author: Hull, J.

text:
    Capital Consulting Group, Ltd. v. Pierre Rochman et al.
    (14074)
    Shea, Glass, Covello, Hull and Borden, Js.

      Argued January 18
    decision released April 23, 1991

      Stephen D. Wipperman, for the appellant (defendant Argus Laundries, Inc.).

      Steven W. Varney, with whom, on the brief, was Nancy M. Kostal, for the appellee (plaintiff).
   Hull, J.

The sole issue in this appeal is whether the trial court properly determined that an action brought by the plaintiff, Capital Consulting Group, Ltd., to recover a brokerage commission from the defendant Argus Laundries, Inc., was not barred by General Statutes § 20-325a (a). We affirm.

The material facts are as follows. The plaintiff is a professional business broker and is not licensed as a real estate broker in Connecticut. The defendant is a corporation engaged in the laundry and dry cleaning business in various locations throughout the Danbury area. On April 7,1986, the plaintiff and the defendant executed an exclusive right of sale agreement, pursuant to which the plaintiff agreed to use its efforts to secure a buyer for the defendant’s business, “including furniture, fixtures, machinery, equipment, trade name and good will.” In exchange, the defendant granted the plaintiff, for a period of six months, “the exclusive right and authority to sell, lease, trade or otherwise dispose” of the business, according to specified terms. The agreement further specified that, in exchange for finding a buyer, the defendant would pay the plaintiff a commission of 10 percent of the sale price or $50,000, whichever was greater.

In its efforts to secure a buyer for the business, the plaintiff prepared a valuation on the basis of the gross annual sales of the business. The plaintiff also prepared a detailed brochure, known as the book, that described the business, its operations, locations, leases and facilities. Although the book mentioned the leases, the defendant had expressly forbidden the plaintiff’s negotiation of the leases and had advised the plaintiff to refrain from discussing the leases, in order to conceal the proposed sale of the business from the lessors. Thereafter, the plaintiff presented to the defendant a ready, willing and able buyer, Andrew Sohn, who eventually purchased the defendant’s stock and a portion of the defendant’s business assets at a price of $650,000.

The plaintiff instituted the present action, claiming, inter alia, that the defendant had wrongfully withheld a $65,000 commission owed to the plaintiff following the sale to Sohn. The defendant denied the claim, arguing, inter alia, that because the plaintiff was not licensed as a real estate broker, pursuant to General Statutes (Rev. to 1985) § 20-312, the plaintiff’s action to recover a commission was barred by § 20-325a (a). Having determined that, in procuring a buyer for the business, the plaintiff had not engaged in a real estate transaction and that, therefore, the plaintiff had not acted as a real estate broker within the meaning of the licensing statute; General Statutes (Rev. to 1985) § 20-312; see also General Statutes § 20-311 (1) (defining real estate broker); the trial court rejected § 20-325a (á) as a defense and rendered judgment, in part, for the plaintiff, in the amount of $65,000. The defendant appealed to the Appellate Court and we subsequently transferred the appeal to this court pursuant to Practice Book § 4023.

The defendant claims that because the proposed sale of the business contemplated the continuation of the business’ leases, the trial court should have determined that the plaintiff, in attempting to initiate the sale, had acted as a real estate broker without a license, in violation of § 20-312, and that, therefore, the action to recover a commission was barred by § 20-325a (a). We disagree.

The trial court determined, as a matter of fact, that the services for which the plaintiff sought a commission did not involve a real estate transaction and that, therefore, the plaintiff did not act as a real estate broker within the meaning of § 20-312. See LaMalfa v. Higgins, 38 Conn. Sup. 509, 513, 452 A.2d 320 (1982); see also Guaranty Bank & Trust Co. v. Connecticut Real Estate Commission, 192 Conn. 439, 442, 471 A.2d 1389 (1984); Kingsley v. Sadi International Co., 5 Conn. App. 76, 78, 496 A.2d 986 (1985). “Under familiar principles of appellate review, a trial court’s factual finding will not be reversed or modified unless it is ‘clearly erroneous in view of the evidence and pleadings in the whole record.’ Practice Book § 4061; Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 159-60, 510 A.2d 440 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” DiBella v. Widlitz, 207 Conn. 194, 198, 541 A.2d 91 (1988). “The issue is not whether the trial court could have reached a different conclusion but whether the conclusion which it did reach is clearly erroneous.” Dooley v. Leo, 184 Conn. 583, 588, 440 A.2d 236 (1981); see also Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984); Salvio v. Salvio, 186 Conn. 311, 326-27, 441 A.2d 190 (1982). Because these factual findings provide firm support for the trial court’s judgment, in order to succeed on its claim, the defendant must show that these findings were clearly erroneous. This the defendant has failed to do.

The defendant cites cases in which courts have concluded that evidence that the sale of a business involves some element of real property, no matter how insignificant, is sufficient to sustain a finding that the sale involves an interest in real estate. See Marina Management Corporation v. Brewer, 572 F.2d 43, 46-47 (2d Cir.), cert. denied, 439 U.S. 829, 99 S. Ct. 104, 58 L. Ed. 2d 123 (1978) (sale of physical assets of marina included sale of land); T.R. Preston Co. v. Pasay, Superior Court, judicial district of Windham, Docket No. CV-84-0028111-S (January 23, 1985) (11 Connecticut Law Tribune, No. 31, p. 10, August 5,1985) (contract for sale of package store business involved an interest in real estate, i.e., right of purchaser to continue to operate business on defendants’ real estate); Salvatore v. Pray, Superior Court, judicial district of Stamford-Norwalk, Docket No. 0041220 (January 27, 1981) (7 Connecticut Law Tribune, No. 23, p. 16, June 8,1981) (sale of used automobile franchise included sale of land on which located). These cases are inapposite, however, because in the present case the trial court found that no element of real estate was involved in the transaction that the plaintiff sought to initiate. This finding is overwhelmingly supported by the evidence.

In rendering its decision, the trial court considered the following evidence to be persuasive: There were no references to leases in the right of sale agreement and where the agreement referred to the defendant’s “business,” separate business locations were not specified. It was undisputed that the plaintiff had been expressly instructed by the defendant that it was not to negotiate the leases and that the defendant would handle the leases. Although the book prepared by the plaintiff mentioned the leases, the references were merely descriptive and, therefore, this document was not inconsistent with the defendant’s instructions. The plaintiff had proposed that the appraised value of the business, which was the basis for determining the asking price, be calculated on the basis of gross annual sales rather than on the value of the business’ assets, a proposal that was not challenged by the defendant as unreasonable or inconsistent with the nature of the sale. Finally, there was credible evidence that the leases were not discussed when the plaintiff presented the proposed sale involving Sohn to the defendant.

The defendant’s claim is a patent but necessarily futile attempt to retry the facts. The defendant has failed to establish that, in light of the evidence, the factual findings of the trial court are clearly erroneous and that, as a result, the trial court’s judgment was unsupported by the facts found and legally or logically incorrect. See Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, supra. We conclude, therefore, that the trial court properly rejected § 20-325a (a) as a defense and rendered judgment for the plaintiff in its action to recover a brokerage commission.

The judgment is affirmed.

In this opinion the other justices concurred.

       During the time in question, the plaintiff, represented by its president, Thomas Monaghan, and his partner, David Kania, was doing business as Connecticut Business Exchange.

       Pierre Rochman, the president of Argus Laundries, Inc. (Argus), who represented Argus in its dealings with the plaintiff, was the named defendant in the plaintiff’s action to recover a commission. Because the trial court rejected the plaintiff’s claims of personal liability on the part of Rochman and because Argus is the sole appellant in this appeal, our reference herein to “the defendant” is to Argus, while Rochman is referred to by name.

       General Statutes § 20-325a (a) provides: “No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.”

       The plaintiff was authorized to sell the business for $750,000. The defendant would require $250,000 cash as a down payment and the $500,000 balance would be secured by a fifteen year promissory note at 11 percent interest.

       The plaintiffs amended complaint set forth two counts of each of the following, one naming the defendant and the other naming Rochman, for a total of ten counts: (1) breach of contract; (2) wrongful withholding of a commission; (3) fraud; (4) unjust enrichment; and (5) violation of the Connecticut Unfair Trade Practices Act. General Statutes § 42-110a et seq. During trial, the plaintiff withdrew the fraud counts.

