunctive relief in the Superior Court. The named plaintiff is a nonprofit citizens’ organization composed of citizens, taxpayers and residents of the town of Sterling. The defendant, the town of Sterling, is a Connecticut municipality that owns an industrial park, known as the Town of Sterling Industrial Park.

The background facts are not in dispute. In late January, 1986, town officials announced that a company known as Oxford Energy, Inc., wanted to purchase twenty acres of land in the Town of Sterling Industrial Park for the purpose of building a tire-to-energy plant. The plaintiffs petitioned for a referendum on that question pursuant to General Statutes § 7-7. On February 22, 1986, a referendum was held and the voters of Sterling rejected the proposed sale.

Thereafter, certain residents of Sterling filed an application with the town selectmen, pursuant to General Statutes § 7-1, requesting that a special town meeting be held for the purpose of reconsidering the proposed sale. On March 13,1986, the board of selectmen published notice of a town meeting on March 20, 1986, and indicated that the board had voted to remove the proposed sale from the meeting agenda and submit it to a referendum vote to be held on March 27, 1986. At the March 27 referendum, the voters approved the sale of land to Oxford Energy, Inc.

On April 3, 1986, the plaintiffs filed a complaint in the Superior Court seeking permanently to enjoin the defendant from “taking any action to effectuate the sale of land in the Sterling Industrial Park.” The plaintiffs claimed that the March 27 referendum was illegal for the following reasons: (1) the earlier referendum vote on February 22, 1986, had not been rescinded in the same manner as voted, in violation of General Statutes § 7-7; (2) the municipal clerk had failed to issue a warning or a notice of the referendum held on March 27, 1986, as required under General Statutes § 7-9c; and (3) the town of Sterling’s conduct between the first and second referendum improperly had exerted undue influence upon the privilege of free suffrage of the citizens of Sterling in violation of article sixth, § 4, of the Connecticut constitution. The improper conduct alleged by the plaintiffs is that the town, during the period of February 23,1986, through March 27,1986, had prepared and distributed informational materials and explanatory texts which advocated the approval of the referendum question. The plaintiffs also alleged that town funds, facilities and materials had been used to prepare and distribute this information.

The plaintiffs, claiming irreparable harm and no adequate remedy at law, requested that the town be enjoined from taking any action to effectuate the sale of the land to Oxford Energy, Inc., and also requested “[s]uch other and further relief as [the trial] court deem[ed] just and proper.”

The defendant filed a motion to dismiss on May 21, 1986, asserting that the trial court lacked jurisdiction to interfere with a legislative action of the town and because the plaintiffs lacked standing to challenge such legislative action. The defendant also argued that the trial court lacked jurisdiction because the plaintiffs had failed to exhaust the administrative remedies provided by General Statutes § 9-7b. The trial court granted the defendant’s motion to dismiss, holding that the plaintiffs lacked standing to maintain the action.

On September 30,1986, the plaintiffs appealed claiming, inter alia, that the trial court erred in concluding that the plaintiffs lacked standing. At oral argument in this court, the plaintiffs conceded that as of the date this action was filed in the trial court, they had not yet filed a complaint with the state elections enforcement commission (the commission). We note that the plaintiffs did file a complaint with the commission twenty-six days after this action had been initiated in the Superior Court.

“ ‘It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977); State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 Davis, Administrative Law § 20.01; General Statutes §§ 4-175, 4-183.’ Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979).” Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987).

Because the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiffs’ claim. The issue of subject matter jurisdiction can be raised at any time including on appeal. “Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.” Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985) (Cahill II); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). “Moreover, ‘ “whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings.” ’ Chzrislonk v. New York, N.H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924).” Cahill II, supra. If the trial court had no jurisdiction because the plaintiffs had failed to exhaust their administrative remedies, the action must be dismissed.

The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, supra, 358-59. “The doctrine of exhaustion ‘furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.’ Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57, 385 N.E.2d 560, 412 N.Y.S.2d 821 (1978).” Cahill II, supra, 242.

The plaintiffs argue that their request for injunctive relief was properly before the trial court because a party is not required to exhaust an administrative remedy that is inadequate. Specifically, the plaintiffs maintain that the available administrative remedy, initiated by filing a complaint with the state elections enforcement commission, is inadequate because under General Statutes § 9-7b (8), the commission has no obligation to refer the matter to the attorney general for injunctive relief and, even if the matter is referred to the attorney general, the attorney general has no obligation to seek the injunctive relief requested. The plaintiffs argue that because the commission itself has no power to seek an injunction, the administrative remedy necessarily is inadequate to redress their complaint. Although we agree that a party is not required to exhaust an inadequate administrative remedy, we disagree with the plaintiffs’ characterization of their administrative remedy in this case as inadequate.

The administrative process that the plaintiffs claim is inadequate is set forth in General Statutes § 9-7b. This lengthy statute outlines the powers and duties of the commission. Under the statute, the commission has considerable power to make investigations, including the ability to hear witnesses, to review written documents, and to use subpoena power. The commission is authorized, inter alia, to levy civil penalties for various violations, to order repayment of funds spent improperly, to refer to the chief state’s attorney evidence of various election law violations for possible criminal prosecutions, and to refer to the attorney general any “evidence” of violations requiring injunctive or other ancillary equitable relief. General Statutes § 9-7b (1), (2), (3), (7) and (8).

Although, under the statute, the commission itself does not have the power to seek injunctive relief, it does have the power and duly “[t]o refer to the attorney general evidence for injunctive relief . . . . ” General Statutes § 9-7b (8). The legislative history of that provision indicates clearly that the procedure of referring to the attorney general a request for injunctive relief was set up as a mechanism to avoid creating a legal staff solely for the commission. The procedure envisioned by the legislature is that in any case where the commission has evidence indicating a violation of state election laws, it has the power and the duty, in appropriate cases, to refer this evidence to the attorney general who is authorized to seek injunctive relief.

