text:
    ANTHONY J. PAIGE ET AL. v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD ET AL.
    (15092)
    Callahan, Borden, Berdon, Katz and Palmer, Js.

      Argued September 29
    decision released November 21, 1995

      Frederic S. Ury, with whom, on the brief, was Candace D. Paige, for the appellants (plaintiffs).

      Roy II. Ervin, with whom was Roy H. Ervin, Jr., for the appellee (named defendant).

      John F. Fallon, for the appellee (defendant Fair-field University).

      Richard Blumenthal, attorney general, and Janet P. Brooks, assistant attorney general, filed a brief for the commissioner of environmental protection as amicus curiae.

      Michael Stem filed a brief for the Connecticut Fund for the Environment, Inc., et al., as amici curiae.
   KATZ, J.

The sole issue on appeal is whether trees and wildlife, independent of whether they have economic value, fall within the term “natural resources” as it is used in General Statutes § 22a-19 (a) and (b).

The record discloses the following undisputed facts. In July, 1991, the defendant Fairfield University (university) filed with the defendant Fairfield town plan and zoning commission (commission) an application to resubdivide a 13.41 acre wooded site into forty building lots along with an application for a special permit to excavate and fill the land. The plaintiffs, Anthony J. Paige and Candace D. Paige, who are property owners of lots that adjoin the subject property, filed a notice of intervention on behalf of the environment in accordance with § 22a-19 (a). They asserted a claim that approval of the application would have an adverse impact on the environment and that, therefore, the university was required to file alternative plans for the commission’s consideration. Specifically, the plaintiffs alleged that because development of the subdivision would require clear-cutting of the subject acreage, the development would likely cause unreasonable pollution, impairment or destruction of the public trust in the air, water, wildlife and other natural resources of the state. Without expressly indicating (1) whether it had determined that natural resources were involved, (2) whether development of the subdivision would cause unreasonable pollution, impairment or destruction of those resources, or (3) whether alternative plans were necessary, the commission approved the university’s applications subject to twenty conditions.

Following the commission’s approval of the applications, the plaintiffs appealed to the trial court pursuant to General Statutes § 8-8 (b). They claimed that as a result of the university’s plan to clear-cut 13.4 acres of wooded area, the natural resources, in specific, the trees and wildlife that inhabit that area, would be destroyed. According to the plaintiffs, the commission acted “illegally, arbitrarily and in abuse of its discretion ... by approving the . . . [application without considering the proposed development’s unreasonable destruction of a natural resource and by failing to consider feasible and prudent alternatives.”

The trial court held that trees and wildlife are not natural resources under § 22a-19 (a) and that, consequently, the commission was not obligated to comply with § 22a-19 (b). In reaching that conclusion, the trial court relied on our decision involving agricultural land in Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 563 A.2d 1347 (1989). Additionally, the trial court reasoned that, in the absence of a clear legislative direction either in the language of § 22a-19 or in its legislative history, it would refrain from considering trees and wildlife as natural resources because to do otherwise “would potentially be requiring the consideration of alternatives pursuant to General Statutes § 22a-19 (b) for every subdivision application in the state.” Accordingly, the trial court dismissed the plaintiffs’ appeal. We note that because the trial court determined that natural resources were not involved here, and, therefore, that § 22a-19 (b) did not apply, it had no occasion to review the record in order to decide whether the commission had considered the plaintiffs’ claim that the subdivision unreasonably would impact adversely the natural resources of the state.

The plaintiffs petitioned the Appellate Court for certification to appeal. Following its grant of that petition, the Appellate Court held, as a matter of law, that to be a “natural resource” under § 22a-19 (a), property must have economic value. Paige v. Town Plan & Zoning Commission, 35 Conn. App. 646, 651, 646 A.2d 277 (1994). Because the term “natural resource” was not specifically defined in § 22a-19 (a) or (b) to include trees and wildlife, a majority of the Appellate Court construed the term using standard tools of statutory construction to ascertain the legislative intent. The court ultimately adopted a narrow definition of natural resources from Black’s Law Dictionary. The court defined the term as “ ‘[a]ny material in its native state which when extracted has economic value. Timberland, oil and gas wells, ore deposits, and other products of nature that have economic value.’ ” (Emphasis added.) Id., 651, quoting Black’s Law Dictionary (6th Ed. 1990). Economic value from tourism and research was also included in the definition. Id., 653.

In reviewing the record of the proceedings before the commission to ascertain whether that body could have concluded as a matter of fact that the trees and wildlife had any economic value, the Appellate Court remarked that there had been “no evidence that the subdivision area had economic value. To the contrary, the testimony at the hearing indicated that the area contained absolutely no endangered or rare trees and wildlife that would cause the property to have economic value in tourism and research. Further, the testimony revealed that the property serves no other useful productive use causing the property to have economic value.” Id. Accordingly, the Appellate Court held that because they had no proven economic value, the trees and wildlife were not natural resources under § 22a-19 (a) . Id. Therefore, the court concluded that § 22a-19 (b) , which would have required the university to propose and the commission to consider feasible alternatives to the subdivision project, did not apply and affirmed the judgment of the trial court.

We granted the plaintiffs’ petition for certification limited to the following question: “In the circumstances of this case, did trees and wildlife on the property of the defendant university fall within ‘natural resources’ as that term is used in General Statutes § 22a-19 (a) and (b), so as to require the defendant commission expressly to consider the possible environmental impact of a proposed subdivision plan?” Paige v. Town Plan & Zoning Commission, 231 Conn. 934, 649 A.2d 256 (1994). Because we disagree that the determination of whether property is a natural resource depends on a factual determination that the property has economic value and instead conclude that trees and wildlife are natural resources regardless of their economic value, we reverse the judgment of the Appellate Court and remand the case for consideration by the trial court on the question of whether the commission properly applied § 22a-19.