       General Statutes (Rev. to 1985) § 20-312 provides in pertinent part: “No person shall act as a real estate broker or real estate salesman without a license issued by the commission, unless exempted by the provisions of this chapter.”

       By way of special defenses, the defendant and Rochman argued that: (1) the claims under the Connecticut Unfair Trade Practices Act were barred by the statute of limitations; (2) the plaintiff had rescinded the exclusive right of sale agreement; (3) the plaintiff had misrepresented certain facts; (4) the action was barred by General Statutes § 20-325a (a); (5) the exclusive right of sale agreement was invalid; and (6) because he had acted in a representative capacity, Rochman was not personally liable. They also filed a counterclaim, alleging that the plaintiff had misrepresented certain facts and thereby violated the terms of the sale agreement.

       General Statutes § 20-311 (1) provides in pertinent part: “ ‘Real estate broker’ means any person, partnership, association or corporation which, for another and for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of, an estate or interest in real estate If

       The trial court rejected the five counts of the complaint alleging liability on the part of Roehman, finding that the plaintiff had failed to establish personal liability on his part. The trial court also determined that the plaintiff had failed to sustain its burden of proof on the counts alleging unjust enrichment and violation of the Connecticut Unfair Trade Practices Act, and that the defendant had failed to sustain its burden of proof with respect to the counterclaim. Judgment was rendered for the plaintiff on the count of the complaint alleging wrongful withholding of a brokerage commission, and on the counterclaim.

       The defendant, in its brief, asserts that the plaintiff was “engaging in the real estate business” without a license in violation of General Statutes (Rev. to 1985) § 20-312. Because § 20-312 prohibits “act[ing] as areal estate broker or real estate salesman without a license,” and nowhere mentions “engaging in the real estate business”; compare General Statutes § 20-313 (person “who desires to engage in the real estate business” shall apply to the real estate commission for specific license desired); and because it is undisputed that the plaintiff’s brokerage activities form the basis for the defendant’s claim, we presume that “act[ingj as a real estate broker . . . without a license” is the substance of the defendant’s claim.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Alphonso Johnson v. Commissioner of Correction Rodney Henderson v. Commissioner of Correction Alan Canady v. Commissioner of Correction Keith Freeman v. Commissioner of Correction Dennis Jackson v. Commissioner of Correction Lindsay Johnson v. Commissioner of Correction Christopher Leecan v. Commissioner of Correction John Manley, Jr. v. Commissioner of Correction William Mason v. Commissioner of Correction Sherman Miles v. Commissioner of Correction Daryl Ruth v. Commissioner of Correction Davis Tyson v. Commissioner of Correction Eddy Woolcock v. Commissioner of Correction Richard Austin v. Commissioner of Correction Napier Talton v. Commissioner of Correction Jonathan Watley v. Commissioner of Correction James Brantley v. Commissioner of Correction Wilbert Hinton v. Commissioner of Correction Luther Fleming v. Commissioner of Correction Armando Valeriano v. Commissioner of Correction Jose Casul v. Commissioner of Correction Bruce Rogers v. Commissioner of Correction Leamond Suggs v. Commissioner of Correction Nathaniel Carter v. Commissioner of Correction William Parker v. Commissioner of Correction Reginald Jones v. Commissioner of Correction Antonio Feliciano v. Commissioner of Correction William Dupree v. Commissioner of Correction Roger Harrell v. Commissioner of Correction Cecilio Deleon v. Commissioner of Correction Floyd Simms v. Commissioner of Correction

      (13946)
    (13947)
    (13948)
    (13949)
    (13950)
    (13951)
    (13952)
    (13953)
    (13954)
    (13955)
    (13956)

      (13957)
    (13958)
    (13959)
    (13960)
    (13972)
    (13973)
    (13974)
    (13975)
    (13976)
    (13977)
    (13978)
    (13979)
    (13980)
    (13981)
    (13982)
    (13984)
    (13985)
    (13986)
    (13987)

      (13988)
    Shea, Covello, Hull, Borden and Santaniello, Js.
    Argued December 7, 1990
    decision released April 23, 1991

      Elizabeth M. Inkster, assistant public defender, with whom was G. Douglas Nash, public defender, for the appellants (petitioners in Docket Nos. 13946 through 13960).

      Charlotte G. Koskoff, with whom was Stephen Frazzini, for the appellants (petitioners in Docket Nos. 13972 through 13988).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, was John J. Kelley, chief state’s attorney, for the appellee (respondent).
   Shea, J.

In each of these thirty-one habeas corpus actions, the petitioner claims that his conviction is constitutionally flawed because the pool of veniremen available for selection of a petit jury for his trial and, in some instances, for selection of the grand jury that indicted him, was tainted by a disproportionate paucity of members of his minority group in violation of his right to equal protection of the laws, as guaranteed by the fourteenth amendment to our federal constitution. All the petitioners rely upon the decision of the United States Court of Appeals for the Second Circuit in Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), holding that the town quota system for selecting veniremen established by General Statutes (Rev. to 1975) § 51-220 had resulted in underrepresentation of black people in the pool of prospective jurors and grand jurors serving New Haven County in 1975, when the trial of the petitioners in that case took place, and that this disparity violated the principle of equal protection. A similar claim presented to this court on appeal as a violation of the right to a jury composed of a fair cross section of the community under the sixth amendment to our federal constitution, together with many other jury composition claims, had been rejected in State v. Haskins, 188 Conn. 432, 436-41, 469, 450 A.2d 828 (1982).

Unlike the situation in Alston, however, none of these petitioners presented any effective challenge to the array of grand or petit jurors before trial, as required by Practice Book § 811, and, accordingly, they would ordinarily be deemed to have waived the infirmities now relied upon to set aside their convictions, as Practice Book § 810 provides. The habeas court ruled, nevertheless, that there had been no such waiver because the evidence did not indicate that the petitioners had deliberately bypassed their right to challenge the array of prospective jurors or grand jurors. The court also rejected an alternative claim of the petitioners that the failure of their attorneys to raise and pursue challenges to the array constituted ineffective assistance of counsel in violation of the sixth amendment to our federal constitution. Proceeding to the merits of the claim of disproportionate representation in the jury pools, the court concluded that the petitioners had not established any underrepresentation of black or Hispanic people for the years involved, 1976 through 1983, because no evidence as to the actual composition of those pools based upon observation or records of their membership had been presented. Accordingly, judgments were rendered dismissing each petition.

On appeal, the petitioners contest the conclusion of the habeas court that they have failed to prove any underrepresentation of the minority groups to which they belonged in the jury arrays available for the selection of jurors and grand jurors at the time of their convictions. They also maintain that the judgments should be reversed because of the refusal of the court to grant their petitions on the alternative ground of ineffective assistance of counsel based upon the failure of their attorneys to present timely challenges to the array. The state claims, as an alternative ground for affirming the judgments, that the applicable standard for reviewability of these belated challenges to the array is the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and not “deliberate bypass,” as proclaimed in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

We conclude, contrary to the habeas court’s view, that the appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial because of a procedural default, such as failure to challenge the array, is the Wainwright standard of “cause and prejudice,” as the state contends. We also decide that the petitioners have not satisfied that standard. We affirm the conclusion of the habeas court, however, that the petitioners have not demonstrated ineffective assistance of counsel, although on grounds different from those relied on by the court. Because we conclude that habeas review is precluded by the failure to file challenges to the array before trial, as required by § 811, we do not address the merits of the equal protection claims of the petitioners.

The pertinent facts are not disputed. All the petitioners are black or Hispanic and were convicted during the period that § 51-220 remained in effect. This statute, which originated in colonial times, specified the number of jurors to be chosen yearly from each town of this state according to a classification based on the population of the town. The number of jurors from a town, however, was not uniformly proportional to its population but was skewed to provide for larger proportions of jurors from smaller towns. During the period when the petitioners were convicted, the statute, at its extremes, provided for thirty jurors in towns with populations of 750 through 1500, or 2 percent of their populations, while towns with populations of more than 100,000 were allowed 1012 jurors, or 1 percent of their populations. No provision was made for additional jurors from towns with populations substantially greater than 100,000, such as New Haven, where most of the black and Hispanic people in the county reside.