In arguing that the administrative remedy is inadequate, one scenario presumably envisioned by the plaintiffs is that the commission would find serious error in an election process, but the attorney general would refuse, for one reason or another, to seek the injunctive relief requested. Another situation is that the commission itself would refuse to turn over evidence to the attorney general even though it had found an obvious violation of the election laws. First of all, these scenarios are not in accord with the facts as pleaded in this case. Moreover, by bypassing the administrative remedy, the plaintiff has not only “deprived [the administrative body] of the opportunity to hear, analyze and review a matter within its responsibility and expertise, but [has] also deprived [itself] of the opportunity to put on [its] case and to make a proper record on which to seek judicial relief . . . Cahill, II, supra, 241-42.

Although we do not require a party to pursue an administrative remedy that is futile, we have never held that the mere possibility that an administrative agency may deny a party the specific relief requested is a ground for an exception to the exhaustion requirement. Id., 243. In our cases, we have held that futility is more than a mere allegation that the administrative agency might not grant the relief requested. In most instances, we have held that the failure to exhaust an administrative remedy is permissible only when the administrative remedy would be useless. For example, in Cahill II, supra, we held that a mere claim of probable bias was insufficient to avoid the exhaustion doctrine. Id., 242. By contrast, in Dukes v. Durante, 192 Conn. 207, 223-24, 471 A.2d 1368 (1984), the plaintiffs sought injunctive relief based on the defendants’ failure to provide adequate housing. We concluded that, in light of the statute limiting the agency’s power to determinations of “eligibility for relocation payments,” resort to the agency would have been futile. Similarly, in Cahill v. Board of Education, 187 Conn. 94, 444 A.2d 907 (1982) (Cahill I), we held that an appeal from a decision by the defendant board was not necessary because the administrative agency had no power whatsoever to deal with the dispute in question. Id., 103-104.

This case does not present the situation sometimes found in zoning cases where we have permitted an exception to the exhaustion requirement. Reynolds v. Soffer, 183 Conn. 67, 71-72, 438 A.2d 1163 (1981); Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280 (1977). This exception requires that a plaintiff make allegations that a zoning violation has resulted in special damage to an individual. Cummings v. Tripp, supra, 77-78. The type of harm alleged here is not analogous to the specific harm suffered by a violation of a zoning ordinance where injunctive relief from a court may be a more appropriate remedy. The type of harm alleged by the plaintiffs in this case is a generalized injury suffered by all the voters and taxpayers of the town. This is precisely the type of harm that the commission was designed to combat. Although this harm is suffered generally by all voters in a particular election, no voter is denied a right to contest the election since the written complaint of only one person is enough to trigger the agency’s investigatory powers.

At oral argument, the plaintiffs relied heavily on Brainard v. West Hartford, 140 Conn. 631, 103 A.2d 135 (1954), where we held that an appeal to a public authority that was not bound to redress private grievances was an inadequate remedy. The crucial distinction there was that the private complainant was appealing to a board that was authorized only to act in the interests of the public convenience and welfare. In this case, the plaintiffs are not asserting a private grievance, but public grievances relating to election improprieties that the commission has a duty to investigate and redress. Furthermore, the commission is authorized to act on behalf of precisely this class of complainants to further the interests of the public in properly conducted elections.

The purpose of the administrative remedy embodied in this statutory scheme is to guarantee that all elections, primaries and referenda in Connecticut are held according to law. The ability of only one person to trigger the commission’s action ensures that any illegality or unfairness in the process cannot be overlooked even when the margin of victory is overwhelming. The broad investigatory powers of the commission in General Statutes § 9-7b (1) guarantee the commission access to the pertinent evidence that will enable it to make an informed decision. The sanctions that the commission is empowered to impose and its ability to refer “evidence” to state officials, including the attorney general, for further action gives the commission the power to fulfill the legislative intent to guarantee that elections be conducted according to law.

A final factor in our analysis is the practical notion of judicial economy that is involved. See Cummings v. Tripp, supra, 79. Election law complaints are better suited to the commission than the courts at the outset. Rather than forcing an aggrieved voter to hire counsel to make a claim, the administrative process permits an appropriate inquiry to be commenced upon the mere filing of a written complaint with the commission. The expertise of the commission in the area of elections makes it well suited to hear the case initially. Notions of judicial economy lead us to conclude that the proper procedure for alleging a violation of an election law is to file a complaint with the commission.

The fact that the plaintiffs have also alleged a violation of the free suffrage provision of the Connecticut constitution, article sixth, § 4, does not change our conclusion. “[D]irect judicial adjudication even of constitutional claims is not warranted when the relief sought by a litigant ‘might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore.’ Sullivan v. State, [189 Conn. 550, 559, 457 A.2d 304 (1983)].” LaCroix v. Board of Education, 199 Conn. 70, 87, 505 A.2d 1233 (1986). Although the plaintiffs have alleged a constitutional violation, the administrative remedy provided in the statute could conceivably provide all the relief requested by the plaintiffs.

The plaintiffs in this case filed a complaint with the commission twenty-six days after the action was initiated in Superior Court. Because the remedy available through the state elections enforcement commission might well have afforded the plaintiffs an adequate administrative remedy, the Superior Court did not have subject matter jurisdiction to entertain this matter. The Superior Court should have dismissed the case for failure to exhaust administrative remedies.

There is no error.

In this opinion the other justices concurred.

       Two individual members of the Concerned Citizens of Sterling, Frank Bauer and Glenn Shiffer, were also original plaintiffs in this action. The Concerned Citizens of Sterling and Glenn Shiffer have filed this appeal. Frank Bauer is not a party to this appeal.

       This land can be sold only upon approval of the residents and voters of the town of Sterling.