Because § 22a-19 fails to provide a detailed definition of natural resources, we are compelled to produce a definition that reflects legislative intent using traditional tools of statutory construction. “In construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation .... State v. McVeigh, 224 Conn. 593, 607, 620 A.2d 133 (1993).” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-508, 636 A.2d 1342 (1994). We assume that the legislature attempts to create a consistent body of law. Zachs v. Groppo, 207 Conn. 683, 696, 542 A.2d 1145 (1988). Assuredly, “we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... Daly v. DelPonte, 225 Conn. 499, 510, 624 A.2d 876 (1993); see also Simms v. Warden, 229 Conn. 178, 187-88, 640 A.2d 601 (1994).” (Internal quotation marks omitted.) Derwin v. State Employees Retirement Commission, 234 Conn. 411, 420, 661 A.2d 1025 (1995). Indeed, this tenet of statutory construction requiring us to read statutes together is particularly applicable when the statutes relate to the same subject matter. Simms v. Warden, supra, 187-88. Finally, “[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

The plaintiffs argue that the narrow and restrictive definition of natural resources settled on by the Appellate Court is in derogation of the Environmental Protection Act (act); General Statutes § 22a-1 et seq.; and the applicable Regulations of Connecticut State Agencies promulgated to support its enforcement. We agree that in virtually all statutory references to natural resources, the legislature painted with a broad brush. In view of the various legislative declarations, we conclude that natural resources must be viewed “in terms of values beyond the limited economic product value . . . [and that] a definition of natural resources for the purposes of § 22a-19 should not be restricted to a narrow economic product value standard, but should take into account the broader range of values envisioned by the legislative language.” Paige v. Town Plan & Zoning Commission, supra, 35 Conn. App. 670 (Schaller, J., dissenting).

The act, entitled “Environmental Protection Department and State Policy,” proclaims as the broad policy behind its enactment: “The air, water, land and other natural resources, taken for granted since the settlement of the state, are now recognized as finite and precious. . . . [H]uman activity must be guided by and in harmony with the system of relationships among the elements of nature. . . . [T]he policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment . . . .” General Statutes § 22a-1. Similarly, the broad policy language found in General Statutes § 22a-36, which defines inland wetlands and watercourses as natural resources, cautions that the destruction of such natural resources “will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever more.”

In promulgating regulations regarding its responsibilities, the department of environmental protection (department) has elaborated on what constitutes natural resources. Section 22a-1-1 of the Regulations of Connecticut State Agencies provides that “[t]he department operates according to powers conferred in various titles of the General Statutes relating to management, protection and preservation of the air, water, land, wildlife and other natural resources of the state . . . .” This regulatory enumeration is consistent with the legislature’s express reference to plants and wild animals as natural resources in General Statutes § 22a-6a (a), which provides that “[s]uch person shall also be liable to the state for the reasonable costs and expenses of the state in restoring the air, waters, lands and other natural resources of the state, including plant, wild animal and aquatic life to their former condition . . . .” Equally consistent is the use of the term natural resources in General Statutes § 22a-342, which provides that the department, in deciding whether to grant a permit, must consider various factors including “the protection and preservation of the natural resources and ecosystems of the state, including but not limited to ground and surface water, animal, plant and aquatic life, nutrient exchange, and energy flow . . . .” Therefore, where the legislature has chosen to specifically articulate what is meant by natural resources, it has included trees and wildlife and has given no indication that the term as used throughout the act should be afforded different meanings. Moreover, had the legislature intended the illustrative lists in § 22a-6a (a) or § 22a-342 to be limited to those particular statutes, it could have provided a definitional section within the act to control all the other statutes in which the term is used. See Neptune Park Assn. v. Steinberg, 138 Conn. 357, 362, 84 A.2d 687 (1951). The narrow reading of the term natural resources ascribed by the majority of the Appellate Court contradicts the specific illustrations of what the legislature has stated a natural resource includes as found in certain provisions of the act as well as the broad policy language found throughout the act.

Finally, in interpreting a statute, “the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.” State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991). As a natural resource, air, for example, has no traditional economic value because in and of itself it can neither be bought nor sold. Applying this rule of construction, otherwise known as ejusdem generis, because the specific terms of § 22a-19 enumerate resources without economic value, the general terms must be interpreted so as to include resources regardless of their lack of economic value.

Our analysis of legislative intent also takes into account circumstances surrounding the enactment of the provisions under scrutiny. Connecticut is not the only state to have enacted legislation to protect the environment and natural resources. Michigan, Massachusetts, Texas, Pennsylvania, Colorado and California had enacted similar legislation that was reviewed by the drafters of the Connecticut legislation before the adoption of the existing act. 14 H.R. Proc., Pt. 2, 1971 Sess., p. 738. Indeed, a review of our legislative history shows that the Michigan statute served as a model for our act. Id. Like the Connecticut act, the Michigan Environmental Protection Act also used the phrase “air, water and other natural resources.” Mich. Stat. Ann. § 14.528(202) (Callaghan 1995) (repealed in 1994 and reenacted as part of the Natural Resources and Environmental Protection Act, Mich. Stat. Ann. § 13A.101 et seq. [Callaghan 1995]). The Michigan Supreme Court, in interpreting that phrase, recognized that the legislature “in establishing environmental rights set the parameters for the standard of environmental quality but did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of environmental pollution or impairment. Rather, the Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality.” Ray v. Mason County Drain Commissioner, 393 Mich. 294, 306, 224 N.W.2d 883 (1975). Following the direction of the Michigan Supreme Court to interpret the Michigan act in favor of broad policy language over narrow and restrictive definitions, the Michigan Court of Appeals held in Kimberly Hills Neighborhood Assn. v. Dion, 114 Mich. App. 495, 503-505, 320 N.W.2d 668 (1982), that the existing plant and animal life on the land in question were natural resources. Several other Michigan courts have held that trees are a natural resource under the Michigan act. See Portage v. Kalamazoo County Road Commission, 136 Mich. App. 276, 280-81, 355 N.W.2d 913 (1984).