Only four of the petitioners filed challenges to the array and these were never pursued. In the habeas court the petitioners attempted to estimate retrospectively the impact of § 51-220 on the proportion of black and Hispanic people in the jury arrays for the years 1976 through 1983 by applying statistical theory to census data. According to the statistical method used, the statute resulted in shortfalls projected on the basis of population varying from 3 percent to 7 percent of the number of black or Hispanic jurors for all the petitioners, except two of the three Hispanic petitioners, whose shortfalls were 18 percent and 16 percent. In Alston v. Manson, supra, 258, the court concluded on the basis of a shortfall of 1.58 percent for black jurors in New Haven county not only that § 51-220 had a disparate impact but also that a “presumption of discriminatory intent” arose from its existence, which the state had failed to rebut.

I

In Fay v. Noia, supra, 438-39, the United States Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state court proceedings resulting in his conviction. The court recognized, however, a limited discretion in the federal habeas judge to “deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Id., 438. This deliberate bypass standard for waiver required “ ‘an intentional relinquishment or abandonment of a known right or privilege’ ” by the petitioner personally and depended on his “considered choice.” Id., 439. “A choice made by counsel not participated in by the petitioner does not automatically bar relief.” Id. Under this standard, the habeas court’s conclusion in these cases, that there had been no deliberate bypass of the right to challenge the jury array because the petitioners were unaware of their right to do so, is unassailable. The state does not contend otherwise.

The deliberate bypass standard of Fay was implicitly abandoned in two subsequent cases involving post-conviction challenges to grand juries that, like the petitions before us, were based on the exclusion of minorities. In those cases the court enforced explicit waiver provisions of state and federal procedural rules similar to § 810 and § 811 by declining to consider the merits of the constitutional claims raised. Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). In Wainwright v. Sykes, supra, 87, the court expressly rejected the “sweeping language” of Fay, “which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention.” The court upheld a state court’s refusal to decide the merits of a claimed Miranda violation first raised in a posttrial motion and in state habeas corpus proceedings, contrary to a state “contemporaneous objection” rule. The court adopted as a new standard for federal habeas review the rule set forth in Francis v. Henderson, supra, 542, that “[i]n a collateral attack upon a conviction,” the petitioner must make “not only a showing of ‘cause’ for the defendant’s failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice.” Thus was born the Wainwright “cause and prejudice” standard for habeas review.

The petitioners claim, nevertheless, that this court, despite the demise in Wainwright of the deliberate bypass standard for maintaining a federal habeas corpus petition, has adhered to that standard in state habeas proceedings. We first adopted the deliberate bypass standard for state habeas proceedings in 1966, three years after Fay had been decided. Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966). “We hold . . . that a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to us if he alleges and proves by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal.” Id. In our first reference to the Wainwright revision of the federal standard, we distinguished between strategic or tactical decisions of the kind normally committed to counsel and those left to the defendant himself, such as “whether to plead guilty, to forego the assistance of counsel or to refrain from an appeal.” McClain v. Manson, 183 Conn. 418, 428-29 n.15, 439 A.2d 430 (1981). For the latter category, specifically with respect to the failure to appeal, we indicated that the deliberate bypass standard of Fay would be applicable. Id. We have continued to apply the deliberate bypass standard to habeas petitioners seeking the determination of issues that should properly have been raised on appeal. Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988); Payne v. Robinson, 207 Conn. 565, 568-69, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); Paulsen v. Manson, 193 Conn. 333, 337-38, 476 A.2d 1057 (1984); D’Amico v. Manson, 193 Conn. 144, 146-47, 476 A.2d 543 (1984); Morin v. Manson, 192 Conn. 576, 579, 472 A.2d 1278 (1984); Turcio v. Manson, 186 Conn. 1, 3, 439 A.2d 437 (1982).

Since the advent of Wainwright we have not in a habeas proceeding applied the deliberate bypass standard to a procedural default in the trial court, such as a failure to challenge a jury array before trial, except in one instance. In Payne v. Robinson, supra, 569, we indicated that the exception for unpreserved constitutional claims articulated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), so frequently invoked on direct appeal, should apply also “to constitutional claims raised for the first time in a collateral proceeding so long as they are not barred by the petitioner’s deliberate bypass of a direct appeal.” We referred specifically to “claims that were not properly preserved at trial when they facially implicate fundamental constitutional rights and are adequately supported by the record.” (Emphasis added.) Payne v. Robinson, supra. In State v. Evans, supra, 70-71, which was a direct appeal from the judgment of conviction in the trial court, we rejected for lack of an adequate record a claim similar to those of these petitioners, “that the jury were selected in a constitutionally impermissible manner in that members of the black race were systematically excluded from the jury . . . .” That claim had first been raised on appeal and we declared that, “[sjince the record discloses nothing whatsoever to support this claim, we have no basis for determining its merits and do not consider it.” Id, 71. Thus, even if we were to follow Payne in these cases with respect to the applicability of the Evans standard to constitutional claims not preserved at trial because of a procedural default, these petitioners could not prevail since the trial court record in each case contains nothing regarding the composition of the petit or grand juries that they belatedly challenge.

We have concluded, however, that our dictum in Payne concerning the applicability of the Evans standard of appellate review to constitutional claims first raised in postconviction habeas corpus proceedings was inappropriate. We failed to give sufficient consideration to the special problems that are likely to arise relating to the feasibility of a second trial when a conviction is set aside by a habeas court rather than by an appellate court. These problems are related mainly to the more extended delay of the second trial that frequently results from a reversal of a conviction by a habeas court. There is no statute of limitation or other time limit that would bar a habeas petition. United States v. Smith, 331 U.S. 469, 475, 67 S. Ct. 1330, 91 L. Ed. 1610 (1947). Ordinarily the petition may not be filed until appellate remedies have been exhausted, lest the petitioner be charged with a deliberate bypass of an appeal. An additional record must be created in the habeas court, which may require extensive testimony. If the petitioner is successful in overturning his conviction, another appeal is almost inevitable.

A direct appeal folio-wing a conviction, on the other hand, is subject to strict time limits at each stage of the proceeding. Except for extraordinary cases, an appeal in this state is ordinarily determined within approximately one year from the date it was filed. The greater time lapse that results when a second trial is ordered by a habeas court has a serious impact on the availability of witnesses and other evidence for the second trial. Memories fade with the passage of time, exhibits are lost, and other evidence is less likely to be available. Appellate counsel would have less incentive to raise on appeal all arguable constitutional claims of the defendant if another opportunity to raise such claims were available in the habeas court. We are convinced that these consequences would be sufficiently harmful to the administration of justice in this state as to require that we withdraw our dictum in Payne concerning the applicability of the Evans standard for appellate review to habeas corpus proceedings.

Apart from Payne, the petitioners’ claim of continued adherence by this court to the deliberate bypass standard for habeas corpus review following its abandonment by the federal courts is unfounded with respect to trial court procedural defaults. We have expressly reserved the issue of whether to adopt the federal cause and prejudice standard for procedural defaults in the trial court, because it has not become necessary previously to resolve that issue. Valeriano v. Bronson, supra, 83 n.7; McClain v. Manson, supra, 429 n.15. With respect to such defaults on appeal, as previously noted, we have not applied the federal standard. Valeriano v. Bronson, supra, 86; Paulsen v. Manson, supra, 337-38; D’Amico v. Manson, supra, 148; Morin v. Manson, supra, 579; Turcio v. Manson, supra, 3. These petitions, however, afford an appropriate occasion for declaring our adoption of the federal standard for habeas review with respect to constitutional claims not properly preserved because of a trial court default. If deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial. It is not common practice and would be unduly cumbersome to establish a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial when such rights are involved. Most of these choices during trial, such as whether to move for suppression of evidence or to cross-examine a particular witness, must necessarily be left to counsel, subject to the requirement that his performance satisfy reasonable standards of competency. In those rare instances in which a deliberate bypass is found, of course, habeas review would be barred for that reason alone, apart from the cause and prejudice standard. Fay v. Noia, supra, 438-39.