       General Statutes (Rev. to 1985) § 7-7 provides: “conduct of meeting OF MUNICIPAL CORPORATIONS. VOTE BY BALLOT OR VOTING MACHINE; WHEN. All towns, when lawfully assembled for any purpose other than the election of town officers, and all societies and other municipal corporations when lawfully assembled, shall choose a moderator to preside at such meetings, unless otherwise provided by law; and, except as otherwise provided by law, all questions arising in such meetings shall be decided in accordance with standard parliamentary practice, and towns, societies and municipal corporations may, by ordinance, adopt rules of order for the conduct of their meetings. At any such town meeting the moderator shall be chosen from the last-completed registry list of such town. Two hundred or more persons or ten per cent of the total number qualified to vote in the meeting of a town or other municipal corporation, whichever is less, may petition the clerk or secretary of such town or municipal corporation, in writing, at least twenty-four hours prior to any such meeting, requesting that any item or items on the call of such meeting be submitted to the persons qualified to vote in such meeting not less than seven nor more than fourteen days thereafter, on a day to be set by the town meeting or, if the town meeting does not set a date, by the town selectmen, for a vote by paper ballots or by a Yes or No vote on the voting machines, during the hours between twelve o’clock noon and eight o’clock p.m.; but any municipality may, any provision of any special act to the contrary notwithstanding, by vote of its legislative body provide for an earlier hour for opening the polls but not earlier than six o’clock a.m. The selectmen of the town may, not less than five days prior to the day of any such meeting, on their own initiative, remove any item on the call of such meeting for submission to the voters in the manner provided by this section or may submit any item which, in the absence of such a vote, could properly come before such a meeting to the voters at a date set for such vote or along with any other vote the date of which has been previously set. The paper ballots or voting machine ballot labels, as the case may be, shall be provided by such clerk or secretary. When such a petition has been filed with such clerk or secretary, the moderator of such meeting, after completion of other business and after reasonable discussion, shall adjourn such meeting and order such vote on such item or items in accordance with the petition; and any item so voted may be rescinded in the same manner. If such moderator resigns or is for any other cause unable to serve as moderator at such adjourned meeting, such clerk or secretary shall serve, or may appoint an elector of such municipality to serve, as moderator of such adjourned meeting. Such clerk or secretary, as the case may be, shall phrase such item or items in a form suitable for printing on such paper ballots or ballot labels. The vote on any item on the call of a town or other municipal corporation shall be taken by paper ballot if so voted at the meeting, if no petition has been filed under this section with reference to such item.”

       General Statutes § 7-1 provides: “annual and special town meetings. holding of meetings outside town, (a) Except as otherwise provided by law, there shall be held in each town, annually, a town meeting for the transaction of business proper to come before such meeting, which meeting shall be designated as the annual town meeting. Special town meetings may be convened when the selectmen deem it necessary, and they shall warn a special town meeting on application of twenty inhabitants qualified to vote in town meetings, such meeting to be held within twenty-one days after receiving such application. Any town meeting may be adjourned from time to time as the interest of the town requires.
      “(b) Where any town’s public buildings do not contain adequate space for holding annual or special town meetings, any such town may hold any such meeting outside the boundaries of the town, provided such meetings are held at the nearest practical locations to the town.”

       General Statutes § 7-9c provides: “dates and hours of referenda. Unless otherwise provided by law, a referendum on any question may be held on such date as the legislative body of the political subdivision holding such referendum shall determine and at such hours as is provided in section 7-9b; provided any such referendum shall be held not earlier than the thirtieth day following the day upon which the municipal clerk, upon instruction from the legislative body, issues a warning therefor by publishing a notice thereof in a newspaper having a general circulation in the municipality, and provided, if any question is to be submitted at an election as that term is defined in section 9-1, the provisions of sections 9-369, 9-369a and 9-370 shall apply. The provisions of this section shall not apply to votes scheduled pursuant to petitions filed under section 7-7.”

       The trial court did not rule on the exhaustion issue but granted the defendant’s motion to dismiss solely on the basis of lack of standing.

       General Statutes (Rev. to 1985) § 9-7b (1), as amended by Public Acts 1985, No. 85-489, § 1, provides: “(Formerly Sec. 9-368b). state elections ENFORCEMENT COMMISSION’S DUTIES AND POWERS. The State elections enforcement commission shall have the following duties and powers:
      “(1) To make investigations on its own initiative or with respect to statements filed with the commission by the secretary of the state or any town clerk, or upon written complaint under oath by any individual, with respect to alleged violations of any provision of the general statutes pertaining to or relating to any election, any primary held for the purpose of selecting a nominee for public office or any referendum, and to hold hearings when the commission deems necessary to investigate violations of any provisions of the general statutes pertaining to or relating to any such election, primary or referendum, and for the purpose of such hearings the commission may administer oaths, examine witnesses and receive oral and documentary evidence, and shall have the power to subpoena witnesses under procedural rules the commission shall adopt, to compel their attendance and to require the production for examination of any books and papers which the commission deems relevant to any matter under investigation or in question. In connection with its investigation of any alleged violation of any provision of Chapter 144a or 145, or of any provision of section 9-359 or section 9-359a, the commission shall also have the power to subpoena any municipal clerk and to require the production for examination of any absentee ballott, inner and outer envelope from which any such ballot has been removed, depository envelope containing any such ballot or inner or outer envelope as provided in sections 9-150 and 9-153, and any other record, form or document as provided in section 9-153, in connection with the election, primary or referendum to which the investigation relates. In case of a refusal to comply with any subpoena issued pursuant to this subsection or to testify with respect to any matter upon which that person may be lawfully interrogated, the superior court for the judicial district of Hartford-New Britain, on application of the commission, may issue an order requiring such person to comply with such subpoena and to testify; failure to obey any such order of the court may be punished by the court as a contempt thereof.”

       General Statutes § 9-7b provides: “The state elections enforcement commission shall have the following duties and powers .... (8) To refer to the attorney general evidence for injunctive relief and any other ancillary equitable relief in the circumstances of subdivision (7) of this section.”