The view that the term natural resources is confined to the limited economic product value standard as defined by a majority of the Appellate Court is nowhere expressed in our legislative history. To the contrary, the legislative history of the act is antithetical to that conclusion. The act was promulgated on a legislative finding that there is “a public trust in the air, water and other natural resources of the state of Connecticut and that ... [in order to protect that trust, all persons are provided] an adequate remedy to protect . . . natural resources from unreasonable pollution, impairment or destruction.” General Statutes § 22a-15. The promotion of that policy has resulted in Connecticut’s ranking fourth in a survey assessing all the states on the level of their commitment to environmental protection. S. Ridley, The State of the States (Fund for Renewable Energy and the Environment, 1987). Representative John F. Papandrea, the deputy majority leader, speaking in favor of the act, explained that it would expand “the right of a person to have access to the courts when property which we might say belongs to all of the public is jeopardized by the alleged polluting activity.” 14 H.R. Proc., supra, p. 739. In defining the type of property that belongs “to all of the public,” he added that “some of the most beautiful aspects of our environment, some of those most vital not only to our survival, but to that of future generations are such that they do not lend themselves to a proprietary or a personal interest and this bill makes the guaranteeing and the preservation and the protection of these rights available to the general public which they are not presently under our law.” Id. Therefore, the legislative history reflects a continuing interest in progressive legislation and refutes the conclusion by the Appellate Court that the legislature intended to allow citizens to sue or intervene in administrative proceedings in order to protect only those natural resources that have economic value.

Finally, we recognize the many other environmental protection statutes that expressly envision the broad range of values suggested by the language of § 22a-19 (b). In 1970, Congress enacted the National Environmental Policy Act, the purpose of which was to establish a national environmental policy to restore and maintain environmental quality, and to create and maintain conditions under which humanity and nature can coexist in productive harmony. 42 U.S.C. § 4331 (a) (1988). To enforce that policy, Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act, which established liability and the right to compensation for the release of hazardous substances causing damage to natural resources. The term natural resources was defined in that act as “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources . . . .” 42 U.S.C. § 9601 (16). Similarly, the Minnesota legislature adopted a definition of natural resources that accurately and expressly reflects the broad values suggested by Connecticut’s act. The Minnesota Environmental Rights Act specifically defines natural resources to include “all mineral, animal, botanical, air, water, land, timber, [and] soil . . . .” Minn. Stat. § 116B.02 (1994). Indeed, in none of the definitions of natural resources in legislation that the parties have referenced is an economic value test used. Rather, each statute is a product of legislative efforts to save the environment and preserve it for future generations. See, e.g., Mass. Ann. Laws c. 21, § 1 (Law. Co-op. 1988) (department of environmental management charged with management, conservation, control, use, increase and development of natural resources that include the ocean, shellfish and inland fisheries; wild birds, including song and insectivorous birds; wild mammals and game; sea and fresh water fish of every description; forests and all cultivated flora, together with public shade and ornamental trees and shrubs; land, soil and soil resources, lakes, ponds, streams and coastal, underground and surface waters; minerals and natural deposits); Mich. Stat. Ann. § 13.32 (1)-(3) (Callaghan 1994) (department of natural resources charged with providing appropriate response activity to eliminate contamination to natural resources including any land, surface water, groundwater, subsurface, strata, air, fish, wildlife, or biota within the state); see also Penn. Const., art. 1, § 27 (right to public natural resources, which are common property to all people, including future generations, is right to clean air, pure water, and to preservation of natural, scenic, historic and aesthetic values of environment). Certainly, it would have been more direct for our legislature to be as explicit throughout the act as was, for example, the Minnesota legislature. In the absence of explicit contrary language, however, the interpretation of our statutes advanced by the plaintiffs promotes the policy that the act was designed to implement.

Therefore, we conclude that there is no support for the economic value test in the language of the act, in its stated purpose or in its legislative history. Indeed, given the legislative history and policy of environmental law in Connecticut, the economic value test has little place in our environmental protection statutory scheme. To require a party under § 22a-19 (a) to prove that the state resources he or she is purportedly attempting to protect have economic value is inconsistent with and, indeed, detrimental to all expressed state and federal environmental policies.

As we have stated many times, “[w]hen the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.” Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). “A statute . . . should not be interpreted to thwart its purpose.” (Internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126-27, 584 A.2d 1172 (1991). It is clear that § 22a-19, consistent with the rest of the act, was intended, not as a mere impediment to developers, but rather as a means to protect the environment from unreasonable adverse impact. We acknowledge the defendants’ concerns that residential and commercial development may be burdened as a result of our rejection of the economic value test. Furthermore, we recognize that the intent to balance the tensions of environmental interests wdth the interests of private landowners to use and develop their land was not ill-conceived.

We understand that it was an overriding fear that “consideration of alternatives pursuant to § 22a-19 (b) for every subdivision in the state”; Paige v. Town Plan & Zoning Commission, supra, 35 Conn. App. 652; would be required that caused a majority of the Appellate Court to generate the narrow economic test. We believe, however, that those fears are unfounded. By requiring the commission to apply the reasonableness standard set forth in § 22a-19 (a), we do not anticipate a sudden influx of citizen intervenors in subdivision applications. Nor do we expect that alternative plans will be required in each case any more than if we were to adopt the economic test espoused by the Appellate Court. “By its plain terms, General Statutes § 22a-19 (b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue. See Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, [212 Conn.] 734-35; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726 (1978); Fromer v. Boyer-Napert Partnership, 42 Conn. Sup. 57, 69-71, 599 A.2d 1074, aff'd, 26 Conn. App. 185, 599 A.2d 398 (1991); 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 737, 741-42. In view of the factors and standards that govern the determination in each case, any fear that a broad definition will cause alternative plans to be required in virtually every case is plainly unwarranted.” (Emphasis in original.) Paige v. Town Plan & Zoning Commission, supra, 672-73 (Schaller, J., dissenting).