We are persuaded that habeas review of constitutional claims never raised in the trial court, in violation of our rules of practice, would thrust too great a burden on our criminal justice system. Commenting specifically upon the necessity for enforcement of a rule requiring that challenges to the composition of grand juries be made before trial, the United States Supreme Court has declared: “If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.” Davis v. United States, supra, 241; see Vena v. Warden, supra, 367. These considerations are especially significant for the thirty-one petitioners now before us, whose trials took place between seven and sixteen years ago. Furthermore, if the jury composition claims had been raised at trial, it would have been possible to ascertain by observation, with greater certainty than by statistical analysis based on only one of many factors affecting jury composition, whether there was any actual disparity of minority representation among the jurors available for selection in each case.

We need not in this case consider whether some revision in our adherence to the deliberate bypass standard for procedural defaults in the appellate process is warranted. The federal courts have refused to except procedural defaults at the appellate level from the application of the Wainwright cause and prejudice standard. Murray v. Carrier, 477 U.S. 478, 489-90, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). Some of the evil consequences we have mentioned with respect to trial court defaults that delay the resolution of issues that should have been decided expeditiously by appeal also arise when defendants inexcusably defer the filing or processing of an appeal and utilize habeas corpus in order to circumvent the appellate procedural bar. This question, however, is not presently before us and we leave it for another time.

We conclude, therefore, that the habeas court, after finding that the petitioners had not deliberately bypassed their right to review of their jury composition claims, should have then applied the Wainwright cause and prejudice standard for reviewability of constitutional claims that were not raised seasonably, as required by a trial court procedural rule. Unless the petitioners can satisfy that standard, they are not entitled to review of their claims on the merits.

II

We must now consider whether the petitioners have satisfied the federal habeas standard for reviewability when there has been a procedural default, “cause and prejudice.” The habeas court concluded that the petitioners had demonstrated cause but not prejudice. We disagree with the first conclusion and, therefore, find it unnecessary to discuss the second, because, for reviewability, a federal petitioner must establish cause and prejudice conjunctively. Murray v. Carrier, supra, 496-97. “[A]ny prisoner bringing a constitutional claim to the federal court house after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.” Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982).

The source of the requirement that good cause be shown to excuse a procedural default was the provision of Rule 12 (b) (2) of the federal rules of criminal procedure that failure to raise defenses or objections required to be made before trial “ ‘constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.’ ” Davis v. United States, supra, 236. Implicitly “cause” denotes good cause. See United States v. Harrelson, 705 F.2d 733, 738 (5th Cir. 1983); United States v. Johnson, 614 F.2d 622, 623 (8th Cir. 1980); see also Davis v. United States, supra, 256 (Marshall, J., dissenting).

In finding such cause in these cases, the trial court concluded that, because it was the “settled law” in Connecticut that challenges to the constitutionality of § 51-220 would have been futile prior to the federal court decision in Alston, the legal basis for making such a constitutional claim was not reasonably available to the attorneys representing the petitioners at the time of their trials, all of which preceded that decision. The court relied upon a statement in Reed v. Ross, 468 U.S. 1, 14, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984), that “the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement [of cause] is met.” “Counsel’s failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State’s procedural bar.” Id., 15.

We disagree with the habeas court’s conclusion that a challenge to the array based upon underrepresentation of black or Hispanic people stemming from the impact of § 51-220 was sufficiently novel at the time of the petitioners’ trials to excuse their failure to raise such a claim before trial. It is true that in State v. Townsend, 167 Conn. 539, 548-50, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975), this court had rejected a claim that § 51-220 operated to exclude a disproportionate number of black people from the jury pools because of their residence in Norwalk, Stamford, and Bridgeport, three urban towns of Fairfield County. The basis for denying this claim, however, was the failure to present evidence of “what percentage of the black residents in these towns are registered voters and whether they are more concentrated in one town than another,” because “[j]uror selection is not based on residence, but on voter registration.” Id., 549 We concluded that “it is impossible to decide this claim on the data presented.” Id., 549-50. Townsend can hardly be viewed as upholding the constitutionality of § 51-220 in the context of evidence sufficiently demonstrating that its town quota system of juror selection had resulted in underrepresentation of black people qualified as registered voters to become jurors. Thus, it was not the “settled law in Connecticut” that challenges to the array of jurors based upon the influence of § 51-220, if properly presented, would be futile.

Furthermore, even if the trial court’s assumption were correct concerning the inevitable outcome of motions to challenge the array in this state at the time the petitioners were tried, the futility of presenting such a challenge in a state court is not a sufficient excuse for failure to do so at trial. Engle v. Isaac, supra, 130. “If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes.” Id. “[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray v. Carrier, supra, 486-87.

From the viewpoint of federal constitutional law at the time of the petitioners’ trials, it can hardly be contended that there was no reasonable basis for challenging a jury array upon the ground that a statute, such as § 51-220, might have a disproportionate impact on the availability of minority jurors. Such a claim had been made prior to 1975 in State v. Townsend, supra, before any of these petitioners had been tried and was not categorically rejected. Challenges to jury composition have been the subject of litigation in the federal courts for more than a century. See Neal v. Delaware, 103 U.S. 370, 394, 26 L. Ed. 567 (1880); Virginia v. Rives, 100 U.S. 313, 321, 25 L. Ed. 667 (1879); Strauder v. West Virginia, 100 U.S. 303, 309, 25 L. Ed. 664 (1879). The statistical decision theory as applied to jury composition, which was relied on in Alston to establish the improbability that mere chance might account for the disparities claimed, had been circulating at least since 1966 and had been recognized as an appropriate analytical device in a decision of the United States Supreme Court argued in 1976. See M. Finkelstein, “The Application of Statistical Decision Theory to the Jury Discrimination Cases,” 80 Harv. L. Rev. 338 (1966); see also Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977).

This case does not present a circumstance heretofore recognized as a ground for excusing a procedural default, such as when the United States Supreme Court “has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application.” Reed v. Ross, supra, 17. Alston did not purport to expound any new constitutional principles but merely upheld the findings of the federal district court that (1) the defendants had established a prima facie case of discrimination against black jurors on the basis of an estimate of the probable impact of § 51-220 on the jury pool for New Haven County in 1975 calculated by use of the statistical decision theory; and (2) the state had failed to refute the inference of discrimination raised by the statistical evidence. The legal principles relied upon had been set forth in Castaneda v. Partida, supra, and the only novelty in the Alston decision was the success of the defendants in persuading the federal district and circuit courts to conclude that a presumption of intentional discrimination on the part of the legislature was warranted because of the disparate impact of § 51-220 on black residents of New Haven County.

We conclude, therefore, that the habeas court was incorrect in finding that there was no reasonable basis for raising a challenge to the array grounded upon § 51-220 at the time of the petitioners’ trials, all of which followed the trial of the defendants in Alston. Accordingly, the petitioners have failed to demonstrate that there was good cause for their failure to challenge the jury arrays before trial.

Ill

The remaining ground upon which the petitioners seek to have their convictions set aside is that the failure of their attorneys to make and pursue challenges to the arrays available for selection of the grand or petit jurors who considered their cases constituted ineffective assistance of counsel in violation of their right to competent legal representation created by the sixth amendment to our federal constitution.

“[T]he right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). There are two components of a claim of ineffective assistance of counsel. “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The trial court held that these petitioners had not satisfied either component. It concluded that the failure of their counsel to challenge the composition of the arrays was reasonable in view of the “settled law” in this state regarding the constitutionality of § 51-220. The court also concluded that the petitioners had not shown prejudice because (1) there was no evidence that the outcome of their cases would have been different if the jurors who had indicted or convicted them had included more members of their minority groups, and (2) its finding that the evidence did not establish the claimed equal protection violation necessarily implied that there had been no prejudice.

We have expressed in Part II our disagreement with the habeas court’s view of the “settled law” concerning the viability of a constitutional challenge to § 51-220 based upon its impact on minority representation in jury arrays. Accordingly, we reject the ground relied on by the court for concluding that counsel performanee had not been deficient. We conclude, nevertheless, that the attorneys representing the petitioners did not fall below the Strickland standard by failing to challenge the arrays. Thus we affirm the court’s ultimate conclusion that the petitioners had not demonstrated ineffective assistance of counsel. It is unnecessary, therefore, for us to address the question of prejudice, which the court decided adversely to the petitioners.