       Senator Richard S. Scalo indicated one reason for this procedure: “[R]ather than create its own legal staff . . . when the Commission seeks to have injunctive relief entered in terms of illegal activities occurring within the state of Connecticut, it can call upon the office of the Attorney General to present these issues in the court.” 17 S. Proc., Pt. 5, 1974 Sess., pp. 1964-65. Thus, it appears the decision to have the commission refer “evidence” to the attorney general was one of convenience and efficiency, not a desire to limit the commission’s ability to provide relief to aggrieved parties.

       In support of their claim that exhaustion is not required, the plaintiffs point to language in Dukes v. Durante, 192 Conn. 207, 223, 471 A.2d 1368 (1984), that states that exhaustion is not required when “the relief sought is equitable and the administrative agency has no power to compel such relief.” Despite this language, the facts of the Dukes case disclose that it does not support the plaintiffs’ contention. In Dukes, the administrative remedy provided under General Statutes § 8-278 was limited to determinations of “eligibility for relocation payments.” The plaintiffs in that case sought injunctive relief because the defendants had failed to provide decent, safe and adequate housing. We concluded that because the commission was authorized to determine eligibility for relocation payments only, any claim made to that agency for injunctive relief would have been futile and thus excused the plaintiffs’ failure to seek relief from the administrative agency. In this case, however, unlike Dukes, the available administrative procedure does provide the plaintiffs with a mechanism for attaining the remedy that they seek.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Leo Lambert v. City of Bridgeport et al.
    (13095)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued June 3
    decision released August 4, 1987

      Mark T. Anastasi, associate city attorney, for the appellants (named defendant et al.).

      Bruce L. Levin, for the appellee (plaintiff).
   Covello, J.

The sole issue in this appeal is whether the plaintiff, a retired, heart-disabled police officer, is entitled to collect benefits under both a private retirement plan with his employer and General Statutes § 7-433C, even though the combined payment would exceed the maximum salary being paid to active patrol officers. The trial court held that the plaintiff could collect both benefits and the defendants have appealed. We find no error.

The parties stipulated to the following facts. Prior to December 13, 1975, the defendant city of Bridgeport employed the plaintiff as a regular member of its paid police department. At the time of his entry into service, the plaintiff submitted to a physical examination which failed to reveal evidence of heart disease or hypertension. On December 13, 1975, while off duty, the plaintiff suffered a heart attack, which disabled him from performing his duties as a patrol officer. The plaintiff retired on July 10, 1976. In November, 1976, the plaintiff notified the named defendant of his claim for benefits under § 7-433c. On December 21, 1978, the workers’ compensation commissioner awarded benefits to the plaintiff in accordance with that statute.

The stipulation further reveals that the plaintiff was a beneficiary of a contributory pension plan established pursuant to a collective bargaining agreement between the defendant city and the Bridgeport police union (private pension agreement). This agreement was not promulgated under the Municipal Employees’ Retirement Act, General Statutes § 7-425 et seq., and therefore is not subject to the limitations as to amounts set forth in that act.

The plaintiff would receive, if he collected both the § 7-433c benefits and the private pension benefits, an amount that would exceed the salary being paid to regular patrol officers. The city has refused to pay benefits under both § 7-433c and the private pension agreement to the extent that the combined total exceeds the salary being paid to active patrol officers.

General Statutes § 7-433c entitles a qualified, hypertensive or heart-disabled firefighter or police officer to receive compensation and medical care equivalent to that available under chapter 568 of the General Statutes, the Workers’ Compensation Act. Further, the officer or firefighter may recover the same retirement or survivor benefits from “the municipal or state retirement system under which he is covered . . . which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment.” General Statutes (Rev. to 1975) § 7-433c.

Section 7-433c was enacted “for the purpose of placing policemen who die or are disabled as a result of hypertension or heart disease in the same position visa-vis compensation benefits as policemen who die or are disabled as a result of service related injuries.” Pyne v. New Haven, 177 Conn. 456, 460-61, 418 A.2d 899 (1979); see also Maciejewski v. West Hartford, 194 Conn. 139, 144, 480 A.2d 519 (1984).

No limitation existed on the amount of benefits available under § 7-433c until 1977 when the legislature enacted amendments to both § 7-433b and § 7-433c. The amendment to § 7-433b provided that “the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under Section 7-433c shall be adjusted so that the total of such cumulative payments . . . shall not exceed one hundred per cent” of the compensation being paid to active department members in the same position as that held by the retiree on his retirement. Public Acts 1977, No. 77-520, § 2.

In concluding that the plaintiff was entitled to full benefits under both § 7-433c and the private pension agreement, the trial court reasoned that neither § 7-433c as it read “at the time of the vesting of the plaintiffs rights,” nor the private pension agreement provided for a setoff or limitation on the amount of benefits.

The defendants, relying on Pyne v. New Haven, supra, 462, contend that the law in effect at the time of the plaintiffs compensation award, December 21, 1978, rather than the law in effect on the date of his heart attack, December 13, 1975, or retirement, July 10, 1976, is determinative. They argue, therefore, that the limitation on § 7-433c benefits as mandated by the amendment to § 7-433b, effective July 5, 1977, is applicable. According to that amendment the benefits paid under the private pension agreement must be reduced so as not to exceed the 100 percent limit. We conclude, however, that the 1977 amendment is inapplicable to this case.

In Farmer v. Bieber-Goodman Corporation, 118 Conn. 299, 301, 172 A. 95 (1934), which considered compensation for an occupational disease, we explained that “[t]he law to be applied is that in effect when the plaintiff’s right to compensation arose, that is, when a compensable incapacity occurred.” See also Panico v. Sperry Engineering Co., 113 Conn. 707, 709, 156 A. 802 (1931). A similar rule applies in workers’ compensation cases, when the substantive rights and obligations of the parties are at issue. See Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 649, 363 A.2d 1085 (1975). While acknowledging that § 7-433c “is neither a ‘workmen’s compensation law’ nor ‘occupational disease law’ Plainville v. Travelers Indemnity Co., 178 Conn. 664, 674, 425 A.2d 131 (1979); we have held that officers qualified under § 7-433c are eligible to receive benefits “in the same manner” as that provided under the Workers’ Compensation Act. Maciejewski v. West Hartford, supra, 146; see General Statutes § 7-433c. A logical construction of the phrase “in the same manner” requires a consistent application of relevant laws in order to achieve a uniform treatment of claims. Applying the law in effect on the date of the compensation award could lead to inconsistent results, as the total time required to complete similar administrative proceedings can vary considerably.