Finally, the defendants argue that this case is controlled by Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 727. In that case, we held that prime agricultural land is not a natural resource under § 22a-19. Prime agricultural land is different from what is claimed to be a natural resource in this case. Prime agricultural land is a subcategory of land subject to human alteration that is kept barren of plant and animal life that would otherwise eventually live on it through natural succession. Agricultural land is not naturally occurring. Consequently, the concerns expressed by this corut in Red Hill Coalition, Inc., that including prime agricultural land within the reach of the act would lead to irrational results do not apply here.

It is undisputed that in this case the commission’s decision made no reference to (1) whether trees and wildlife are natural resources, (2) whether the proposed development would unreasonably pollute, impair or destroy the public trust in natural resources, or (3) whether the university was required to propose and the commission was required to consider alternative plans. Nevertheless, the defendants argue that we should reject the plaintiffs’ claims that the commission failed to consider the proposed development’s unreasonable destruction of a natural resource and any feasible and prudent alternatives because many of the twenty conditions imposed by the commission are evidence that the commission considered the environmental issues, including any alternatives. In contrast, the plaintiffs contend that the conditions imposed do not themselves substantiate the defendants’ position.

“[O]ur case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. In Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979), [we] said that [t]he [planning and zoning] commission’s failure to state on the record the reasons for its actions, in disregard of General Statutes § 8-3, renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission’s decision .... [We] further stated that [i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld. . . . Id., 662-63. [We have] enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases. See, e.g., A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972). Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990).” (Emphasis in original; internal quotation marks omitted.) Paige v. Town Plan & Zoning Commission, supra, 35 Conn. App. 665-66 (Schaller, J., dissenting). It is clear from the record in this case that the trial court focused on the legal issue of whether the term natural resources as used in § 22a-19 includes trees and wildlife. In concluding, incorrectly, that trees and wildlife are not natural resources protected by the statute, and that, consequently, the commission was not obligated to consider alternatives to their elimination, the trial court never fulfilled its responsibility to search the record in order to determine whether a basis for the commission’s decision existed. The trial court must, therefore, review the record before the commission to determine whether the commission properly considered all of the issues presented by § 22a-19 (a) and (b), particularly whether the university’s subdivision plan would result in the unreasonable destruction of the environment so as to require the commission to consider alternatives.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand it to the trial court for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 22a-19 provides: “Administrative proceedings, (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
      “(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       See footnote 1.

       Only the first three conditions are pertinent to this appeal. They a.re as follows:
      “1. A buffer with a minimum depth of twenty (20) feet shall be established along the northerly property lines of Lots 1-12 and along the easterly property lines of lots fronting on North Benson Road (Lots 1, 19, 20, 21, 22, 38, 39, 40) to create and maintain a dense visual screen. These lots shall be conveyed by deeds containing provisions to satisfy the buffer requirement as proposed by the applicant. A draft of a proposed deed shall be submitted for Commission approval.
      “2. In conjunction with the above described deed restriction, a landscaping plan shall be submitted for Commission approval. The plan shall include existing and proposed trees and plantings including the use of berming and additional plantings to ensure visual screening to the satisfaction of the Commission.
      “3. A tree removal plan indicating existing trees to be removed and existing trees to be maintained in conjunction with subdivision improvements shall be submitted for Commission approval prior to any work commencing on site. Trees to be maintained shall be properly protected during construction and the proposed method of protection to be outlined in the plan.”

       General Statutes § 8-8 (b) provides: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-1471, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       When we interpret a statute, we generally accord great deference to the construction given it by the agency charged with its enforcement. Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993).

       See footnote 3.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RALPH M. SHULANSKY, COMMISSIONER OF BANKING v. RENE RODRIGUEZ ET AL.
    (15153)
    Peters, C. J., and Callahan, Berdon, Norcott and Palmer, Js.
    Argued October 25
    decision released November 28, 1995

      Brendan T. Flynn, with whom were Steven D. Bartelstone and, on the brief, Brian J. Woolf, for the appellant (named defendant).

      William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   PER CURIAM.

In this action to enforce an administrative subpoena, the sole issue is whether the commissioner of banking exceeded the broad discretion conferred upon him by General Statutes (Rev. to 1993) §§ 36-21 and 36-495 to require the production of documents relevant to the investigation of possible violations of the Connecticut Uniform Securities Act (CUSA). The plaintiff, the banking commissioner of the state of Connecticut (commissioner), filed an application in the trial court to require the defendant, Rene Rodriguez, to comply with a subpoena duces tecum that had been served upon him. The defendant challenged the validity of the subpoena on the grounds that: (1) it had been issued for an improper purpose; (2) the documents to be disclosed were irrelevant to any possible CUSA violations; and (3) the production of the documents would have been unduly burdensome. After an evidentiary hearing, the trial court rejected each of the defendant’s objections to the subpoena and rendered a judgment directing him to produce the documents specified therein. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

In this appeal, the defendant argues that the judgment of the trial court should be reversed because the court improperly determined that the documents sought by the commissioner were relevant to the commissioner’s investigation of a possible violation of General Statutes (Rev. to 1993) § 36-472. He maintains that we have plenary authority to review the enforceability of an investigatory subpoena with respect to relevancy and that, whatever the scope of our authority, the trial court improperly found relevance in the circumstances of this case. We are not persuaded.

The applicable precedents vest substantial discretion in the administrative agency to engage in pretrial discovery to gather evidence in advance of the filing of specific charges. Unless the administrative inquiry is plainly irrelevant, a party resisting compliance with an investigatory subpoena may not challenge the applicability of the regulatory statute to the conduct under investigation. See Commission on Human Rights & Opportunities v. Archdiocesan School Office, 202 Conn. 601, 606, 522 A.2d 781, appeal dismissed, 484 U.S. 505, 108 S. Ct. 51, 98 L. Ed. 2d 15 (1987); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 514-15, 461 A.2d 938 (1983); In re Application of Ajello v. Moffie, 179 Conn. 324, 326, 426 A.2d 295 (1979); see also United States v. Morton Salt Co., 338 U.S. 632, 652-53, 70 S. Ct. 357, 94 L. Ed. 401 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 214, 216-17, 66 S. Ct. 494, 90 L. Ed. 614 (1946).