“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, supra, 687-88. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., 688. “It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Citations omitted.) Id., 689. “We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.” Engle v. Isaac, supra, 134.

The petitioners rely largely on the hindsight provided by the decision in Alston as setting the professional norms for counsel performance in their cases, which were disposed of prior to that decision. In that case, which was tried in New Haven in 1975, the defendants, who were black, made an all-encompassing challenge to the petit jury array based upon the exclusionary effect of the jury selection system on such persons as teachers, students, clergymen, women, and people of low income and poor education, but also including black people. The principal thrust of the claim of discrimination against blacks was the disparate impact on them of the statutory requirement existing in 1975 that jurors be electors, because of their failure at that time to register as voters in the same proportion as the general population. Among the various claims raised in the briefs when the defendants appealed to this court, however, was some reference to the discriminatory effect on blacks of the statutory town quota system of juror selection. Conn. Supreme Ct. Records & Briefs, Vol. A-807, June Term, 1982, Part 3, Haskins Reply Brief, p. 7, and Alston brief, p. 20; see State v. Haskins, supra, 439-40. This challenge to the array was viewed by this court as presenting a claim that their right under the sixth and fourteenth amendments to our federal constitution had been violated because the array did not represent a fair cross section of the community rather than as an equal protection of the laws claim. State v. Haskins, supra, 436-41, 469; see also Alston v. Lopes, supra, 994 n.1. The statistical evidence that was relied upon in Alston to prove that § 51-220 had caused under-representation of black people in the jury array was never presented at trial or to this court, but was first brought forth in the federal district court. Alston v. Lopes, supra, 992.

The petitioners’ claims of ineffective assistance of counsel are based solely upon the failure of their attorneys to perceive what the Alston attorneys, at least in 1985 before the federal district court, did perceive, that a viable equal protection challenge might be based upon the disparate impact of § 51-220 on minority representation on juries. We do not agree that such a failure constitutes a violation of the Strickland standard for competent representation of a criminal defendant. Even with the hindsight provided by Alston, it is debatable whether a challenge to the array, even if successful, must inevitably redound to the benefit of a criminal defendant. Unlike an acquittal, which is dispositive of the charge, a successful challenge to the array simply delays a final resolution of the case in the trial court while a different jury array is assembled and, when a defendant has not been released on bond, often may result in prolonged incarceration of defendants ultimately found not guilty. Furthermore, upon observation of the members of a grand jury or of a particular panel of jurors in the courtroom available for selection in the trial of a case, counsel may well be satisfied that it contains as many minority jurors as needed to satisfy equal protection or fair cross section standards, and possibly more than required. In Alston, it was found on the basis of the statistical evidence presented that the array should have been 5.96 percent black to correspond with the proportion of black residents of New Haven county, but was actually only 4.38 percent black, a shortfall of 1.58 percent. It is far from clear that the professional norm would demand in every case that counsel should expend the resources necessary to pursue a challenge to the array simply because there might then be 1.58 more blacks among every one hundred jurors available for jury selection. The actual, as opposed to estimated, minority composition of the grand juries or of the panels of jurors available for selection of the juries in the cases of the petitioners is not revealed by the record. It would be speculative to assume that they were so plainly underrepresentative of minorities that competent counsel would have viewed the situation as warranting a challenge to the array in order to ensure fairness to his minority client.

As precedent to support their claim that failure to raise and pursue a challenge to the array that might ultimately prove successful warrants a finding of ineffective assistance of counsel, the petitioners rely on Goodwin v. Balkcom, 684 F.2d 794, 820 (11th Cir. 1982), cert. denied, 460 U.S. 1098,103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983). In that case the court in finding ineffective assistance did rely partly on the failure of counsel to challenge the array as underrepresentative of black people and of women. Some time after the petitioner had been convicted, and sentenced to death, the jury selection system in the same Georgia county was successfully challenged on those grounds. The court, however, was primarily concerned with counsel’s general attitude as indicated by his testimony in explaining his failure to challenge the array, that he was concerned over community ostracism if he should make such a challenge and had already suffered embarrassment from inquiries received about his representation of the defendant. Id., 805-807. The court also relied upon the failure of counsel to move to suppress a confession that may have been the product of an illegal arrest. Id., 819. A failure to challenge a grand jury array alone, even when subsequent events relating to the same grand jury lists demonstrate that such a challenge would have been effective, has been rejected as a basis for finding ineffective assistance of counsel, despite the court’s evident awareness of Goodwin as a controlling precedent. Fleming v. Zant, 560 F. Sup. 525, 537-38 (M.D. Ga. 1983). Having concluded that the petitioners have not demonstrated ineffective assistance of counsel in accordance with the first requirement of the Strickland standard, we affirm the habeas court’s rejection of this claim without consideration of the second requirement, prejudice.

The judgments are affirmed.

In this opinion the other justices concurred.

       In Docket No. 13949, Keith Freeman v. Commissioner of Correction, the petitioner never went to trial but pleaded guilty to the grand jury indictment charging him with felony murder. He claims that he never would have pleaded guilty if he had known of the availability of a challenge to the grand jury. The habeas court rejected this claim after hearing the evidence. Our disposition of these cases makes it unnecessary to review this alternative ground for the judgment dismissing his petition. In Docket No. 13984, Antonio Feliciano v. Commissioner of Correction, the petitioner also pleaded guilty to the grand jury indictment. The habeas court concluded that his plea constituted a waiver of any defect in the composition of the grand jury. Again, because of our disposition of these cases on different grounds, we need not address this alternative basis for the habeas court’s decision.

       The fourteenth amendment to the United States constitution, § 1 provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       In Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), the court affirmed the judgment of the federal District Court based on the same ground in Alston v. Lopes, 621 F. Sup. 992 (D. Conn. 1985), which was announced on November 5,1985. Throughout this opinion the designation Alston refers to the decision of the Second Circuit unless otherwise indicated.

       “[Practice Book] Sec. 811. —time for making pretrial motions or REQUESTS
      “Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the court, at such later time as the judicial authority may fix. However, defenses and objections alleging lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings.”

       “[Practice Book] Sec. 810. —FAILURE TO RAISE defense, OBJECTION OR REQUEST
      “Failure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver, provided, however, that lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings.”

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       “[General Statutes (Rev. to 1975)] Sec. 51-220. number of jurors for each TOWN. The number of jurors to be chosen for each town shall be as follows: In towns whose population as determined by the last-completed census of the United States is less than seven hundred and fifty, fifteen; in towns whose population so determined is at least seven hundred and fifty but not more than one thousand five hundred thirty; in towns whose population so determined is more than one thousand five hundred but not more than twenty-five hundred, fifty-six; in towns whose population so determined is more than twenty-five hundred but not more than five thousand, ninety; in towns whose population so determined is more than five thousand but not more than ten thousand, one hundred twenty; in towns whose population so determined is more than ten thousand but not more than twenty-five thousand, two hundred twenty-five; in towns whose population so determined is more than twenty-five thousand but not more than fifty thousand, three hundred thirty-seven; in towns whose population so determined is more than fifty thousand but not more than one hundred thousand, six hundred seventy-five; and in towns whose population so determined is more than one hundred thousand, one thousand and twelve; provided, for the purposes of this section, the population of a town shall not include the patients of any state institution located in such town.”
      This statute was amended in 1982 by Public Acts 1982, No. 82-307, § 2 (February 1982 Session), to repeal the town quota system for choosing prospective jurors and to provide that the number of jurors “from each town shall be equal to one and one-half percent of the town’s population,” but these changes were made applicable only to jurors summoned for duty on or after September 1,1983. By a further amendment, adopted in June, 1983, but not effective until July 1,1985, the jury administrator was empowered to determine the appropriate percentage to be used in determining the number of jurors from each town for duty on and after September 1, 1986. Public Acts 1983, No. 83-5, § 4 (June 1983 Session). Before the 1983 amendment became effective, a further amendment, effective June 7,1984, reinstated the statutorily fixed one and one-half percent of each town’s population for determining the number of jurors from each town with respect to jurors summoned on or before August 31,1986, but authorized the jury administrator to establish the appropriate percentage to be used for those summoned on or after September 1,1986. Public Acts 1984, No. 84-393, § 4.