In the present case, the plaintiff’s right to compensation and medical benefits under § 7-433c arose on December 13,1975, the date on which he suffered the heart attack. The plaintiff retired on July 10,1976. His rights to retirement benefits under the private pension agreement, therefore, arose on that date. It was on the date of his retirement, when the cumulative payments under § 7-433c and his pension exceeded the salary paid to active patrol officers, that the problem dealt with in the 1977 amendment to the statute arose. We conclude that the date to be used in determining the statutory provisions applicable to the plaintiffs claim is his retirement date. Since the plaintiffs rights accrued and were fixed nearly one full year before the amendment to § 7-433b took effect on July 5,1977, the 100 percent limitation created by that amendment is inapplicable to the determination of his benefits. To the extent that Pyne v. New Haven, supra, 462, indicates a contrary result, we herewith modify it.

The defendants contend that even if the date of the compensation award is not controlling, and, therefore, the amendment to § 7-433b is inapplicable, we should nevertheless impose a 100 percent limitation on the plaintiff’s benefits. They argue that the amendment to § 7-433b simply clarified the legislative intent underlying the original heart and hypertension statute. The legislative history of the amendment, however, supports a contrary conclusion. Legislators in both the House and the Senate recognized that under the original heart and hypertension statute, a person who suffered a heart attack could, in some cases, receive a greater amount of compensation than if he were actually working. Public Acts 1977, No. 77-520, was intended to alleviate this problem by placing a 100 percent cap on the benefits which are available under § 7-433c. See 20 S. Proc., Pt. 8, 1977 Sess., p. 3363; 20 H.R. Proc., Pt. 5,1977 Sess., pp. 1816-17, and Pt. 14, p. 6049. It is thus clear that the 1977 amendment was intended to create a substantive change in the law.

The defendants also assert that the plaintiff should be precluded from recovering both benefits because the purpose of § 7-433c “is to provide protection against wage loss” and not to grant certain police officers an unexpected windfall. See Middletown v. Local 1073, 1 Conn. App. 58, 62, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). In addition, the intent of the legislature in enacting § 7-433c, they point out, was to place qualified police officers “who die or are disabled as a result of hypertension or heart disease in the same position vis-a-vis compensation benefits as policemen who die or are disabled as a result of service related injuries” (i.e., officers entitled to collect workers’ compensation benefits). Pyne v. New Haven, supra, 460-61; see also Maciejewski v. West Hartford, supra, 144.

The plaintiff’s collection of benefits under both § 7-433c and the private pension agreement is not inconsistent with these purposes. In Grogan v. New Britain, 175 Conn. 174, 181-82, 397 A.2d 97 (1978), a workers’ compensation case, we held that a police officer who sustained a back injury in the course of his employment could collect both workers’ compensation benefits and retirement benefits under the city’s charter. If one who suffers a heart attack is to be placed in the same position vis-a-vis compensation benefits as one who sustains a service related injury and is entitled to workers’ compensation benefits; see Pyne v. New Haven, supra; then the plaintiff in the present case should be allowed to collect both the statutory benefits and the municipal pension benefits, as did the plaintiff in Grogan whose injuries were service related.

Finally, the defendants submit that the holdings in Middletown v. Local 1073, supra, 66, and Maciejewski v. West Hartford, supra, 152, support their claim to a limitation on the combined benefits. These cases, however, are readily distinguishable. The municipal ordinance which authorized payment of survivor benefits in Middletown specifically provided that workers’ compensation benefits had to be deducted from concurrent payments under the ordinance. Middletown v. Local 1073, supra, 60. In Maciejewski, the municipal pension plan mandated a 75 percent limitation on benefits paid. Maciejewski v. West Hartford, supra, 143. The pension agreement in the present case contains no such limitation or setoff provisions.

From the foregoing analysis, it is clear that the trial court correctly allowed the plaintiff to collect the dual benefits. Nothing either in the private pension agreement, or in § 7-433c as it existed at the time of the plaintiff’s retirement, precludes his collection of the full statutory benefits and pension benefits.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1975)] Sec. 7-433c. benefits for policemen OR FIREMEN DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR heart DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”
      Public Acts 1977, No. 77-520, § 1, amended § 7-433c by adding the following language before the final sentence of the provision: “The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability.”

       The defendants in the original action were: the city of Bridgeport; Bridgeport Fire Department Employees Union, Local 834; President, Bridgeport Fire Department Employees Union, Local 834; Comptroller, city of Bridgeport; Treasurer, city of Bridgeport; President, Common Council of the city of Bridgeport; Mayor, city of Bridgeport; Bridgeport Police Department Employees Union, Local 1159; and its president. All but the last two defendants appealed from the trial court’s judgment.

       The trial court did not further articulate the date on which the plaintiff’s rights accrued, but inferentially concluded that this was prior to the effective date of the amendment to General Statutes § 7-433b.

       Representative Samuel Gejdenson, for example, explained the purpose of the bill as follows: “What the bill does is put a cap on [the] amount of money an individual can seek through Heart and Hypertension, so that it does not exceed over 100 percent. ... In some cases it was found that through Heart and Hypertension and retirement plan, an individual could receive more money going out on Heart and Hypertension than when he was actually working.” 20 H.R. Proc., Pt. 5,1977 Sess., p. 1816; see also 20 S. Proc., Pt. 8, 1977 Sess., p. 3363, comments of Senator James J. Murphy, Jr.


author: Glass, J.

text:
    State of Connecticut v. Ronald E. Mayette
    (12930)
    Peters, C. J., Healey, Callahan, Glass and F. Hennessy, Js.