Our examination of the record on this appeal, and the briefs and arguments of the parties, persuades us that the judgment of the trial court should be affirmed not only with respect to this underlying principle, but also with respect to the application of the principle to the facts of this case. The relationship between the documents specified in the subpoena and the commissioner’s investigation of possible violations of § 36-472 was fully explored and properly resolved in the thoughtful and comprehensive memorandum of decision filed by the trial court. Shulansky v. Rodriguez, 44 Conn. Sup. 72, 669 A.2d 638 (1995). Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on that issue. It would serve no useful purpose for us to repeat the discussion therein contained. See, e.g., Daw's Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Loeb v. Al-Mor Corp., 224 Conn. 6, 7, 615 A.2d 149 (1992).

The judgment is affirmed.

       General Statutes (Rev. to 1993) § 36-21 provides: “Examination under oath and subpoenas. The commissioner or any authorized employee of the department of banking may examine any person under oath, which he may administer, relative to the affairs of any entity subject to the general supervision of the commissioner, and may by suitable process compel the attendance of witnesses and the production of books and papers. If any person refuses to attend, testily or produce books and papers as ordered, a judge of the superior court, upon application by the commissioner, may make such order as may be appropriate in the premises to aid in the enforcement of this section.” This section was repealed, effective January 1, 1995. Public Acts 1994, No. 94-122, §§ 339, 340.
      General Statutes (Rev. to 1993) § 36-495 (now § 36b-26) provides in relevant part: “Investigative powers of commissioner. . . . (c) In case of contumacy by, or refusal to obey a subpoena issued to, any person, the superior court for the judicial district of Hartford-New Britain, upon application by the commissioner, may issue to the person an order requiring him to appear before the commissioner, or the officer designated by him there to produce documentary evidence if so ordered or to give evidence concerning the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as a contempt of court.”

       Although the application, as filed, was addressed not only to the named defendant but also to PVT Realty, Inc., the action was subsequently withdrawn as to that defendant. All references to the defendant are to Rodriguez.

       General Statutes (Rev. to 1993) § 36-472 (now § 36b-4) provides in relevant part: “Prohibited activities re the offer, sale or purchase of any security. No person shall, in connection with the offer, sale or purchase of any security, directly or indirectly ... (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading . . . .”


text:
    STATE OF CONNECTICUT v. JOHN YURCH
    (15230)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.
    Argued October 26
    decision released November 28, 1995

      Louis S. Avitabile, with whom was Meryl Anne Spat, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin A. Lipsky, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The only certified issue in this criminal appeal is whether a defendant who, at trial, argued that forgery in the third degree is a lesser included offense of forgery in the second degree is entitled thereafter to appellate review of his belated claim that the former crime is not a lesser included offense of the latter crime. After a trial to the court, the defendant, John Yurch, was acquitted of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1), but was convicted of two counts of forgery in the third degree in violation of General Statutes § 53a-140. The trial court subsequently found that the defendant was in violation of probation pursuant to General Statutes § 53a-32. On appeal, the Appellate Court affirmed the judgment of conviction as to the two counts of forgery in the third degree. State v. Yurch, 37 Conn. App. 72, 654 A.2d 1246 (1995). This court granted, in part, the defendant’s petition for certification to appeal.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal should be dismissed on the ground that certification was improvidently granted. In the circumstances of this case, the issue on which we granted certification was sufficiently addressed in the opinion of the Appellate Court, and it would serve no useful purpose for us to amplify the discussion therein contained. See State v. Busque, 229 Conn. 839, 842, 643 A.2d 1281 (1994); State v. Murray, 225 Conn. 524, 527, 624 A.2d 377 (1993).

The appeal is dismissed.

       General Statutes § 53a-139 provides in relevant part: “Forgery in the second degree: Class D felony, (a) A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed . . . contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status . . . .”
      The trial court also acquitted the defendant of attempted larceny in the fourth degree in violation of General Statutes §§ 53a-49 and 53a-135.

       General Statutes § 53a-140 provides in relevant part: “Forgery in the third degree: Class B misdemeanor, (a) A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.”

       General Statutes § 53a-32 provides in relevant part: “Violation of probation or conditional discharge: Arrest; procedure, (a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation ... or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . .
      “(b) If such violation is established, the court may continue or revoke the sentence of probation ... or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       We granted the defendant’s petition for certification to appeal, limited to the following issue: “Was the defendant entitled to appellate review of his claim that, in the circumstances of this case, forgery in the third degree was not a lesser included offense of forgery in the second degree?” State v. Yurch, 232 Conn. 923, 656 A.2d 671 (1995).


text:
    ALEXANDRA TEGUIS v. CAREY ANN REBER ET AL.
    (15157)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.
    Argued October 26
    decision released November 28, 1995

      David Tilles, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom was Rodd J. Man-tell, for the appellee (defendant St. Francis Hospital and Medical Center).
   PER CURIAM.

The sole issue in this certified appeal is whether the Appellate Court abused its discretion by dismissing an appeal that had not been timely filed. The plaintiff, Alexandra Teguis, brought a medical malpractice action against Carey Ann Reber and St. Francis Hospital and Medical Center. Before trial, the plaintiff withdrew the action against Reber. The jury returned a verdict in favor of the remaining defendant, St. Francis Hospital and Medical Center (defendant), and the trial court rendered judgment accordingly.

The plaintiff initiated proceedings for appellate review of the trial court’s judgment after that court had denied her motion to set aside the verdict. She filed a timely motion in the trial court for an extension of time to file her appeal. Although that motion was never acted upon, the plaintiff filed appeal papers in the Appellate Court on the assumption that the motion had been granted. When that assumption proved to be incorrect, the defendant moved the Appellate Court, pursuant to Practice Book § 4056, to dismiss the plaintiffs appeal as untimely filed. In the absence of objection by the plaintiff, the Appellate Court granted the defendant’s motion. The plaintiff thereafter moved the Appellate Court to reconsider its dismissal of her appeal, but the Appellate Court denied that motion.