       Such challenges were filed by petitioners Kenneth Freeman (Docket No. 13949), Armando Valeriano (Docket No. 13976), Napier Talton (Docket No. 13960), and Reginald Jones (Docket No. 13982), but were either withdrawn or not pursued.

       The method used is referred to as the statistical decision theory or SDT.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       “Thus, despite the subsequent limitations on Fay, and because Sykes left open the question whether its ‘cause’ and ‘prejudice’ standard would apply in a Fay type case where the failure to take an appeal was involved, the ultimate responsibility that is upon the defendant himself to decide whether an appeal is to be taken persuades us to apply the ‘deliberate bypass’ standard of Fay to this case.” McClain v. Manson, 183 Conn. 418, 429 n.15, 439 A.2d 430 (1981).

       Prior to Wainwright, we had allowed a habeas petitioner to present constitutional claims never raised in the trial court as well as those not raised on appeal if he alleged and proved that he had not deliberately bypassed opportunities to present such claims in accordance with standard procedural rules. Walters v. Warden, 155 Conn. 316, 319, 232 A.2d 112 (1967); Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802 (1966).

       It is not clear whether in Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), the record referred to, which provided the evidentiary basis for the review conducted by the habeas court, was the transcript of the trial or of the habeas corpus proceeding.

       In Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), we reviewed in a habeas appeal a claim that evidence obtained from an unlawful search had been admitted at a probation revocation hearing, despite the absence of a motion to suppress or any objection to such evidence. We held, however, that the exclusionary rule was inapplicable to such a proceeding and upheld the judgment. The portion of the opinion concerning reviewability, therefore, was not essential to the outcome of the appeal and may be characterized as dictum.

       [Federal Rules of Criminal Procedure (U.S.C., 1970 Ed.)] Rule 12. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS ....
      “(b) The Motion Raising Defenses and Objections. . . .
      “(2) Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.”
      (This rule was amended April 22, 1974, effective December 1, 1975; July 31, 1975, Pub. L. No. 94-64, § 3 [11], [12], 89 Stat. 372.)

       It must be remembered that the attorneys who represented the petitioners in Alston did file a challenge to the array in 1975 in the trial court based in part on a claim that the town quota system for jury selection discriminated against black people.

       See footnote 6, supra.

       General Statutes (Rev. to 1975) § 51-217 required that “[a]ll jurors shall be electors” until October 1, 1982, when an amendment providing as an alternative, that jurors maybe “citizens of the United States who are residents of this state and listed in the records of the motor vehicle department as persons to whom motor vehicle operators’ licenses have been issued” became effective. Public Acts 1982, No. 82-11, § 1. This prior amendment did not become applicable to any of the arrays of jurors available at the time the petitioners were convicted.


author: Per Curiam.

text:
    Julian Chetcuti v. Commissioner of Correction
    (13983)
    Shea, Covello, Hull, Borden and Santaniello, Js.
    Argued December 7, 1990
    decision released April 23, 1991

      Charlotte G. Koskoff with whom was Stephen Frazzini, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, with whom, on the brief, was John J. Kelley, chief state’s attorney, for the appellee (respondent).
   Per Curiam.

In this habeas corpus action, the petitioner claims that his conviction should be set aside because the pool of veniremen available for selection of a petit jury at his trial in 1974 was not representative of a fair cross-section of the population of Fair-field county, in violation of his right under the sixth amendment to our federal constitution to a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” He also claims a violation of his sixth amendment right “to have the assistance of counsel for his defense” in that his attorney at trial failed to challenge the array from which his jury was selected. The basis for the petitioner’s claim that the jury pool was not representative of the Fairfield county population was that black people were not included in proportion to their number in the county. Because he is white, and thus is not a member of the underrepresented minority group, the petitioner has not claimed a violation of his federal fourteenth amendment right to “the equal protection of the laws.” Fay v. New York, 332 U.S. 261, 287, 67 S. Ct. 1613, 91 L. Ed. 2043, reh. denied, 332 U.S. 784, 68 S. Ct. 27, 92 L. Ed. 367 (1947). He was eligible, however, to assert a fair cross section claim upon the ground that discrimination against any significant minority group would render the jury array not fairly representative of the “district wherein the crime [was] committed.” Peters v. Kiff, 407 U.S. 493, 504, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

After concluding that the petitioner had not deliberately bypassed his opportunity to challenge the array in the trial court, the habeas court rejected both his claim of a fair cross section violation and his claim of ineffective assistance of counsel. It rendered judgment dismissing the petition. The petitioner’s appeal from that judgment was argued in this court as a companion case to the appeals of thirty-one other petitioners who had raised equal protection claims based upon underrepresentation of black or Hispanic people on jury arrays in Fairfield county resulting from the town quota system of jury pool composition established by General Statutes (Rev. to 1975) § 51-220, which was in effect while their cases were pending in the trial court. See Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991). Without addressing the merits of the equal protection claims, we affirmed the judgments dismissing those petitions. Id. For reasons similar to those expressed in Johnson, we affirm the dismissal of the petition in this case without considering the merits of the petitioner’s fair cross section claim.

In Johnson we held that the procedural default of the petitioners in failing to challenge the array of jurors before trial, as required by Practice Book §§ 810 and 811, barred habeas review of the merits of the petitioners’ equal protection claims. For the same reason, we conclude that the failure of this petitioner before trial to challenge the array available for selection of a petit jury for his trial precludes habeas review of his fair cross section claim.

In Johnson we also held that the failure of trial counsel for each petitioner to challenge the array of jurors available for selection on grand or petit juries did not constitute ineffective assistance of counsel under the standard for performance of defense counsel established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). For the reasons given in Johnson, as well as the further consideration that competent counsel would not ordinarily have any reason to believe that a jury array including more black people would be more favorably disposed toward a white defendant, we reject this petitioner’s claim that his counsel was ineffective for failure to challenge the array of jurors in his case. Accordingly, we agree with the habeas court that the petition should be dismissed.

The judgment is affirmed.

       The United States Supreme Court has recently extended to a white criminal defendant standing to attack the use of peremptory challenges of black jurors by the prosecution as racially discriminatory and violative of the right to equal protection of the laws. Powers v. Ohio, U.S. , 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); see Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Our disposition of the present case would not be affected if this defendant had asserted an equal protection challenge rather than a fair cross section challenge to the composition of the jury that found him guilty.


text:
    State of Connecticut v. Antonio Osman
    (14014)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued February 14
    decision released April 30, 1991

      DanaE. Shaw and Donna M. Gesualdi, certified legal intern, with whom were Timothy H. Everett and, on the brief, Michael R. Sheldon and ToddD. Femow, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Antonio Osman, was convicted by a jury, as charged in a two count information, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). He appealed to the Appellate Court the trial court’s refusal to set aside the jury’s verdict and to render a judgment of acquittal on both counts of the information. In his appeal he claimed that there was insufficient evidence presented at trial to identify him as a participant or conspirator in the robbery charged and that a pellet gun he had allegedly used in the robbery was not a dangerous instrument as defined by General Statutes § 53a-3 (7).

The Appellate Court agreed with the defendant that the pellet gun was not a dangerous instrument as charged in the first count of the information and as required for a conviction of robbery in the first degree under § 53a-134 (a) (3). State v. Osman, 21 Conn. App. 299, 307, 573 A.2d 743 (1990). A divided court determined, however, that the evidence was sufficient to prove beyond a reasonable doubt the identification of the defendant as a participant in the robbery. Id., 303-305. The Appellate Court consequently remanded the case to the trial court with direction to set aside the judgment of guilty of robbery in the first degree on the first count and to render a judgment of guilty of robbery in the third degree in violation of General Statutes § 53a-136 and to resentence the defendant accordingly. Id., 314. As to the second count of the information, a majority of the court found that a tire iron wielded by an alleged coparticipant and coconspirator in the robbery had been, as utilized, a dangerous instrument, and that its possession was adequately charged and instructed upon, and sufficed to support the jury’s verdict that the defendant was guilty of conspiracy to commit robbery in the first degree. Id., 309.