      Argued June 9
    decision released August 4, 1987

      M. Hatcher Norris, special public defender, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Julian Schlesinger, assistant state’s attorney, and Christopher Malany, deputy assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Ronald Mayette, was charged in an information with one count of sexual assault in the first degree in violation of General Statutes § 53a-70. After a trial to the jury, the defendant was found guilty and sentenced to a term of imprisonment of eleven years, execution of which was suspended after five years, and placed on probation for four years. The defendant appealed from the judgment of conviction.

The jury could reasonably have found the following facts. During the early morning hours of December 10, 1982, the victim, K.S., was working as a night clerk in a Mini-Mart convenience store in East Windsor. At approximately 5 a.m., she came from the storage area of the store and was confronted by a man wearing a hat and a scarf covering his face. The man pushed K.S. from the front of the store through a hallway and into a bathroom located at the rear of the store, where he sexually assaulted her. Following the attack, the assailant ordered K.S. to stay in the bathroom. The assailant then left the room but returned a short time later, apparently to assault her again. He became distracted, however, and again left the room. K.S. remained in the bathroom for a short period of time. Upon leaving the room, she observed her assailant, without the hat or scarf, assisting a customer. When he saw K.S., he approached her and pushed her back into the bathroom, and immediately left the store. K.S., upon leaving the bathroom, told the customer she had been raped and asked him to call the police. Officer Carl Weymouth, of the East Windsor police department, responded to the call and, upon arriving at the scene, interviewed K.S. who gave a detailed description of her assailant. Subsequently, she was shown a number of photographs in an attempt to identify her assailant. She positively identified the defendant as her assailant from a photo array on December 29, 1982. The store customer, Tousant Thomas, was also shown several photographs in an attempt to identify the person who had assisted him in the Mini-Mart. Thomas also identified the defendant from a photo array.

Prior to trial, the state filed a motion in limine to prevent the defendant from introducing the statements of another person made to two South Windsor police officers regarding the sexual assault in this case. The trial court granted the state’s motion. The defendant filed a pretrial motion to suppress the photo identifications made by K.S. and Thomas. The court denied this motion. Following the jury verdict of guilty, the defendant filed a motion for judgment of acquittal claiming that the evidence did not support a finding of guilty. This motion was also denied.

On appeal, the defendant contends that the trial court erred in: (1) granting the state’s motion in limine; (2) denying his motion to suppress the out-of-court photo identifications; and (3) denying his motion for judgment of acquittal. We find no error.

I

The first claim of the defendant is that the trial court erred in granting the state’s motion in limine which precluded him from calling witnesses to testify as to a third party’s declarations against penal interest which were exculpatory to the defendant. We disagree.

To analyze this claim of error, the following additional facts are pertinent. Approximately three weeks after K.S. had been sexually assaulted, James Boscarino was arrested by the South Windsor police for an unrelated assault which had occurred at a Bess Eaton donut shop in South Windsor. During questioning, one of the South Windsor officers, Detective Francis Felber, asked Boscarino whether he had committed the assault at the Mini-Mart store in East Windsor. At first Boscarino denied committing the crime, but later stated that he could have been involved. The following day, while being transported to court for arraignment on the Bess Eaton assault charge, Boscarino was again questioned about the Mini-Mart sexual assault, as well as another sexual assault which took place at the Detrex Chemical Company warehouse in South Windsor. While questioning Boscarino about the Detrex sexual assault, Felber stated that he wanted a yes or no answer, and Boscarino stated yes, he committed the crime. Felber, then asked: “Well, what about the ‘Mini-Mart’?” Boscarino replied “Yes,” and further indicated that he was familiar with the location of the store. Boscarino also stated that the Mini-Mart assault was similar to the Bess Eaton assault. On the basis of this information, Felber contacted the East Windsor police department. Subsequently, however, Boscarino repudiated the statements he had made at the police station and while being transported to court, claiming that he had admitted to committing the crimes only to get the officers to stop questioning him.

At the hearing on the state’s motion, the defendant called Felber, Detective Edward Kasheta, also of the South Windsor police department, and Lieutenant Carl Weymouth of the East Windsor police department. Felber testified concerning Boscarino’s statements elicited during questioning at the police station and while being transported to court. Kasheta, who had accompanied Felber and Boscarino to Boscarino’s arraignment, testified that Boscarino had appeared very nervous while he was being transported, and that Boscarino was neither a sophisticated nor an intelligent individual. He further stated that Boscarino, who wavered from being cooperative to uncooperative during the ride, did not volunteer any information, and spoke only when questioned. Kasheta concluded that Boscarino’s admission was not “a bona fide confession.” As Kasheta stated, “during the time that I witnessed him the day before, and taking in that morning, I think he would have told us he stole the Brooklyn Bridge, if we would have asked.”

Weymouth testified that he had interviewed Boscarino in connection with the Mini-Mart sexual assault but had come to the conclusion that Boscarino had not committed that crime for several reasons. First, Boscarino’s appearance did not meet the description of the assailant. Second, Boscarino’s attorney explained that Boscarino had confessed only to stop the police from further questioning him. Third, Weymouth noted that Boscarino’s car did not match the automobile observed at the scene of the crime. Finally, Weymouth presented an array of ten photographs, which included a photo of Boscarino, to K.S., but she stated that none of the photos was similar to her assailant. Because of the questionable circumstances surrounding the statements and the lack of corroborating evidence, the trial court granted the state’s motion in limine.

The defendant contends that the trial court erred in granting this motion because Boscarino’s statements were sufficiently trustworthy to be admitted into evidence. “In State v. DeFreitas, [179 Conn. 431, 450-51, 426 A.2d 799 (1980)], we adopted a rule, consistent with Chambers v. Mississippi, [410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)], and in accord with rule 804 (b) (3) of the Federal Rules of Evidence, which provides that trustworthy third party statements against penal interest which are exculpatory to the defendant, are admissible if the declarant is unavailable.” State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); see also State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, 180 Conn. 619, 630, 430 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). To be admissible, the proffered statements must be trustworthy; therefore the reliability of such statements must be examined carefully. State v. Bryant, supra, 693; State v. Gold, supra.