We granted the plaintiffs petition for certification to appeal the propriety of the Appellate Court’s dismissal of her appeal. Under our case law the Appellate Court, in response to the defendant’s timely motion to dismiss filed pursuant to § 4056, was vested with discretion to determine whether to grant the motion or to permit the plaintiff to pursue a late appeal. Kelley v. Bonney, 221 Conn. 549, 559, 606 A.2d 693 (1992). At oral argument in this court, the plaintiff conceded that, in order to prevail, she would have to establish that the Appellate Court abused its discretion by granting the defendant’s motion to dismiss. After examining the entire record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. See L. & L. Builders, Inc. v. Parmelee, 221 Conn. 203, 206, 602 A.2d 1016 (1992); Booth v. Flanagan, 220 Conn. 453, 454, 599 A.2d 380 (1991); Lawler v. Lawler, 212 Conn. 117, 118, 561 A.2d 128 (1989).

The appeal is dismissed.

       Practice Book § 4056 provides in relevant part: “Lack of Jurisdiction; Other Defects in Appeal
      “Any claim that an appeal . . . should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal .... Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal . . . .”

       We granted the plaintiffs petition for certification to appeal, limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly grant the defendant’s motion to dismiss the appeal?” Teguis v. Reber, 231 Conn. 939, 653 A.2d 825 (1994).


text:
    STATE OF CONNECTICUT v. TYRONE ADAMS
    (15204)
    Peters, C. J., and Callahan, Borden, Norcott and Palmer, Js.
    Argued November 1
    decision released December 5, 1995

      Elizabeth M. Inkster, assistant public defender, with whom was James J. Ruane, special public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and Michael Pepper, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The sole issue in this certified appeal is whether the Appellate Court properly upheld, as an exercise of the trial court’s discretion, the court’s ruling that limited cross-examination of a prosecution witness for motive and bias. The defendant, Tyrone Adams, was convicted, after a jury trial, of two counts of aiding and abetting manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55 (a) (1). The Appellate Court affirmed the judgment; State v. Adams, 36 Conn. App. 473, 651 A.2d 747 (1994); and we granted the defendant’s petition for certification, limited to the issue of whether the trial court’s restriction on his right of cross-examination violated his state and federal constitutional rights of confrontation.

The defendant maintains that he was deprived of his constitutional right to confront a witness against him and to test the witness’ possible motive and bias for testifying against him, because the trial court would not permit him to undertake a full cross-examination of Christopher Roach, a prosecution witness. Roach was present at a violent altercation involving a large number of people at the Athenian Diner on Whailey Avenue in New Haven. Many gunshots were fired during this altercation. Two men were killed and Roach was shot in the arm. Id., 474-75. The defendant was charged with having abetted these killings.

At the defendant’s trial, Roach testified that he had seen Daryl Valentine fire the shots that killed the victims. Roach further testified that he had not seen the defendant at any time during the altercation, but that he had seen the defendant’s car drive off from the scene of the shooting. Another witness for the state, Byron McFadden, testified that he had heard the defendant urge the individual identified by Roach as Valentine to fire the shots that killed the victims.

Roach also testified regarding two statements about the incident that he had given the police before the trial. In the interim between the two statements, Roach had been arrested and charged with attempted assault in the first degree, criminal use of a firearm, reckless endangerment and unlawful discharge of a firearm. The defendant was the complainant against Roach for these charges. Id., 478-79.

The trial court allowed the defendant to cross-examine Roach with respect to his bias or motive arising out of his arrest. The defendant was permitted to elicit testimony concerning the nature of the charges that had been filed against Roach, and the fact that the defendant had been the complainant for these charges. The defendant was not, however, permitted to cross-examine Roach concerning the details of the incident giving rise to the arrest, including such matters as the exact circumstances of the crimes and the methods of committing the crimes. Id., 479.

As he did in the Appellate Court, the defendant contends that he had a right, under the federal and the state constitutions, to demonstrate a linkage between the details of Roach’s arrest and his animus toward the defendant. Under the federal constitution, however, as we have often recognized, the right to confrontation is not absolute. See, e.g., State v. Lee, 229 Conn. 60, 70-71, 640 A.2d 553 (1994); State v. Francis, 228 Conn. 118, 123-24, 635 A.2d 762 (1993); State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). The defendant has not argued that his state constitutional right of confrontation differs.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal should be dismissed on the ground that certification was improvidently granted. In the circumstances of this case, the Appellate Court reasonably concluded that the trial court had honored the defendant’s constitutional rights and had exercised its discretion properly in limiting the defendant’s cross-examination of Roach. It would serve no useful purpose for us to amplify the discussion contained in the opinion of the Appellate Court. See State v. Busque, 229 Conn. 839, 842, 643 A.2d 1281 (1994); State v. Murray, 225 Conn. 524, 527, 624 A.2d 377 (1993).

The appeal is dismissed.

       General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-55 provides in relevant part: “Manslaughter in the first degree: Class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”
      The defendant had initially been charged with two counts of aiding and abetting murder in violation of General Statutes §§ 53a-8 and 53a-54a and one count of aiding and abetting assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1). The trial court granted the defendant’s motion for judgment of acquittal on the assault charge. The state then filed a substitute information charging the defendant with two counts of aiding and abetting murder. The jury found the defendant guilty of two counts of the lesser included offense of aiding and abetting manslaughter in the first degree.

       We granted the defendant’s petition for certification to appeal, limited to the following issue: “Under the circumstances of this case, should the defendant have been allowed the cross-examination of the state’s key witness on the circumstances surrounding the arrest and the basis and motive for the subsequent statement?” State v. Adams, 232 Conn. 913, 914, 654 A.2d 357 (1995). We note that the state challenges the assumption that the witness in question was in fact the key witness against the defendant.

       Valentine was charged separately and is not involved in this appeal.


author: BERDON, J.

text:
    STATE OF CONNECTICUT v. JOHN DENBY
    (15155)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued September 21
    decision released December 5, 1995

      Shelley A. White, special public defender, with whom, on the brief, was Donald D. Dakers, special public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   BERDON, J.

The issues in this appeal are whether: (1) when a defendant is charged with possession of narcotics with intent to sell within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a (b), it is an essential element of the crime that the defendant has the specific intent to sell at a location that is within 1000 feet of a school; and (2) the trial court properly instructed the jury regarding the elements of § 21a-278a (b).

The defendant, John Denby, was charged with possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of cocaine with intent to sell within 1000 feet of a school in violation of §§ 21a-278 and 21a-278a (b). A jury found the defendant guilty as charged and the trial court sentenced him to an effective term of imprisonment of nineteen years.

The defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly failed to instruct the jury that a conviction pursuant to § 21a-278a (b) required the state to prove that the defendant specifically intended to sell narcotics at a location within 1000 feet of school property. The Appellate Court affirmed the judgment of conviction. State v. Denby, 35 Conn. App. 609, 646 A.2d 909 (1994). We granted the defendant’s petition for certification to appeal, and affirm the judgment of the Appellate Court based upon different reasoning.

As stated by the Appellate Court, the jury reasonably could have found the following facts. “On May 17,1992, New Haven police officers Andrew Muro and Peter Carusone were working in the Newhallville section of New Haven. Muro received information from an informant that the defendant was selling drugs at 51 Lilac Street, which was approximately 820 feet from the Lincoln Bassett School. He and Carusone, both of whom knew the defendant, drove by the address and saw the defendant on the front porch. They set up a surveillance of the defendant’s activities. Muro watched the front porch from a nearby alley. Carusone remained at a police substation parking lot, ready to assist Muro upon apprehension of the defendant.

“Muro observed a female walk up to the porch of the building and heard her say she ‘wanted one.’ The defendant reached into his right pants pocket, pulled out a clear plastic bag, removed an item from it, and handed it to the female. The female then gave the defendant money. A short time later, Muro saw the defendant carry out a second transaction with another individual [which was] similar to the previous transaction.

“After informing Carusone of his observations, the officers returned to the premises under surveillance where Muro encountered the defendant in the hallway and arrested him. In his right pocket, the defendant had a clear plastic bag containing packets of white powder that field-tested positive for cocaine.” Id., 612.

I

The Appellate Court declined to review the defendant’s claim that the trial court had failed to instruct the jury properly that the state must prove that the defendant had a specific intent to sell the narcotic at a location within 1000 feet of a school in violation of § 21a-278a (b). The defendant conceded that he had not raised the issue before the trial court, but sought to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), claiming that his federal and state due process rights had been violated because the specific intent under § 21a-278a (b) was an element of the crime. The Appellate Court held that the prohibition against selling narcotics within the school zone was merely a penalty enhancement and that the state “was not required to prove that the defendant specifically intended to sell within the 1000 foot zone because, by the clear language of the statute, such an intent is not an element of the crime.” State v. Denby, supra, 35 Conn. App. 616. The state concedes before this court that the intent to sell within 1000 feet of a school is an element of the crime. We agree with the state and the defendant, and disagree with the Appellate Court.

Our interpretation of § 21a-278a (b) is “guided by well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary. . . . Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 86, 662 A.2d 80 (1995), cert. denied, U.S. , 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995). As a threshold matter, therefore, we consider whether § 21a-278a (b) is plain and unambiguous on its face.

Upon review, we find the plain meaning of § 21a-278a (b) to be clear. The first sentence provides that if any person who is not drug-dependent violates § 21a-277 or § 21a-278 in one of the ways set forth therein, and does so within 1000 feet of a school, that person will receive an additional three year term of imprisonment. The second sentence of § 21a-278a (b) places an additional limitation on the location requirement: “To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.” This sentence further defines two of the ways previously described — that is, “transporting or possessing a controlled substance” — by adding that they ‘ ‘shall be with intent to sell or dispense in or on, or within’ ’ the 1000 foot zone. Therefore, the plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school.

The state is not, however, required to prove that the defendant knew that this location was within the zone. Ordinarily, the mental state required by a statute is expressly designated: “When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.” General Statutes § 53a-5. Section 21a-278a (b) specifically requires a mental state of “intent,” which must be applied to every element of that statute. The mental state of knowledge that the location is within the 1000 foot zone is not set forth in § 21a-278a (b). An “intent” element is not synonymous with a “knowledge” element, each of which is specifically defined in the penal code. The absence of any statutory requirement that the defendant knowingly sell within the prohibited school zone demonstrates that the legislature did not intend to make knowledge an element of the crime. If the legislature had wanted to make knowledge as to location of a school an element of the offense, it would have done so by specifically stating that the defendant possessed the narcotics with the intent to sell or dispense at a location that the defendant knew was in, or on, or within 1000 feet of a school. See State v. Nixon, 231 Conn. 545, 563, 651 A.2d 1264 (1995).

Thus the plain language of § 21a-278a (b) dictates only one construction. While “knowledge” on the part of the defendant as to location is not an element of § 21a-278a (b), the state is required to prove that the defendant intended to sell or dispense those drugs in his or her possession at a specific location, which location happens to be within 1000 feet of an elementary or secondary school.

II

We turn now to the question of whether the trial court properly instructed the jury regarding the elements of § 21a-278a (b). The defendant claims that the trial court failed to instruct the jury that the state must prove that possession with intent to sell or dispense must be within 1000 feet of a school. Although, as we previously indicated, the claim was not properly preserved at trial, the defendant further contends and the state concedes that because it concerns an element of the crime it is nonetheless reviewable under Golding. We agree that the jury instruction is subject to Golding review because the defendant raises a constitutional claim involving a fundamental right, and the record is adequate for review.

“It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) . . . .” (Citations omitted.) State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984). Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right “ ‘to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.’ ” Id., 414.

We turn, therefore, to the third prong of Golding. The defendant argues that the trial court instructed the jury that a violation of § 21a-278a (b) was established once the state proved a violation of § 21a-278 (b). Section 21a-278 (b), however, has no location element. The state argues that, viewed as a whole, the charge reflected the proper construction of the statute and thus adequately guided the jury in its verdict. Although the charge could have been more explicit as to the scope of the intent requirement as it pertains to the location of the sale, we agree with the state.

Our analysis begins with a well established standard of review. “When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Citations omitted; internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).

An examination of the entire jury charge reveals that each element of the crime set forth in § 21a-278a (b) was laid before the jury. The charge outlined the elements of the statute, stating that its purpose was to punish “any person not drug-dependent who possesses with the intent to sell or dispense any narcotic substance in or on or within 1000 feet of the real property comprising a public or private elementary or secondary school.” Further, the trial court stated that the elements were the same as those required of a conviction under § 21a-278 (b), with the “addition that the defendant did this in or on or within 1000 feet of the real property comprising a public or private elementary or secondary school.” This portion of the charge adequately addressed the location element, instructing the jury that conviction under this statute required a finding that the act of possession with intent to sell or dispense had taken place within the prohibited zone. A subsequent portion of the charge reiterated the location requirement, directing the jury that the state must prove “beyond a reasonable doubt all of the elements of this offense, that is [the defendant] knowingly possessed cocaine with the intent to sell and the place where he did sell was within 1000 feet of the real property comprising a public or private elementary school

The defendant’s claim that the trial court did not charge the jury regarding any obligation to find that he specifically intended to sell drugs at a location that happened to be within 1000 feet of a school is unsupported by the record. Further, the defendant’s claim that the trial court instructed the jury that a violation of § 21a-278a (b) was established once the state showed a violation of § 2 1a-278 (b) is incorrect. The charge clearly stated that conviction under § 21a-278a (b) required proof of all of the elements encompassed under § 21a-278 (b) plus the additional location element. Because this location requirement was the only additional element required by § 21a-278a (b), and because the charge adequately set forth this and all other required elements, we do not view this instruction as improper. See State v. Leroy, supra, 232 Conn. 7-8. We conclude that the trial court’s charge was correct in the law, sufficiently adapted to the issues of the case, and adequate to guide the jury. Id., 8.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1991) § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278, and who is not, at the time of such action, a drug-dependent person, by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.” Number 92-82 of the 1992 Public Acts amended this subsection to increase the distance from a school within which the provision applied to 1500 feet.

       The certified question is: “Where a defendant has been charged with possession of narcotics with intent to sell, within 1000 feet of a school, in violation of General Statutes §§ 21a-278 and 21a-278a (b), is it an essential element that the defendant has the specific intent to sell within 1000 feet of a school?” State v. Denby, 231 Conn. 941, 653 A.2d 823 (1994). Because the parties fully briefed the issue, and in the interests of judicial economy; see Beechwood Gardens Tenants’ Assn. v. Dept. of Housing, 214 Conn. 505, 509 n.4, 572 A.2d 989 (1990); we reach the second issue as to whether the trial court properly instructed the jury under § 21a-278a (b).

       See footnote 5.

       In State v. Golding, supra, 213 Conn. 239-40, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstance.” (Emphasis in original.)

       Before the trial court, the defendant argued and sought a jury instruction, which the court declined to give, that § 21a-278a (b) requires that the defendant knew that he was within 1000 feet of a school. On appeal before us, the defendant has abandoned this argument, and conceded in oral argument that the state need only prove that the location at which he sold or intended to sell the drugs he possessed was within the school zone.

       General Statutes § 53a-3 (11) provides: “Aperson acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”
      General Statutes § 53a-3 (12) provides: “A person acts ‘knowingly’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists."

       See footnote 4.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The trial court charged the jury as follows: “The defendant is charged in the second count of the information with violation of Connecticut General Statutes [§ 21a-278a (b)], which insofar as it pertains to this case reads as follows: any person not drug-dependent who possesses with the intent to sell or dispense any narcotic substance in or on or within 1000 feet of the real property comprising a public or private elementary or secondary school shall be punished. If you have found the defendant not guilty of the first count, possession of narcotics with the intent to sell, then you need not consider this count any further but should return a verdict of not guilty as to this count. If, however, you have found the defendant guilty of the charge of possession of narcotics with the intent to sell then you must go on to consider this charge, in order to convict the defendant of this charge the state must prove beyond a reasonable doubt that the defendant knowingly possessed cocaine with the intent to sell or distribute such substance. In other words, the allegations contained in count one, of the information in this case and in addition that the defendant did this in or on or within 1000feet of the real property comprising a public or private elementary or secondary school. The state has introduced evidence that a public school, Lincoln Bassett, is 800 feet away from the scene of this incident. If the state has proven beyond a reasonable doubt all of the elements of this offense, that is [he] knowingly possessed cocaine with the intent to sell and the place where he did sell was within 1000feet of the real property comprising a public or private elementary school, that is to say the real estate or school lot, including the school yard or playground, is applicable. Thus, if you find that the state has proved beyond a reasonable doubt all of the elements of this offense, that is knowingly possessed cocaine with the intent to sell within 1000feet of an elementary or secondary school and at that time he was not a drug-dependent person, you must find the defendant guilty of this charge.” (Emphasis added.) Later, the trial court used a chart to illustrate the elements of § 21a-278a (b): “Two charges, first charge violation of [§ 21a-278 (b)], initially the state has to prove possession, two, with intent to sell, three, a narcotic. . . . Now having finished with count one then you go into count two, and count two is the same as this one with one exception, you should note, possession, intent to sell narcotics, same thing . . . not a drug dependency and one other charge, 1000feet of a school ....
      * ** *
      “And you recall that on the second count, one of the offenses is like unto the first count, they are the exact same with one addition, so if you, so you have to find that he’s drug-dependent, so if you don’t find him guilty of the first count you can’t find him guilty of the second count.” (Emphasis added.)