We granted certification limited to the following issues: “(1) Did the Appellate Court correctly conclude that the evidence adduced at trial to prove identification was sufficient to sustain, logically and beyond a reasonable doubt, the jury’s guilty verdict on first degree robbery and conspiracy to commit first degree robbery? (2) Did the Appellate Court correctly determine that evidence of a coparticipant’s use or threatened use of a tire iron was sufficient to sustain the defendant’s conviction of conspiracy to commit first degree robbery, in violation of [General Statutes] §§ 53a-48 and 53a-134 (a) (3), where that theory of liability was neither charged in the information nor instructed upon at trial?” State v. Osman, 216 Conn. 801, 577 A.2d 717 (1990).

The robbery that precipitated the charges against the defendant occurred at a Cumberland Farms convenience store in Manchester on May 11, 1986, at approximately 9:15 p.m. At that time, two young males, one armed with a pellet gun and the other with a tire iron, entered the store, threatened the husband and wife tending the store and escaped with money from the cash register. One of the men wore a Halloween mask and the other had a bandanna covering his face. Neither victim was able to identify either of the participants in the robbery. All the evidence linking the defendant to the crime, therefore, was circumstantial.

There is no distinction between circumstantial and direct evidence so far as probative force is concerned. State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989); State v. Uretek, Inc., 207 Conn. 706, 715, 543 A.2d 709 (1988); State v. Walker, 206 Conn. 300, 315-16, 537 A.2d 1021 (1988); State v. Magnano, 204 Conn. 259, 287, 528 A.2d 760 (1987); State v. Rodgers, 198 Conn. 53, 58, 502 A.2d 360 (1985); State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). Further, the evidence presented at trial must be construed in a fashion most favorable to sustaining the jury’s verdict. State v. Mandrell, 199 Conn. 146, 154, 506 A.2d 100 (1986); State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983); State v. Brice, 186 Conn. 449, 459, 442 A.2d 906 (1982); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978); State v. Brunori, 22 Conn. App. 431, 435, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). We also acknowledge that the trial court’s findings of fact are entitled to great weight and that a conviction based on the facts found by the trier will be affirmed if the trier of fact “could reasonably have inferred [from the evidence] that the defendant was guilty beyond a reasonable doubt.” State v. Cobbs, 203 Conn. 4, 7, 522 A.2d 1229 (1987); State v. Mandrell, supra, 153-54; State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983); State v. D'Antuono, supra, 421; State v. Perez, 182 Conn. 603, 607, 438 A.2d 1149 (1981).

The trial court’s findings of fact are not conclusive, however, and we will reverse a judgment where the state’s evidence is improbable and unconvincing and where all the facts found are insufficient to prove the guilt of the defendant beyond a reasonable doubt. State v. Cobbs, supra, 11, 13; State v. Mandrell, supra, 154; State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); State v. Mayell, 163 Conn. 419, 427-28, 311 A.2d 60 (1972); State v. Kelsey, 160 Conn. 551, 553-54, 274 A.2d 151 (1970). The case where that occurs is rare, and rightfully so, because of the great deference afforded the factual findings of the trier. This, however, is one of those rare cases.

Because the facts are set forth at great length and detailed and dissected in both the majority and dissenting opinions in State v. Osman, supra, 21 Conn. App. 299, it would be gilding the lily and serve no useful precedential purpose to repeat them here. Suffice it to say that our review of the record convinces us that the cumulative effect of the evidence elicited at the defendant’s trial was insufficient to establish beyond a reasonable doubt the defendant’s identity as one of the two young men who robbed the Cumberland Farms convenience store in Manchester on May 11,1986. To have arrived at its decision that the defendant was one of the robbers, the jury would have had to resort to speculation and conjecture and to have drawn unwarranted inferences from the facts presented. When that occurs, the jury’s verdict must be set aside. State v. Cobbs, supra, 13; State v. Mandrell, supra, 154; State v. Haddad, supra, 388; State v. Payne, supra, 184; State v. Mayell, supra, 428; State v. Brunori, supra, 440. Our resolution of the first certified issue makes it unnecessary that we consider the second issue certified.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the trial court with direction to render judgment that the defendant is not guilty of the charges contained in the two counts of the information on which he was tried or of any lesser included offenses thereof, and to order that the defendant be discharged.

       General Statutes § 53a-134 (a) (3) provides: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument.”
      “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-3 (7) provides: “definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title
      “(7) ‘Dangerous instrument’ means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a ‘vehicle’ as that term is defined in this section.”

       “[General Statutes] Sec. 53a-136. robbery in the third degree: class D felony, (a) A person is guilty of robbery in the third degree when he commits robbery.
      “(b) Robbery in the third degree is a class D felony.”

       The alleged copartieipant in the robbery was not tried with the defendant.

       As to the first count of the information, the Appellate Court actually concluded that the evidence supported only a conviction of robbery in the third degree in violation of General Statutes § 53a-136. The certification granted is therefore inaccurate to the extent that it indicates that the Appellate Court sustained the trial court’s judgment that the defendant was guilty of robbery in the first degree. The real question in the first issue certified, however, is whether there was sufficient evidence elicited at trial to prove the identification of the defendant as a participant in the robbery and conspiracy. The unfortunate scrivener’s error in the first issue certified is therefore immaterial to our decision.


author: Covello, J.

text:
    Robert C. Kaeser, Jr. v. Zoning Board of Appeals of the Town of Stratford et al.
    (14186)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued February 14
    decision released April 30, 1991

      Frederick J. Martin, for the appellant (plaintiff).

      KurtM. Ahlberg, for the appellee (named defendant).

      Arthur M. Field, for the appellees (defendant Stephen V. Corti et al.).
   Covello, J.

This is an administrative appeal from the granting of a zoning variance. The issues presented are: (1) Within the context of the Stratford zoning regulations (a) does the word “livestock” mean more than one animal or can it mean a single animal as well; (b) can a horse reasonably be considered a “household pet”; and (2) can the intention to stable a “pleasure horse” serve as the basis for the hardship required in order to grant a zoning variance. We conclude that within the context of these regulations, “livestock” as a collective noun can mean a single animal as well as more than one animal and that a horse is not a “household pet.” We further conclude that evidence of an intention to stable a “pleasure horse” is inadequate to support a finding of the hardship that must exist as the predicate to the granting of a variance. We therefore reverse the judgment and remand the matter to the trial court with direction to sustain the plaintiff’s appeal.

On August 22,1988, the defendant Stephen V. Corti applied to the named defendant, the Stratford zoning board of appeals (ZBA), for a variance from the operation of § 4.1.5 of the town’s zoning regulations as it pertains to his 1.51 acre residential parcel at 545 Peters Lane. Section 4.1.5 prohibits keeping livestock, other than household pets, on any lot less than three acres. The application for a variance stated that if approved, the property would thereafter be used for “stabling a pleasure horse.” The application claimed a hardship in that: “We feel IV2 acres is sufficient area to maintain a horse.” On November 1, 1988, after conducting the required public hearing, the ZBA granted the petition and voted to “waive the three acre requirement of Section 4.1.5 of the Zoning Regulations to 1.510 acres in order to stable a pleasure horse on property located in an RS-1 District.” The ZBA gave no reasons for granting the variance.

The plaintiff, Robert C. Kaeser, Jr., an owner of property within 100 feet of the subject parcel, appealed to the Superior Court claiming, inter alia, that “[t]he applicants have not alleged or demonstrated any hardship.” As the ZBA’s recording equipment had malfunctioned, the trial court permitted evidence as to what had transpired at the public hearing on Corti’s application.

The defendant, Mary Jean Corti, testified that at the public hearing she had told the ZBA members that: she owned a horse; she did not use it for commercial purposes; it was intended for the family’s enjoyment; it was presently stabled at another location; and the family’s goal was to erect a barn on the Peters Lane premises to serve as a stable for the animal. Corti testified that she further had told the board that she had examined the zoning regulations of other Fairfield county communities such as Fairfield, Westport, Easton and Milford and none of them had minimum acreage requirements governing the maintenance of horses. She also had pointed out to the board that the Peters Lane property virtually abutted the 265 acre Roosevelt Forest that contained “miles and miles of bridle trails.” Finally, Corti testified that she had pointed out to the board that a horse was a domestic animal within the meaning of her homeowner’s insurance and that she had supplied the board with dictionary definitions that distinguished a “horse” as an animal domesticated by man from “livestock” which is commonly used to describe animals intended for commercial or farming purposes.