In determining the trustworthiness of a third party declaration against penal interest, this court has set forth four general considerations: (1) the time the declaration is made and the party to whom it is made; (2) the existence of corroborating evidence; (3) the extent to which the statement is really against the declarant’s penal interest; and (4) the availability of the declarant as a witness. State v. Bryant, supra, 693, and cases cited therein; State v. Gold, supra, 633; State v. DeFreitas, supra, 451. While we have recognized that there can be no precise formulation of proof which constitutes sufficient evidence of trustworthiness, we have noted that the Federal Rules of Evidence require that “corroborating circumstances clearly indicate the trustworthiness of the statement” before it is admissible. State v. Gold, supra, 630-31; see State v. Bryant, supra, 693-94. Thus, the determination of whether a third party declaration against penal interest is trustworthy is left to the sound discretion of the trial court. State v. Bryant, supra, 694; State v. DeFreitas, supra, 452, and cases cited therein.

As a threshold matter, it is uncontested that Boscarino was unavailable as a witness because he invoked his fifth amendment privilege against self-incrimination. See State v. DeFreitas, supra, 441. Additionally, it is undisputed that Boscarino’s statements are against his penal interest. Thus, in determining the trustworthiness of Boscarino’s statements, we need to examine only the time of the declarations and the parties to whom they were made, and the evidence corroborating the statements.

First, the time of the declarations and the parties to whom they were made weigh against the reliability of Boscarino’s statements. The statements were made approximately three weeks after the crime occurred. While this delay alone does not vitiate the reliability of the statements, we note that at no time prior or subsequent to the declarations in question did Boscarino reiterate his statements. Compare State v. Bryant, supra, 698-99 (the declarant made inculpatory statements shortly before the crime was committed, immediately after the crime had been committed and several times thereafter up until the defendant’s preliminary hearing). Additionally, unlike Chambers v. Mississippi, supra, 300, State v. Bryant, supra, 698, or State v. Gold, supra, 634, Boscarino’s statements were not spontaneous and unsolicited. The first time Boscarino stated that he could have been involved in the Mini-Mart sexual assault, he had been “subjectfed] to a rather long period of questioning.” As to the admission made while being transported to court on the following day, Officer Kasheta stated that Boscarino had not volunteered the statement; rather, he had spoken only after having been questioned by the officers.

Moreover, Boscarino’s statements were not made to close acquaintances or confidants in whom he would be expected to repose trust. See United States v. Goins, 593 F.2d 88, 91 (8th Cir.), cert. denied, 444 U.S. 827, 100 S. Ct. 52, 62 L. Ed. 2d 35 (1979); compare Chambers v. Mississippi, supra, 300 (declarant’s statements made to several close acquaintances shortly after murder occurred); State v. Bryant, supra (declarant made statements to mother, brother, and friends, as well as unsolicited statement to police officer); State v. Gold, supra, 625-26, 632, 634 (declarant made spontaneous inculpatory statements to a friend of twenty years, a friend of one year, and a fellow member of the declarant’s motorcycle club). Rather, the statements were made to members of the South Windsor police department, and only after questioning. Although we recognize that “[pjeople do not lightly admit a crime and place critical evidence in hands of the police in the form of their own admissions”; United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); according to his attorney, Boscarino stated that the only reason he admitted to the Mini-Mart assault was to stop the police from further questioning him. As the trial court opined, “[wjhile these circumstances do not necessarily make these statements inadmissible per se, they do raise serious enough questions as to consider very carefully . . . corroborating evidence and other circumstances in the case.”

We now turn to the second factor, the existence of corroborating evidence to substantiate the statement. The defendant claims that Boscarino’s statement that the Mini-Mart and Bess Eaton assaults were similar provided more than sufficient indicia of reliability. We disagree.

In the Bess Eaton assault, Boscarino entered the donut shop at approximately 7 p.m., wearing a ski mask and brandishing a toy gun. He forced the victim into the back of the shop and hit her over the head with a bottle, after which he fled. At no time did he attempt to assault her sexually. On the following day, Boscarino telephoned his victim and apologized. During the conversation, he also made arrangements to meet with her, and was apprehended when he attempted to do so.

There are few similarities between the two assaults. In the present case, the assailant was wearing a scarf and a hat, and was not armed. The assault took place at 5:00 in the morning, not in the evening. The assailant made no attempt to contact his victim. Most strikingly, the assailant sexually assaulted the victim. Unlike either State v. Gold, supra, or State v. Bryant, supra, where “a myriad of corroborating circumstances were present” to evince reliability, the record in the present case reveals few corroborating factors to indicate the trustworthiness of the statements. Under the circumstances of this case, we hold that the trial court did not abuse its discretion when it concluded that Boscarino’s “statements are inadmissible because . . . there was insufficient corroborating evidence as to their truthfulness.”

II

Next, the defendant claims that the trial court erred in failing to suppress the out-of-court identifications of the defendant by the victim, K.S., and by the customer at the Mini-Mart store, Tousant Thomas. The defendant contends that the identifications resulted from unnecessarily suggestive police procedures and were unreliable, and that admission of these identifications violated his constitutional right to due process. We disagree.

K.S. testified that the sexual assault lasted approximately thirty minutes and that she had numerous opportunities to view her assailant. On December 16, 1982, K.S. went to the Enfield police department and viewed a photo array of over 1000 photographs. Of these photographs she selected three as closely resembling her assailant. At that time she was “90% sure that one of these three [photographs] was the person who assaulted [her].” One of these photographs was that of the defendant.

On December 29,1982, K.S. returned to the Enfield police station and viewed another photographic array of ten photographs and immediately picked out a more recent color photo of the defendant as her assailant. There was also evidence that K.S. had viewed another photographic array in East Windsor sometime between December 10 and December 29. K.S. testified that she had viewed a photo that she believed to be her assailant in that array. This photograph was not put into evidence at trial.

We have recently reiterated that “ ‘[i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the “totality of the circumstances.” ’ ” State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311 (1987), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also State v. Cubano, 203 Conn. 81, 93, 523 A.2d 495 (1987); State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 836 (1985). “ ‘ “ ‘A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.’ ” . . .’ ” State v. Cubano, supra; State v. Hinton, supra, 293; State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). To prevail in his claim “the defendant must demonstrate that the trial court erred in both of its determinations regarding ‘suggestiveness’ and ‘reliability’ of identifications in the totality of the circumstances.” (Emphasis in original.) State v. Hinton, supra.

The defendant contends that the photo identifications made by K.S. were unnecessarily suggestive because she had viewed a photoboard containing a recent color photograph of the defendant nineteen days after she had selected an older black and white photograph out of an array of over 1000 photographs as one that resembled her assailant. “Although ‘we have recognized that pictorial recurrence can be suggestive in that it increases the risk of misidentification’; State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983); State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); see Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); the recurrent use of a defendant’s photo in successive arrays is not presumptively suggestive.” State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986); United States v. Bowie, 515 F.2d 3, 7-8 (7th Cir. 1975); State v. Evans, 200 Conn. 350, 354-55, 511 A.2d 1006 (1986); State v. Hinton, supra, 294. In State v. Evans, supra, where the witness did not identify the defendant in the first photographic array but did positively identify the defendant in a later photographic array, with a more recent photograph of the defendant, we held that the identification procedure was not unnecessarily suggestive. “Where a witness views a photograph of a defendant which does not resemble the defendant but later identifies the defendant based on a different photograph, viewing of the earlier photograph does not taint the later photographic identification.” Id., 355; United States v. Brown, 461 F.2d 134, 144 (D.C. Cir. 1972). In the present case, K.S. was certain that she had selected a photograph of her assailant rather than just a newer vintage of a photograph she had viewed previously.

The defendant further contends that the photo identification made by Thomas was also unnecessarily suggestive because, after selecting two photographs out of an array of ten, he was asked to identify which of the two photographs most clearly resembled the man he saw. He then selected the photograph of the defendant. As discussed above, the recurrent use of a defendant’s photograph in successive arrays is not presumptively suggestive. The mere fact that Thomas reexamined the two photographs he had selected in a “second array” did not impermissibly increase the risk of misidentification. The recurrent use of the defendant’s photograph in this case cannot be said to be unnecessarily suggestive.

Even if we were to assume that the procedures employed by the police were unnecessarily suggestive, we agree with the trial court’s finding that the identifications in this case were reliable under the “totality of circumstances.” “In determining whether an identification is reliable in the ‘totality of circumstances,” the corruptive influence of the suggestive procedure is weighed against ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.’ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) State v. Cubano, supra, 95; State v. Collette, supra, 311 n.3; State v. Hinton, supra, 295-96.

Under the totality of the circumstances, K.S.’s and Thomas’ identifications of the defendant were reliable. K.S. had ample opportunity to view the defendant during the sexual assault. The lighting in the bathroom was sufficient for her to view the defendant clearly, and during much of the ordeal his face was only inches away from hers. Thomas also viewed the defendant in the well lit store for three to four minutes while the defendant attempted to “wait on him” as if the defendant was a Mini-Mart employee. K.S. and Thomas focused their attention on the defendant. Although Thomas’ degree of attention was not as high as K.S.’s, it was nonetheless adequate for him to observe the defendant’s appearance.

Furthermore, K.S. and Thomas had given accurate prior descriptions of the defendant. The only major discrepancy in these descriptions was with respect to the defendant’s facial hair. K.S. described the defendant as having a goatee, although she noted that the goatee had an unnatural appearance. Thomas described the defendant as having a mustache but otherwise being clean shaven. K.S. was also positive that she properly selected the defendant as her assailant. When she selected the defendant’s photograph in the second array, she was certain that she was selecting it not because she had seen an older, black and white photograph of the defendant in the first array. Although Thomas was not positive about his identification, he nonetheless was able to describe the defendant accurately and select his photograph from an array. In State v. Ledbetter, supra, 612, we held that when the defendant challenges a photographic identification on the ground that the witness was not positive in his selection, “ [challenges of this nature do not rise to the level of constitutional dimension. Such challenges go to the weight rather than to the admissibility of the evidence.”

Additionally, the nineteen day delay between the incident and the photographic identifications was not unreasonable. Between the date of the crime and the identification K.S. had viewed a photographic array where she made no positive identification. She brought a high school year book to the police to show the officers a picture which resembled her assailant. She was careful to note that this was not her assailant. Thus, K.S. had taken steps to identify her assailant in a careful and systematic manner. Her memory did not fail during that time period. There is also no indication that Thomas had difficulty with his identification due to the nineteen day span.

We conclude, therefore, that even if the police procedures were suggestive, they did not corrupt the overall reliability of K.S.’s or Thomas’ identifications. Accordingly, the trial court was correct in admitting the identifications under the “totality of circumstances.”

III

The defendant in his final claim of error asserts that the evidence was insufficient to warrant the verdict of guilty and that the trial court erred in not granting his motion for judgment of acquittal. Reviewing the evidence as set forth above in the light most favorable to sustaining the jury’s verdict; State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); and then considering whether the verdict is one which jurors could reasonably have reached; State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Maturo, 188 Conn. 591, 601, 452 A.2d 642 (1982); State v. Jeustiniano, 172 Conn. 275, 281-82, 374 A.2d 209 (1977); we conclude that the evidence was sufficient to sustain the jury’s verdict.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person ¡S 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.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       “[Federal Rules of Evidence] Rule 804. hearsay exceptions; declarant UNAVAILABLE ....
      “(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness .... (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ...”