The trial court, Gray, J., concluded that “for purposes of zoning regulations, the word ‘livestock’ is plural in nature and its connotation clearly cannot be restricted to a single animal.” This being the case, the trial court concluded: “There is no justiciable issue, given the definitions that govern Section 4.1.5, and the application for a variance must be considered, at best, meaningless, since defendants Corti were not legally required to do anything to keep their pet horse on their property.” The trial court rendered judgment dismissing the appeal. The Appellate Court granted the plaintiffs petition for certification to appeal. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The plaintiff first argues that the trial court improperly concluded that the three acre limitation referred only to situations involving more than one animal. We agree.

There is substantial grammatical authority to the effect that “livestock” always connotes more than one animal. On the other hand, there is also the grammatical proposition that “livestock,” like the words counsel, deer, grouse, reindeer, salmon, sheep, trout, shot, and cannon is a “collective” noun, i.e., singular in form but used with either singular or plural implications. See H. Fowler, Modern English Usage (2d Ed. 1965) pp. 94-95.

We resolve this grammatical ambiguity in favor of the word’s “collective” connotation and conclude that the Stratford zoning regulations refer to “livestock” in a generic sense, without a numerical implication. Such an interpretation comports with recognized principles of statutory construction. Pursuant to General Statutes § 1-1 (f), “words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.” See also 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.34.

Further, it seems scarcely likely that the exception for “household pets” contained within the same phrase could mean that two or more cats, dogs or canaries within a household would be an acceptable exclusion from the three acre limitation but a single cat, a single dog or a single canary within a household would not be similarly permitted. “ ‘[S]tatutes must be construed as a whole’ Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 506-507, 522 A.2d 264 (1987), quoting Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 505, 503 A.2d 1161 (1986); “with a view toward reconciling [their] separate parts in order to render a reasonable overall interpretation.” University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 399, 512 A.2d 152 (1986); see also Donohue v. Zoning Board of Appeals, 155 Conn. 550, 557, 235 A.2d 643 (1967). A municipal ordinance “is subject to the same canons of construction as are applied to state statutes.” Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19-20 n.7, 523 A.2d 467 (1987); Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981); see 1A J. Sutherland, supra, § 30.06.

The Cortis argue, however, that even if the trial court’s numerical rationale should fail, the three acre limitation is still inapplicable to this situation because the horse in question was a “household pet” and was therefore excluded from the operation of § 4.1.5. We disagree.

Confronted again with ambiguous language that has many possible meanings, we draw upon the proposition that legislation is to be interpreted so as to give meaning to every word. Specifically, the word “household,” here an adjective modifying the word “pets,” connotes to us an animal reasonably capable of dwelling within a household, presumably under the same roof and living as a member of a family. See Webster’s Third New International Dictionary. Because a horse, by reason of its size and other obvious considerations, is unlikely to dwell within a house, we conclude that the phrase “household pet” as set forth in § 4.1.5 means something other than such an animal. The three acre limitation therefore applies to the Cortis’ horse.

A determination that the trial court’s reason for denial of the appeal was incorrect does not, however, end the analysis. “ ‘This court is not required to reverse a ruling of the trial court which reached a correct result, albeit [from] a wrong [procedural posture]. Favorite v. Miller, [176 Conn. 310, 317, 407 A.2d 974 (1978)].’ ” Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 237, 578 A.2d 1075 (1990). “A judgment responsive to the issues and supported by the facts should stand, even if the court’s method of reaching its decision might be questionable.” Malone v. Steinberg, 138 Conn. 718, 723, 89 A.2d 213 (1952). We are required, therefore, to examine the merits of the variance granted to the Cortis by the ZBA.

Section 21.1 of the Stratford zoning regulations authorizes the ZBA to vary the application of the town’s zoning regulations “solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such regulations would result in exceptional difficulty or unusual hardship . . . .” This language is substantially similar to the comparable provisions of General Statutes § 8-6 (3).

“A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations. . . . The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements. . . . Thus, the power to grant a variance should be sparingly exercised.” Allen v. Zoning Board of Appeals, 155 Conn. 506, 510, 235 A.2d 654 (1967). “An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone.” Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430, 242 A.2d 713 (1968). “The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved.” Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980). “Where the claimed hardship arises from the applicant’s voluntary act, however, a zoning board lacks the power to grant a variance.” Id.

The hardship here alleged did not arise out of “circumstances or conditions beyond the control of the party involved.” The Peters Lane residence complied with the Stratford zoning regulations until the Cortis, through their voluntary act, sought to stable a horse upon the premises. It is evident from the application itself, i.e., “[w]e feel IV2 acres is sufficient area to maintain a horse,” and from Mary Jean Corti’s testimony to the effect that other Fairfield county communities did not have minimum acreage requirements governing the stabling of horses, that the Cortis were acting as earnest advocates for the townwide modification of the three acre limitation and were not pursuing relief from a hardship that was unique to their property. “[A variance] should not be used to accomplish what is in effect a substantial change in the uses permitted in a residence zone. That is a matter for the consideration of the zoning commission.” Heady v. Zoning Board of Appeals, 139 Conn. 463, 468, 94 A.2d 789 (1953). “The power to repeal, modify or amend a zoning ordinance rests in the municipal body which had the power to adopt the ordinance, and not in the zoning board of appeals.” Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 694, 155 A. 850 (1931). We conclude that there is simply not the factual predicate within this record to support the ZBA’s granting of a variance.

The judgment is reversed and the matter is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other justices concurred.

       Section 4.1 of the Stratford zoning regulations provides in part as follows: “Section 4. ONE-FAMILY RESIDENCE DISTRICTS, RS.
      “4.1. USES PERMITTED.
      “4.1.1. ONE-FAMILY DWELLINGS.
      * ** *

      “4.1.5. Farming, forestry, truck or nursery gardening, or commercial kennels, provided that no livestock or poultry except household pets shall be kept on any lot of less than three acres. No greenhouse over 500 square feet in area shall be located on any lot of less than three acres. No building in a residence district shall be used for the housing of livestock or poultry or as a commercial kennel unless specifically approved as a special case under section 20 and subject to such conditions and regulations as the commission may impose. ...” (Emphasis added.)

       General Statutes § 8-8 (b) provides in part: “[A]ny person aggrieved by any decision of a [zoning] board [of appeals] may take an appeal to the superior court for the judicial district in which the municipality is located.” (Emphasis added.)
      General Statutes § 8-8 (a) provides in part: “As used in this section:
      “(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes . . . any person owning land that ... is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

       General Statutes § 8-8 (k) provides in part: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board. ...”

       “[Livestock: animals of any kind kept ... for use or pleasure; esp: meat and dairy cattle and draft animals—opposed to dead stock.” (Emphasis added.) Webster’s Third New International Dictionary. “Livestock. 1. Domestic animals in general, horses, cattle, swine, etc.” (Emphasis added.) Craigie & Hulbert’s Dictionary of American English. “Livestock. 1. Domestic animals generally; animals of any kind kept or dealt in for use or profit.” (Emphasis added.) Oxford New English Dictionary; see also Zoning Commission v. Grandieri, 3 Conn. Cir. Ct. 71, 208 A.2d 357 (1964).

       Section 21 of the Stratford zoning regulations provides: “21.1 determination OP BOARD OP ZONING APPEALS.
      “The board of zoning appeals shall have the power to determine and vary the application of these regulations except section 15 and those uses classified as special cases or unnamed uses in the manner provided by state statute, in harmony with their purpose and intent and with due consideration for conserving the public health, safety, convenience and welfare, solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. Such variance may be for periods as determined by the board of zoning appeals.
      “Before making such determination or variance the board of zoning appeals must make a written finding in the minutes of each case giving in detail: (a) The special circumstances which create the hardship for the particular parcel of land and which do not apply to other parcels in the district; (b) that the hardship did not exist when the applicant became an interested party and was not created by any act of the applicant, and (c) that the variance allowed was the minimum necessary to relieve the hardship. A copy of each variance shall be filed in the land records of the town in the town clerk’s office.”

       General Statutes § 8-6 provides in part: “powers and duties of board of APPEALS. The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning . . . regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such . . . regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured . . . .”