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Norcott, J. The defendant appeals from the judgment of conviction of larceny in the second degree in violation of General Statutes § 53a-123. He claims that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Because the defendant fled the jurisdiction and has failed to submit himself to the jurisdiction of this court, we dismiss his appeal. The defendant was arrested and charged in connection with the theft of jewelry from an unattended and unlocked display case at a department store on February 15, 1986. On September 12, 1986, the defendant was brought to trial before a jury of six on the charge of larceny in the first degree in violation of General Statutes § 53a-119 and 53a-122 (a) (2). The defendant who was at liberty under bond was in attendance throughout the presentation of evidence but fled while the jury was deliberating. According to his counsel, the defendant has not been heard from since that time. On September 16, 1986, the jury found the defendant guilty of the lesser included offense of larceny in the second degree. The trial court subsequently sentenced the defendant in absentia to a term of ten years. Thereafter, the defendant's counsel filed a timely appeal to this court notwithstanding the defendant's continued absence from the jurisdiction. In State v. Leslie, 166 Conn. 393, 349 A.2d 843 (1974), our Supreme Court dismissed the appeal of a defendant who had escaped after his conviction and was still a fugitive when his appeal was heard. In so holding, that court, quoting the United States Supreme Court, noted: " 'No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.' Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 24 L. Ed. 2d 586 [1970]." State v. Leslie, supra, 395. The rationale expressed in Leslie is applicable to this case. We refuse to hold that a defendant who flees before he is convicted is entitled to greater appellate rights than one who awaits the outcome of trial. Defense counsel asserts that this court should hear the present appeal, notwithstanding the clear applicability of the holding in Leslie to the facts of this case, because it involves the claim of a violation of a fundamental constitutional right. Defense counsel claims that in Tyler v. Bronson, 12 Conn. App. 621, 625 n.3, 533 A.2d 570 (1987), this court created an exception to the general rule expressed in Leslie. In Tyler, we noted that we might review an egregious constitutional error on habeas corpus even if the defendant had waived his appellate rights because he had fled the jurisdiction. The notation in Tyler, however, is inapplicable to this case. Even though the defendant's claims involve a fundamental constitutional right, they are not the sort of egregious constitutional error described in Tyler Second, our indication that we might review a defendant's claim on habeas corpus if the defendant returns to the jurisdiction in no way indicates that we will review a defendant's claims of error, egregious or otherwise, where the defendant voluntarily continues to be absent from the jurisdiction. The appeal is dismissed. In this opinion the other judges concurred. In Tyler v. Bronson, 12 Conn. App. 621, 624-25, 533 A.2d 570 (1987), we held that a defendant who flees before being informed of his right to appeal is nonetheless deemed to have forfeited his rights to the appellate process if he does not file a timely appeal. An example of an egregious constitutional error would be if the court entered a directed verdict of guilty after the defendant's failure to appear. Tyler v. Bronson, 12 Conn. App. 621, 625 n.3, 533 A.2d 570 (1987). No such clear abuse of the defendant's right to a fair trial is alleged in this case.

Daly, J. In this appeal from a judgment of conviction, rendered after a jury trial, of larceny in the sixth degree in violation of General Statutes § 53a-125b, the defendant raises three claims of error: (1) that the trial court improperly interjected facts into evidence; (2) that the court erred in its instructions on circumstantial evidence; and (3) that the court erred in refusing to instruct on the statutory definition of intent. Because we find reversible error on the second issue and the other claims are not likely to recur at the new trial, we discuss only the second issue. The jury could reasonably have found the following facts. On January 10, 1986, the defendant was termi nated from his job as sorter at Edwards Food Warehouse, in West Hartford. The defendant returned to the store on January 17 and was observed pushing a shopping cart containing two television sets to the rear of the store. At 3:05 a.m., Joe Delenegro, an employee of Edwards, observed the defendant in the parking lot. The defendant was seen leaning into a white Cadillac owned by another employee; next to him was a shopping cart containing a cardboard box labeled "Samsung color TV." Upon reentering the store, the defendant pushed an empty cart. Ronald Mullen, the assistant night manager, had noticed the defendant in the store that night and, although he thought it unusual for the terminated employee to be there, he did not ask the defendant to leave. Mullen also noticed that there were only four Samsung TV sets on display instead of five. After checking with the cashiers, Mullen instituted a search for the missing TV set. The TV set cartons have security stickers which will trigger an alarm unless deactivated by a cashier. A search of the store failed to unearth the set, but it was discovered that a chain on a back room overhead door had been removed from its pulley and the door was open about 3 feet. The door was located in the area of the store most familiar to the defendant due to his prior position as a sorter. The defendant's second claim of error is that the trial court erred in its instruction on circumstantial evidence. Specifically, the defendant argues that the trial court's instruction that an inference could be drawn if it were "more probable than not, that the fact to be inferred is true," impermissibly diluted the state's burden of proof. Under the facts of this case, we find harmful error in these instructions. As a preliminary matter, we note that the defendant did not file a request to charge on circumstantial evidence, nor did he take exception to that particular portion of the charge. Ordinarily, we decline to review claims of error not properly preserved for appeal, but because this claim implicates the defendant's constitutional right to have the state prove him guilty beyond a reasonable doubt, we will review it. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Biggs, 13 Conn. App. 12, 20, 534 A.2d 1217 (1987). "Our courts have consistently held that 'a jury instruction in a criminal case which informs a panel that it may infer a fact when it is more probable than not that such a fact exists is erroneous "because, as applied to inferences for the finding of facts that are essential elements of the crime, it unconstitutionally dilutes the state's burden of proving guilt beyond a reasonable doubt." State v. McKenna, [11 Conn. App. 122, 135, 525 A.2d 1374 (1987)]. Such error, however, has been held to be reversible only if it is reasonably possible that the jury was misled by the trial court's instructions. Id.' State v. Trujillo, 12 Conn. App. 320, 330, 531 A.2d 142 (1987)." Biggs, supra, 20-21. Our inquiry, therefore, is "whether 'it is reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance.' State v. Torrence, 196 Conn. 430, 435-36, 493 A.2d 865 (1985)." State v. McDonough, 9 Conn. App. 631, 633, 521 A.2d 160, rev'd, 205 Conn. 352, 533 A.2d 851 (1987). Our Supreme Court has established a "bifurcated standard of review" which we use in resolving challenges to jury instructions regarding circumstantial evidence. State v. Gonzalez, 205 Conn. 673, 690-92, 535 A.2d 345 (1987). This bifurcated standard of analysis requires us first to classify the role of circumstantial evidence in the case at hand. If we find that this is a case that is largely proven by circumstantial evidence, (for example, involving a question of intent), " ' "we will closely scrutinize the court's instructions" on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state's burden of proof.' State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987)." State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987). If, however, we conclude that this is a case in which circumstantial evidence plays a subordinate role, we review the instructions not in isolation, but as a whole to determine whether it is " 'reasonably possible that the jury was misled' " by an erroneous explanation regarding the use of circumstantial evidence. State v. Robinson, supra." State v. McDonough, supra, 358. Further, upon completion of this examination, we review any error found to determine whether it was harmless. State v. Perez, 10 Conn. App. 279, 290, 523 A.2d 508, cert, denied, 203 Conn. 810, 525 A.2d 524 (1987). We find that in the case at bar the state's case consisted solely of circumstantial evidence. The issue in this case was whether a larceny by shoplifting had taken place. In order to prove that a larceny by shop lifting had occurred, the state had to prove (1) that the defendant intentionally took possession of a television set that was offered for sale at Edwards, and (2) that the defendant did not pay the purchase price of that television. General Statutes § 53a-119 (9). The state presented no direct evidence on either of these points. The defendant admitted being in the store. The state called one witness who saw the defendant in the store pushing a shopping cart with two TV sets in it. Another witness called by the state testified that he saw the defendant outside the store standing next to a shopping cart which contained a TV set box. There was no direct evidence that a TV set was purchased that evening, nor was there any direct evidence that the TV set carton that was observed outside next to the defendant contained a TV set or was from Edwards. Furthermore, no TV set was recovered. The state merely left all these circumstantial pieces of evidence for the jury to infer that the defendant committed larceny. This is not a case where circumstantial evidence was used to bolster the direct evidence; rather, it is a case in which circumstantial evidence was used to prove essential elements of the crime charged. Clearly, this is a case in which circumstantial evidence played a major and not a subordinate role. Under these circumstances, we undertake a close scrutiny of the instruction on circumstantial evidence, in isolation from the remainder of the charge, which reveals that there was reversible error in the instruction. Because "it was reasonably possible that the jury was misled with respect to the state's burden of proving intent beyond a reasonable doubt"; State v. Whelan, 200 Conn. 743, 758, 513 A.2d 86, cert, denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); the instruction was erroneous. The remaining question to answer is whether the erroneous instruction was harmless beyond a reasonable doubt. State v. Perez, supra, 290. "Such an analysis requires that we determine whether, based upon the whole record, it is clear beyond a reasonable doubt that the constitutional error did not contribute to the jury's verdict." State v. Trujillo, 12 Conn. App. 320, 333, 531 A.2d 142, cert. denied, 205 Conn. 817, 527 A.2d 588 (1987); see State v. Dullivan, 10 Conn. App. 474, 479, 523 A.2d 1353 (1987). We cannot say, on the basis of the record before us, that the erroneous instruction did not contribute to the jury's verdict. Specifically, the state failed to proffer overwhelming evidence on the fact that the defendant did not pay the purchase price of the TV set. The only evidence proffered was the testimony showing that Mullen searched the store after speaking with the cashiers. Although it can reasonably be inferred from these facts that the purchase price was not tendered, the evidence can, by no means be seen as overwhelming. See State v. Dullivan, supra, 479. There is error, the judgment is set aside and the case is remanded for a new trial. In this opinion the other judges concurred. General Statutes § 53a-125b provides: "larceny in the sixth degree: class C MISDEMEANOR, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less." The instructions set forth in relevant part: "Next, we'll deal with circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. That the fact, from which you are asked to draw the inference, has itself been proven beyond a reasonable doubt and that the inference asked to be drawn is not only logical and reasonable, but it is strong enough so that you can find that it is more probable than not, that the fact to be inferred is true." Although the state would much rather have us believe that the principal disputed issue was the credibility of the state's witnesses, it was clearly not the major or only issue at trial. Cf. State v. McDonough, 9 Conn. App. 631, 635, 521 A.2d 160, rev'd, 205 Conn. 352, 533 A.2d 857 (1987). In State v. Rodgers, 198 Conn. 53, 56-60, 502 A.2d 360 (1985), our Supreme Court found reversible error in a trial court's instruction that an inference may be drawn "if it is more probable that the fact to be inferred is true."

Stoughton, J. This is an appeal by the defendant from the judgment of the trial court dissolving the marriage between the parties. The defendant has also appealed from the granting of a motion to continue a restraining order for an indefinite period and from a decision denying his motion for modification and change of a custody order. The parties were married in Las Vegas, Nevada, on November 7,1982. The plaintiff commenced this action by writ, summons and complaint dated June 21,1985, and made returnable on July 30, 1985. At the time of the commencement of the action, the defendant was confined at the Adult Correctional Institution in Cranston, Rhode Island, and notice was given by service upon the defendant by registered mail. The defendant filed a pro se appearance and a series of motions, pleadings and counterclaims. On February 13, 1986, the court held a hearing at which it found (1) that the marriage of the parties has "irretrievably broken down," and (2) that Mark R. Cugini "is found to have no rights to or of the children of a previous marriage." The court also restored the plaintiffs previous married name. On February 28, 1986, the defendant filed a notice of appeal. He also filed a number of motions, including a motion for clarification of the judgment, motions for permission to proceed in forma pauperis, motions for appointment of counsel, motions for transcript, and a motion to enlarge the time for filing an appeal. The motions for permis sion to appeal in forma pauperis were granted and an appeal was filed on May 27, 1986. The defendant has taken this appeal pro se. He is still incarcerated in Rhode Island and did not appear for oral argument. The plaintiff also filed a pro se appearance in this court but did not file a brief. We decide this appeal upon the appellate record which the defendant has caused to be presented, the transcripts he has filed, and upon his brief. Although we will not entirely disregard our rules of procedure, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn. App. 330, 336, 537 A.2d 157 (1988). We have thoroughly and carefully reviewed the entire record and the defendant's brief with this end in view. The defendant has included no statement of issues in his brief, but he did present a "preliminary filing" which states the issues he wishes to raise. I Judgment of Dissolution (5231) In this appeal, the defendant argues (1) that the trial court lacked subject matter jurisdiction in the dissolution action, (2) that the trial court abused its discretion in dissolving the parties' marriage while a paternity claim was pending in Probate Court and in permitting an amendment to the dissolution complaint to allege his conviction of an infamous crime as an additional ground, and (3) that the defendant was deprived of his property without due process of law. The defendant's essential claim in his attack upon the judgment is that the plaintiff had not resided in Connecticut for one year next before the commencement of the action, that her allegation that she had done so was false and a fraud upon the court, and that the trial court thus lacked subject matter jurisdiction. He has included in the record a number of copies of documents such as a Rhode Island motor vehicle registration issued to the plaintiff in March, 1985, showing a Rhode Island address, Massachusetts school records for one of the plaintiffs children for a period prior to April of 1985, and Western Union money orders dated in May, 1984, payable to the plaintiff in California, and two dated in June, 1984, one of which was payable in Massachusetts and the other in New Hampshire. A complaint for dissolution of a marriage may be filed at any time after either party has established residence in this state, and a decree may be entered if one of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree. General Statutes § 46b-44. Jurisdiction to grant a dissolution is founded upon domicil; Taylor v. Taylor, 168 Conn. 619, 621, 362 A.2d 795 (1975); and the statute requires domicil plus substantially continuous physical residence. LaBow v. LaBow, 171 Conn. 433, 437, 370 A.2d 990 (1976). A person may have simultaneously two or more residence addresses, but only one domicil at any one time. Taylor v. Taylor, supra, 621. The burden of proving an allegation of lack of jurisdiction under these circumstances falls upon the party making the claim; Id., 620-21; and the trial court was not compelled to conclude that the plaintiff had not met the jurisdictional requirement. See Smith v. Smith, 174 Conn. 434, 440, 389 A.2d 756 (1978). The plaintiff alleged that one of the parties would have been a resident of this state for at least twelve months next preceding the date of the decree to be entered. The trial court was aware of the claims made by the defendant, as evidenced by the transcript show ing its questioning of the plaintiff on this subject. The plaintiff testified that she had lived in this state for more than a year before the date of the complaint, which was June 21, 1985, that she came to Connecticut more than a year before that with her three children, and that she was fleeing from the defendant. The trial court believed this testimony, as it was free to do, and we may not disturb its finding of fact. Credibility of witnesses is for the trier of fact. The documents presented by the defendant, even if assumed to be valid, do not establish that the defendant did not reside in Connecticut. One may have more than one residence, and it is the fact of residence coupled with the intent to remain in Connecticut which is the foundation for jurisdiction. The defendant next claims an abuse of discretion by the trial court in dissolving the marriage while a paternity claim was pending in the Probate Court. This involved one of the plaintiffs children concerning whom the defendant filed an acknowledgment of paternity. This child was born during the previous marriage of the plaintiff, and the trial court found that the defend- ' ant had no rights in this child or any child born of the plaintiffs previous marriage. Moreover, the defendant has furnished this court with a copy of a motion to dismiss his paternity claim dated March 21, 1986, citing "biological evidence" that the plaintiffs previous husband was the father of the child. The defendant also claims an abuse of discretion by the trial court in permitting an amendment to the complaint to allege as an additional ground for dissolution that he had been convicted of an infamous crime. This is one of the grounds upon which dissolution may be sought; General Statutes § 46b-40 (c) (9); and, in any event, it was not the ground upon which dissolution was granted in this case. The defendant claims, in addition, that he was deprived of his property without due process of law because the trial court was without jurisdiction to issue a writ of habeas corpus to bring him to Connecticut from the institution in Rhode Island for the trial and refused to appoint counsel to represent his interests. The defendant had filed a counterclaim seeking parental rights, visitation rights, attorneys fees, support, an order for the return of personal items, and payment of a loan made by his parents. He also sought the return of personal items by way of a motion. A motion to proceed by depositions was denied, and no depositions were submitted. The court made no financial orders whatsoever, so that the defendant remains free to pursue his claims for personal property. It was clearly within the court's discretion to refuse to make any financial orders. We find no due process violations. We are also unpersuaded by the claim that the trial judge evidenced prejudice against the defendant. II Continuance of Ex Parte Restraining Order (4825) The defendant has also appealed from the granting by the trial court of the plaintiff's motion for a continuance of a restraining order which she had obtained ex parte. The order and the continuance were prejudgment orders and have merged in the judgment and therefore have become moot. Furthermore, the only claim respecting this issue in the defendant's brief is that the plaintiff continued to visit him after the order had been issued and thus herself violated its terms. Claims of error not briefed are considered abandoned. Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.l, 425 A.2d 1289 (1979). III Denial of Motion for Modification and Change in Custody Order (4891) Finally, the defendant has appealed from the denial of his motion for modification and change in the custody order respecting the plaintiff's children. The plaintiff had been granted custody of the three children bom of her marriage to her previous husband when that marriage was dissolved in 1982. The defendant, obviously not a party to that action, sought to have the court modify that order. The trial court properly found that the defendant had no standing. This issue has not been briefed and is deemed abandoned. Czarnecki v. Plastics Liquidating Co., supra. There is no error. In this opinion the other judges concurred.

Dupont, C. J. The defendant appeals from the judgment rendered by the trial court in favor of the plaintiffs, upon the findings of an attorney trial referee. The referee found that the defendant was individually liable under an enforceable purchase and sale agreement, in the amount of $23,800 plus costs, for the defendant's refusal to purchase the plaintiffs' real estate. The defendant raises six claims of error on appeal. Five of the claims of error challenge the factual findings and conclusions of the referee. We are unable to reach the merits of these claims because none of the five claims of error was properly preserved at trial by the defendant for appellate review. The remaining claim of error challenges the enforcement of the contract of sale as against public policy. We find no error. I We first discuss the defendant's claims challenging the factual findings and legal conclusions of the attorney trial referee. It is axiomatic that in order for a party to receive appellate review of an attorney trial referee's findings, that party ordinarily must file with the court either a motion to correct the referee's report, pursuant to Practice Book § 438, or an objection to the acceptance of the referee's report, pursuant to Practice Book § 440. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987). On March 19, 1985, the attorney trial referee rendered his finding of facts and memorandum of law. The plaintiffs filed a timely motion to correct. On April 9, 1985, the defendant filed with the court an objection to the plaintiffs' motion to correct and a cross motion to correct. On March 10,1986, the defendant filed an objection to the plaintiffs' motion for judgment. Although the defendant filed a cross motion to correct, that motion cannot support the factual claims of error now raised on appeal because it did not address any of the factual findings challenged on appeal. Furthermore, the substance of the defendant's statement in objection to the plaintiffs' motion to correct does not support his factual claims of error which he now raises on appeal. In his objection, the defendant states that "the status of [the defendant] as individual or trustee is totally irrelevant." On appeal, the defendant argues that the finding of individual liability is erroneous. We note that this claim of error, if successful on appeal, would be dispositive of all of the other issues on appeal. If this court were to conclude that the finding of individual liability was clearly erroneous, judgment would have to be rendered in favor of the defendant on the plaintiffs' complaint, and there would be no need to address the remaining claims of error. The claim, however, that the status as individual or trustee is irrelevant is not sufficient under Practice Book § 438 to constitute a request to correct a finding. Pursuant to § 438, a movant must clearly set forth the correction desired, and make a statement of the grounds of the correction requested together with suitable references to the testimony. The defendant has done none of these with respect to the issue of individual liability. The claim that a particular factual finding is irrelevant is not synonymous with the claim that a particular factual finding is erroneous and therefore needs correction. The defendant did file with the trial court an objection to the plaintiffs' motion for judgment. This motion, however, cannot in substance be treated as an objec tion to the acceptance of the report of the referee. First, the objection to the motion for judgment addresses only one of the claims of error raised by the defendant on appeal. Second, there are substantial differences between an objection to a motion for judgment pursuant to Practice Book § 442 and an objection to acceptance of the referee's report pursuant to Practice Book § 440. Although our rules of practice do not specifically provide that a party may file an objection to an opponent's motion for judgment; Practice Book § 442; it seems that such an objection is proper where exceptions or objections to the report have been seasonably filed, yet not disposed of by the court. In such a case, the court may hold a hearing on the exceptions or objections and, "upon its decision as to them, forthwith direct judgment to be rendered." Practice Book § 442. On the other hand, the purpose of the exceptions or objections, themselves, is to demonstrate that the conclusions on ultimate facts are not supported by the subordinate facts. Practice Book § 440. It is apparent, then, that an objection to a motion for judgment and an objection to acceptance of a referee's report serve two entirely different purposes. Furthermore, the objection to the motion for judgment could not procedurally be characterized as an objection to acceptance of the referee's report because of its failure to comply with the time provisions set forth in Practice Book § 441. Section 441 provides: "Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report or finding has been made, within two weeks from the filing of the decision on the motion." The attorney trial referee rendered his findings of facts, conclusions of law and memorandum of law on March 19, 1985. The defendant's objection to the plaintiffs' motion for judgment was filed on March 10,1986, almost twelve months after the filing of the referee's report. Accordingly, the defendant's motion for judgment cannot be characterized, substantively or procedurally, as a § 440 motion. "With respect to the various claims of error relating to the merits of the factual findings made by the attorney referee, as well as the judgment rendered by the trial court based thereon, the defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 or an objection to the acceptance thereof pursuant to Practice Book § 440. . . . A litigant cannot wholly ignore established procedures for the protection of [his] rights, as this defendant has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice. We therefore decline to review further the judgment of the trial court." Seal Audio, Inc. v. Bozak, Inc., supra, 518. II The defendant's claim that this court should refuse to enforce any purchase and sale agreement drafted by a real estate broker as against public policy is without merit. The circumstances here do not present a case of overreaching by a more sophisticated party, requiring the conclusion that the element of bargaining was absent. There is no error. In this opinion the other judges concurred. Four of the claims challenge the following factual findings of the referee: (1) the finding that the parties entered into a contract when they signed the "Offer to Purchase and Acceptance"; (2) the finding that the claimed omissions of the plaintiffs were not such as to defeat their right to enforce the contract; (3) the finding that the defendant was individually liable on the contract; and (4) the finding as to the plaintiffs' damages. The claim of error challenging a legal conclusion of the referee provides that because the referee found that the plaintiffs had not sufficiently proved monetary damages, he erred in his conclusion that "[i]f the decision is to award monetary damages, it is recommended that . . . the matter be referred back for a hearing in specific damages." Practice Book § 438, entitled "Motion to Correct," provides: "If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. He shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. The file shall then be returned to the committee for consideration of the motion to correct. As soon as practicable the committee shall file with the court the motion to correct, together with his decision thereon." Practice Book § 440, entitled "Objections to Acceptance of Report," provides: "A party may file objections to the acceptance of a report on the ground that conclusions of facts stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. "If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading."

Borden, J. In these combined appeals, Aetna Life and Casualty Company (Aetna) appeals from the judgments of the trial court denying its application to vacate an uninsured motorist coverage compulsory arbitration award and granting Gregory Bulaong's application to confirm the same award. See General Statutes § 38a-336. The arbitration award arose out of a claim by Bulaong for coverage for injuries he sustained while a passenger on a stolen motorcycle. Aetna claims that the trial court improperly (1) construed the phrase in the policy, "using a vehicle," to exclude riding as a passenger, and (2) confirmed the award because to so construe that phrase contravened public policy. We agree with Aetna with respect to its first claim. With respect to its second claim, however, we conclude that this record lacks the necessary factual underpinning and, therefore, that this issue must be determined in a new arbitration proceeding. Accordingly, we reverse the judgments. Certain facts are not in dispute. On the morning of July 4, 1979, Gregory Bulaong was injured when a motorcycle on which he was riding as a passenger was involved in an accident. Sean Birmingham, the operator of the motorcycle, admitted having stolen it. Bulaong claimed, however, that he did not know that the motorcycle had been stolen. The Bulaongs thereafter filed a claim with Aetna under the uninsured motorist coverage portion of their family's personal automobile policy, and sought to stack coverage under two other policies they maintained with Aetna. Aetna denied coverage under exclusion A.4 of the uninsured motorists coverage part of the policy for "[ujsing a vehicle without a reasonable belief that the person is entitled to do so." Aetna maintained that as a passenger Bulaong was using the stolen motorcy cle without a reasonable belief that he was entitled to do so, within the meaning of the exclusion. The Bulaongs demanded arbitration under the policy, and on January 23, 1989, a hearing was held before three arbitrators. Only Bulaong and Birmingham testified, and at the conclusion of the hearing the parties agreed to brief three issues. On April 17, 1989, the arbitrators wrote to the parties requesting additional briefs on the following issue: "Is the term 'using' as used in this policy more or less restricting than the term 'occupying'?" On May 5,1989, the arbitrators rendered their decision. Two of the arbitrators found as follows: (1) the motorcycle operated by Birmingham was an uninsured motor vehicle under the terms of Aetna's policy with the Bulaongs; (2) there were two other policies that Aetna maintained with the Bulaongs that, when stacked with the policy at issue, provided a total of $120,000 in uninsured motorist coverage to Gregory Bulaong, who was an insured because he was living at home with his parents; and (3) "[t]he claimant [Gregory Bulaong] was not 'using' the motorcycle operated by Sean Birmingham at said date and time -within the definition of Exclusion A4 in said policies of insurance." The majority of the panel accordingly awarded Gregory Bulaong $120,000. The third arbitrator dissented as follows: "I hereby dissent from conclusion number 3 of this Finding and Award and would conclude, based upon the evidence offered at said hearing, that the claimant was 'using the vehicle without a reasonable belief that he was entitled to do so' within Exclusion A4." Thereafter, Aetna filed an application to vacate the award, and Bulaong filed an application to confirm the award. The trial court heard both applications together, upon submission of only the arbitrators' decision, and the parties' memoranda of law and arguments in support thereof. In its memorandum of law to the trial court, Aetna argued that: (1) the arbitrators' decision was subject to de novo review; (2) the arbitrators improperly construed the term "using" to exclude riding as a passenger; and (3) the award was against public policy because it awarded damages to one who had knowingly been engaged in illegal activity. Aetna's argument that the award was against public policy was based on its assertion that the arbitrators had determined as a factual matter that Bulaong knew the motorcycle had been stolen and, therefore, had been using the vehicle "without a reasonable belief that [he was] entitled to do so." The Bulaongs argued, on the contrary, that: (1) the issue of whether Gregory Bulaong was "using" the motorcycle was an issue of fact, not of law, and not subject to de novo review by the trial court; (2) the arbitrators properly found as a matter of fact that he was not using the vehicle; and (3) the award did not contravene public policy because the arbitrators did not find that he knew the vehicle had been stolen. The trial court determined that "[t]he arbitrators' decision has created a legal, not a factual, question." The court reasoned that when the arbitrators ruled that Bulaong was not using the vehicle "within the definition of Exclusion A4," they had not found that he was not on the vehicle but "only that his presence on it was not a use under the" policy. That determination, the court concluded, was a legal question subject to de novo review. Undertaking that review, the court further concluded that because the policy differentiated between "occupying" and "using," and because of the accepted rule of construction of insurance contracts that, where there are two reasonable interpretations the court should adopt that which covers the loss, the term "using" did not include riding as a passenger. The court also rejected Aetna's public policy argument, stating that "Aetna has failed to sustain its burden of proof." In this connection, the court stated as follows: "There is no evidence or even argument that Bulaong ever had 'a reasonable belief' that either he or Birmingham had a right to use the stolen vehicle. The arbitrators by focusing on the word 'using' make it clear that a reasonable belief in the right to use was not found." The court, therefore, denied Aetna's application to vacate and granted Bulaong's application to confirm the award. Aetna appealed from the judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We first consider precisely what the arbitrators and the trial court did and did not decide. Despite Aetna's assertions to the contrary, the arbitrators did not decide the factual question of whether, when Bulaong was a passenger on the motorcycle, he was "without a reasonable belief that [he was] entitled to do so." Although the dissenting arbitrator clearly made such a finding, there is no indication in this record that the two majority arbitrators did so. Their decision was limited to the conclusion that he was not "using" the vehicle within the meaning of the exclusion. They did not address the issue of whether he had a reasonable belief that he was entitled to do so. Aetna argues that "[t]he trial court explicitly found that Gregory Bulaong never had a 'reasonable belief that he was entitled to use the motorcycle on which he was riding." We disagree. First, the trial court could not properly have made a finding of such a disputed issue on the basis of the record submitted to it, consisting only of the arbitrators' decision, the parties' memoranda of law, in which Bulaong repeated his contention that the arbitrators had made no such finding, and oral argument by the attorneys. Second, the trial court's brief discussion of the issue in its memorandum of decision, while not perfectly clear, is certainly consistent, as the Bulaongs suggest, with a conclusion that the award was silent with respect to the issue of Bulaong's reasonable belief. It was, of course, incumbent upon Aetna as the appellant to seek to have the trial court clarify any ambiguity in its decision. McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988) (appellant's responsibility to furnish adequate appellate record); see Practice Book § 4061. Aetna also argues that the conclusion of the arbitrators that Bulaong was not using the vehicle necessarily implies that they found that he had no reasonable belief that he was entitled to do so, because without such a finding they would not have addressed the meaning of the term "using." This argument fails because it is at least equally plausible that, because the arbitrators concluded he was not "using" the vehicle, they determined that it was not necessary to address the issue of whether he had such a reasonable belief. Indeed, the lack of any reference in their decision to whether he had such a reasonable belief makes such a reading of their decision plausible. We are confronted, therefore, with decisions of both the arbitrators and the trial court limited to the determination that Bulaong, as a passenger on the motorcycle, was not "using" the vehicle within the meaning of the exclusion. Aetna argues, and we agree, that the determination by the arbitrators and the trial court that Bulaong was not "using" the motorcycle presents a legal issue subject to de novo review by this court. Questions of law decided by arbitrators in compulsory arbitration proceedings pursuant to General Statutes § 38a-336 are subject to de novo review by the court. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). Interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 583, 573 A.2d 699 (1990). Unlike certain other contracts, however, where absent statutory warranty or definitive contract language the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review; Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981) (purchase order); see also A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608-609, 577 A.2d 709 (1990) (arbitration clause); construction of a contract of insurance presents a question of law for the court which this court reviews de novo. Hammer v. Lumberman's Mutual Casualty Co., supra; Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634-37, 418 A.2d 944 (1979); see also Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702-703, 569 A.2d 1131 (1990); Libero v. Lumbermens Mutual Casualty Co., 143 Conn. 269, 274, 121 A.2d 622 (1956); DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 593-94, 501 A.2d 768 (1985). Although there may be cases where the interpretation of an insurance policy depends on factual questions; see, e.g., Libero v. Lumbermens Mutual Casualty Co., 141 Conn. 574, 108 A.2d 533 (1954); this is not such a case. Here, it was factually undisputed that Bulaong was riding as a passenger on the motorcycle, and the only question of interpretation of the policy was whether "using" was intended to include or exclude that factual scenario. That issue presents a question of law, both for the trial court reviewing de novo the arbitrators' decision, and for this court reviewing de novo the trial court's decision. We turn, therefore, to the question of whether the term "using" in exclusion A.4 of the policy was intended to include riding as a passenger on the motorcycle in question. Aetna argues that the term is one of ordinary and general meaning, and that it includes being a passenger. Bulaong argues that, because the policy specifically defines "occupying" to include being a passenger, "using" within the exclusion in question must have a more narrow meaning than mere occupancy as a passenger. In effect, Bulaong argues that "use" is synonymous with "operation." Bulaong alternatively argues that the term is at least ambiguous and therefore must be interpreted against its drafter to cover the loss. We agree with Aetna. The ultimate question of intent in this case involves a determination of what coverage the insured expected to receive and what coverage the insurer expected to provide as disclosed by the language of the policy. Hammer v. Lumberman's Mutual Casualty Co., supra, 583. If the words are plain and unambiguous, they must be given their ordinary and natural meaning, and we do not force, ignore or distort provisions so as to give them a different meaning from how they were evidently intended by the parties. Id. If the language is ambiguous, however, the ambiguity must be resolved against the insurer. We will not torture language to find an ambiguity that the ordinary meaning does not disclose, however, and simply because the parties contend for different meanings does not necessitate a conclusion that the language is ambiguous. Id., 584. We conclude that the term "using" in exclusion A. 4 of this policy is not ambiguous, and that given its ordinary and natural meaning it includes riding as a passenger. The policy in question employs three terms which, depending on the context, may have overlapping meanings. Those three terms are "using" or "use," "occupying," and "operator." Of the three, only "occupying" is specifically defined in the policy: " 'Occupying' means in; upon; getting in, on, out or off." (Emphasis in original.) The terms "using" and "use" are employed throughout the policy, both in clauses defining coverage and in clauses defining exclusions from coverage. By con trast, the term "occupying" does not appear in the liability coverage part of the policy, but is employed throughout the medical payments and uninsured motorist coverage parts of the policy, and in those parts it is employed in both clauses defining coverage and in clauses defining exclusions from coverage. The term "operator" is employed primarily in disjunction with the term "owner," and its use is limited to the uninsured motorists coverage part of the policy. Although the meaning of policy language should ordinarily be drawn from the context in which it is used; see Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 168, 128 A.2d 327 (1956); we can discern no contextual pattern in the employment of these terms that sheds particular light on whether "using" was intended to have a broader or narrower scope than "occupying." If anything, the more frequent and generalized employment of the terms "using" and "use" suggests that their meaning overlaps with and may exceed that of "occupying," depending on the factual situations to which the terms are applied. This construction comports, moreover, with the ordinary meaning of "using" as disclosed by dictionary sources, with our precedents regarding its meaning, and with the weight of authority in other jurisdictions. Webster's Third New International Dictionary discloses that one of the principal meanings of the verb "to use" is "to put into action or service: have recourse to or enjoyment of: employ." This meaning is consistent with "using" a vehicle as a passenger. Indeed, we commonly speak of "using" public transportation in precisely that sense; the same can easily be said of private transportation. Our precedents also buttress this conclusion. We have held that " 'the "use" of an automobile by an individual involves its employment for some purpose or object of the user while its "operation" by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another.' " Freeman v. Nationwide Mutual Ins. Co., 147 Conn. 713, 716, 166 A.2d 455 (1960), quoting Maryland Casualty Co. v. Marshbank, 226 F.2d 637, 639 (3d Cir. 1955); see also Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975) (accident " 'arise[s] out of . . . use' " of automobile for purposes of liability coverage if it " 'was connected with,' 'had its origins in,' 'grew out of,' 'flowed from' or 'was incident to' " use of automobile). "[T]he weight of authority from other jurisdictions supports the proposition that passengers are users of a motor vehicle." Sears v. Grange Ins. Assn., 111 Wash. 2d 636, 639, 762 P.2d 1141 (1988); see Maryland Casualty Co. v. Marshbank, supra, 639; BASF Wyandotte Corporation v. Transport Ins. Co., 523 F. Sup. 515, 517 (E.D. Mich. 1981); Home Indemnity Co. v. Lively, 353 F. Sup. 1191, 1193 (W.D. Okla. 1972); Orrill v. Garrett, 100 Ill. App. 2d 194, 197, 240 N.E.2d 271 (1968); United States Fidelity & Guaranty Co. v. Farm Bureau Mutual Ins. Co., 2 Kan. App. 2d 580, 582, 584 P.2d 1264 (1978); Baudin v. Traders & General Ins. Co., 201 So. 2d 379, 381 (La. 1967); DeJarnette v. Federal Kemper Ins. Co., 299 Md. 708, 721-22, 475 A.2d 454 (1984); Pappas v. Central National Ins. Group, 400 Mich. 475, 481-82, 255 N.W.2d 629 (1977); National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 648, 139 N.W.2d 821 (1966); Indemnity Ins. Co. of North America v. Metropolitan Casualty Ins. Co., 33 N.J. 507, 513-14, 166 A.2d 355 (1960); Hite v. Hartford Accident & Indemnity Co., 344 S.E.2d 173, 175 (S.C. App. 1986); State Farm Mutual Automobile Ins. Co. v. Francis, 669 S.W.2d 424, 427 (Tex. App. 1984); but see Potomac Ins. Co. v. Ohio Casualty Ins. Co., 188 F. Sup. 218, 218 (N.D. Cal. 1960); Dunlap v. Maryland Casualty Co., 242 Ark. 533, 535-37, 414 S.W.2d 397 (1967); Auto-Owners Ins. Co. v. Jones, 397 So. 2d 317, 319-20 (Fla. App. 1981). The commentators generally agree. " 'Use' is to be given its ordinary meaning. It denotes the employment of the automobile for some purpose of the user." G. Couch, Insurance (2d Ed.) § 45:321. "One may 'use' an automobile without personally operating it, as the term use is broader than operation." 6C J. & J. Appleman, Insurance Law and Practice (Buckley Ed. 1979) § 4354, p. 63. Aetna also argues that the arbitrators' award contravened public policy because Bulaong was a passenger on a motorcycle that he knew was stolen. Thus, Aetna argues, the award contravened a purported "public policy [that] precludes the award of damages to a willing participant in an unlawful activity." This argument is based, however, on Aetna's assertion that the "trial court explicitly found that Gregory Bulaong never had a 'reasonable belief' that he was entitled to use the motorcycle on which he was riding." That asser tion founders, however, on our earlier conclusion that neither the arbitrators nor the trial court had made such a finding. Thus, that entire issue, together with any other issue that the arbitrators did not decide, remains to be decided in what will necessarily be a second arbitration proceeding. The judgments are reversed and the case is remanded with direction to render judgments vacating the award. In this opinion the other justices concurred. There were two separate trial court proceedings. Aetna sought to vacate the arbitration award, naming as defendants in its application to vacate Gregory Bulaong and his parents, Irene D. Bulaong and Rudolph G. Bulaong. Gregory Bulaong sought to confirm the award, naming Aetna as the defendant. The trial court denied Aetna's application to vacate, and granted the application to confirm. References herein to "Bulaong" are to the injured claimant, Gregory Bulaong. Exclusion A.4 provided: "A. We do not provide Uninsured Motorists Coverage for bodily injury sustained by any person . 4. Using a vehicle without a reasonable belief that the person is entitled to do so." The three issues were whether: (1) the exclusion claimed by Aetna was prohibited under then General Statutes § 38-175c or the regulations thereunder; (2) Bulaong was required to establish the absence of other available insurance; and (3) the Bulaongs' policies could be stacked. In the definitional section of the policy the term "occupying" was defined as follows: " 'Occupying' means in; upon; getting in, on, out or off." Exclusions A.l and 3 of the Uninsured Motorists Coverage part of the policy excluded such coverage "for bodily injury sustained by any person: 1. While occupying, or when struck by, a motor vehicle owned by you or any family member which is not insured for this coverage under this policy. This includes a trailer of any type. . 3. While occupying your covered, auto when it is being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool." (Emphasis in original.) The term "occupying" was also used in other sections of the policy. By contrast, exclusion A.4 of the uninsured motorists coverage part of the policy, which was at issue before the arbitrators, excluded such coverage "for bodily injury sustained by any person . . . 4. Using a vehicle without a reasonable belief that the person is entitled to do so." (Emphasis added.) Although Bulaong argued in the trial court that the meaning of "using" in the exclusion was a factual question, he has not specifically reasserted that argument on appeal. He confines his discussion to the argument that the trial court properly construed the term "using." The principle that the intent of the parties to an insurance contract, as contrasted with certain other contracts, presents a question of law rather than fact is consistent with at least two other situations where questions of intention are regarded as questions of law. See, e.g., Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266, 585 A.2d 1189 (1991) (intent of testator as expressed in will presents question of law for court); Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982) (intent of language in deed presents question of law); Expressway Associates II v. Friendly Ice Cream Corporation, 22 Conn. App. 124, 127, 576 A.2d 575, cert. granted, 216 Conn. 811, 580 A.2d 56 (1990) (intent of language in deed is question of law). For example, under the "Liability" coverage part of the policy, a "Covered person" is defined to include "[a]ny person using your covered auto" (emphasis in original); but there is a specific exclusion for any person "[u]sing a vehicle without a reasonable belief that the person is entitled to do so." Similarly, under the "Medical Payments" coverage part of the policy, a covered person is defined to include certain persons while occupying "a motor vehicle designed for use mainly on public roads," but such coverage is excluded with respect to "a vehicle when it is being used in the business or occupation of a covered person. " (Emphasis in original.) Also, under the "Uninsured Motorists" coverage part of the policy, such coverage is limited to damages that "arise out of the ownership, maintenance or use of the uninsured motor vehicle" (emphasis in original), but such coverage is excluded with respect to a person "[u]sing a vehicle without a reasonable belief that the person is entitled to do so." For example, medical payments coverage is afforded to any person "while occupying your covered auto" (emphasis in original), but such coverage is excluded with respect to persons "occupying a vehicle without a reasonable belief that the person is entitled to do so." (Emphasis in original.) Similarly, uninsured motorists coverage is afforded to any person "occupying your covered auto, " (emphasis in original) but it is excluded for a person "occupying your covered auto when it is being used to carry persons or property for a fee." (Emphasis in original.) For example, such coverage is afforded for damages that a covered person is "entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury . . . ." (Emphasis in original.) As indicated earlier; see footnote 3, supra; in addition to the scope of the term "using," the parties briefed three other issues to the arbitrators, namely, whether: (1) the exclusion on which Aetna relied is prohibited by General Statutes § 38-175c or the regulations thereunder; (2) the Bulaongs were required to establish the absence of other available insurance; and (3) the three policies could be stacked. It is clear that the arbitrators' decision implicitly decided the latter two of these issues adversely to Aetna, and since Aetna did not raise those issues in this case it accepted those determinations. It is equally clear, however, that the arbitrators did not decide the validity of the exclusion because of their decision that the exclusion did not apply. Thus, that issue may still be raised by Bulaong. General Statutes § 52-418 (b) governs the circumstances under which the court, upon vacating an award pursuant to § 52-418 (a), may order a rehearing by the same arbitrators. Section 52-418 (b) provides: "If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators." (Emphasis added.) Presumably, that time has long since passed in this case. The court is confined, therefore, to vacating the award pursuant to § 52-418 (a), and the plaintiff is left with the option of initiating a second arbitration proceeding. Of course, the parties may agree, with the concurrence of the initial arbitrators, to conduct the second proceeding before the initial arbitrators.

The defendants Alamo Management Company and Duane Boise's and the plaintiff Alice Freeman's petitions for certification for appeal from the Appellate Court, 24 Conn. App. 124, are granted, limited to the following issues: "1. What is the standard of proof for double damages arising out of the violation of the unlawful entry and detainer statute? "2. Did the trial court apply the appropriate standard of proof? "3. If the trial court applied the wrong standard of proof, is a retrial limited to damages appropriate?"

Glass, J. This is an appeal by the plaintiff, Middle-sex Mutual Assurance Company (Middlesex) from the judgment of the Superior Court confirming a $275,000 uninsured motorist arbitration award in favor of the defendant, Donald F. Walsh, Sr. (Walsh), the admin istrator of the estate of his son, Donald F. Walsh, Jr. (Donald), and a cross appeal by Walsh from the court's ruling regarding his entitlement to interest on the award. On the appeal, Middlesex claims that the arbitration panel and the trial court improperly determined that: (1) Donald was covered as a "resident of the household" of Walsh within the meaning of the terms of the automobile liability insurance policy issued to Walsh by Middlesex Mutual Automobile, a division of Middlesex; (2) statements made by Walsh on his application for the policy did not constitute material misrepresentations; and (3) the doctrine of estoppel did not bar Walsh from asserting that Donald was a resident of his household as a basis for recovery under the policy. On the cross appeal, Walsh raises the sole claim that the court improperly determined that he was entitled to recover interest on the award only from the date of the judgment confirming the award and not from the earlier date of the award. We affirm the judgment on the appeal, and on the cross appeal, we vacate the judgment and remand the case for further proceedings regarding Walsh's entitlement to interest on the award. The facts are as follows. While walking across River Street in Bridgeport in the early morning hours of November 2, 1987, Donald was fatally injured by a motor vehicle operated by Steven Rivera,, also known as Steven Raslavsky. Rivera had recently stolen the vehicle, and neither he nor the vehicle was insured. Thereafter, Rivera was charged with the crime of murder, but pleaded nolo contendere to manslaughter in the first degree. As administrator of Donald's estate, Walsh filed a claim under his policy with Middlesex to recover uninsured motorist benefits for the death of Donald. Pur suant to General Statutes § 38-175c (a) (l), the claim was submitted to compulsory arbitration before a panel of three arbitrators. The panel, one arbitrator dissenting, found in favor of Walsh and awarded $275,000 to Donald's estate on April 3,1989. Middlesex then moved to vacate the award in the Superior Court pursuant to General Statutes § 52-418 (a) (4), and Walsh moved to confirm the award pursuant to General Statutes § 52-417. On November 27, 1989, the trial court confirmed the award, and in a subsequent articulation of its decision, ruled that Walsh was entitled to recover interest on the award from the date of the judgment confirming the award rather than from the date of the award as claimed by Walsh. Thereafter, Middlesex appealed to the Appellate Court from the judgment confirming the award and Walsh cross appealed from the court's ruling concerning interest on the award. We transferred the appeal and the cross appeal to this court pursuant to Practice Book § 4023. I Middlesex first claims that the arbitration panel and the trial court should not have found that Donald was covered under the policy as a "resident of the household" of Walsh. After reviewing the record of the arbitration proceedings provided by the parties, the court ruled that "substantial evidence" supported the arbitrators' determination that Donald was a resident of Walsh's household. Middlesex' challenge to the ruling focuses upon the inferences drawn by the court from the facts pertaining to Donald's residence. Specifically, Middlesex argues that the court "overlooked, misapplied, ignored and gave an improper effect" to certain statements made by Donald to the authorities at medical institutions and to the police indicating that he lived at places other than Walsh's household, or that he was homeless. Middlesex contends that these statements express Donald's belief that he was not a resident of Walsh's household, and thus "point to the sole conclusion that he did not reside at [Walsh's] home." The court's contrary conclusion, according to Middlesex, rested improperly upon "unsupported speculation that [Donald] was delusional on the numerous occasions when he gave his address (or lack of one) to third parties," the testimony of Donald's family that Middlesex characterizes as "conclusory in nature and based more on opinion than fact," and various objective factors that Middlesex claims do not conclusively establish that Donald was a resident of Walsh's household. Essentially, Middlesex urges us to fashion a new analysis for the determination of whether a person is a resident of a particular household that would lend controlling significance, to the exclusion of other objective factors, to the intent of the person as to where he or she resides. Our prior decisions on the issue of household residence do not support such a restricted analysis. In Griffith v. Security Ins. Co., 167 Conn. 450, 454, 356 A.2d 94 (1975), for example, a case involving uninsured motorist coverage of an alleged household resident under the terms of a policy virtually identical to those at issue here, we construed the unambiguous phrase "resident of the same household" in its common and ordinary sense as defined in Webster's Third New International Dictionary: " 'those who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling place.' " In accordance with the two primary elements that emerge from this definition, we considered in Griffith whether the facts were sufficient to establish that the father who claimed to be a resident of his son's household had a close, family-type relationship with the inhabitants of that household, and, in addition, that he actually lived in the household. Id., 455-57. While we found it relevant in the latter respect that the father had testified that he lived in a different place; id., 457; we did not suggest that his intent as implied from his statements was dispositive evidence that he was not a resident of his son's household. Rather, we focused primarily upon the objective factors relevant to the dual considerations noted above, including the frequency of the father's contact with the inhabitants of his son's household, that he stayed overnight and ate meals there, that he maintained a separate apartment and kept the bulk of his personal belongings, personal and business records and received mail at his apartment address, and that he used the address of his apartment for formal purposes such as voting, motor vehicle registration and paying income tax. Id., 455-57. We considered, moreover, the statements of other witnesses regarding their perception of where the father lived. Id., 457. The ultimate determination as to whether the father was a resident of his son's household therefore rested upon our evaluation of a conglomeration of factors. See also Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 169, 128 A.2d 327 (1956). Furthermore, aside from the possibility that Donald's statements regarding where he lived may have been delusional, we do not agree with Middlesex that his intent evidenced by his statements, or that evidenced by the statements of any other alleged household resident, should control the outcome of the residence determination. Such an approach would inappropriately transform the residence inquiry into a mere weighing of contradictory expressions of intent, thereby diminishing the significance of the objective factors that we have previously found indicative of household residence. See Griffith v. Security Ins. Co., supra, 455-57; Rathbun v. Aetna Casualty & Surety Co., supra. Certainly, had Donald's statements unanimously expressed his belief that he lived in Walsh's household, Middle-sex would not favor the narrow analysis it now urges us to undertake. In neither case would it be appropriate to attach controlling significance to such expressions of intent. We therefore adhere to the approach to the issue of household residence outlined in Griffith, that is, the statements expressing the intent of a claimed resident as to where he or she lives are merely one factor among many to be considered in determining household residence. Applying the foregoing principles to the facts of this case, we conclude that the court properly deter mined that the arbitrators were possessed of substantial evidence to support their determination that Donald was a resident of Walsh's household. See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991). The record reveals that Donald had suffered from chronic schizophrenia since the early 1970s. As a consequence, he was hospitalized for varying periods from the time that his illness first manifested itself until his death. Those of Donald's siblings who lived at Walsh's household testified that Donald, their oldest brother, was an integral part of Walsh's "close-knit" family notwithstanding his illness and frequent hospitalizations. His sister testified that after he became ill, "it was Pier] turn to take care of him." As noted by the court, moreover, Donald "spent a great number of his days and nights during the years prior to his death at his parents' home, listening to music, playing his guitar, writing poetry, sometimes taking long walks and visiting his brothers and sisters. There is no doubt that he visited and stayed overnight with friends and of course he was institutionalized many times, but he always came home eventually. The family members who testified were unanimous in saying that he was welcome at the home and that is where he lived, and that he did not live anywhere else." In addition to Donald's evidently close relationship with the inhabitants of Walsh's household, the court noted that a variety of objective factors indicated that he actually lived in the household. For example, "[h]e had his own bedroom at the house and no one else slept in that room. His clothes were kept in a chest of drawers in the house, and he had other personal possessions which always remained there." Compare Griffith v. Security Ins. Co., supra. According to his family members, Donald never moved his belongings out of Walsh's house even when visiting friends, staying in shelters and recuperative halfway houses or simply wandering. Compare Rathbun v. Aetna Casualty & Surety Co., supra, 169. He received mail at the Walsh address, including bills, medical group information, community center agendas, college alumni magazines and reports, letters and birthday and Christmas cards. Compare Griffith v. Security Ins. Co., supra. Donald's social security check, his only source of income, was mailed to the Walsh address in care of his mother, who deposited, cashed and disbursed the proceeds to him as necessary. In addition, he was registered to vote at Walsh's address. Compare id. Against the above evidence, the court weighed Donald's statements to the authorities at medical institutions and to the police indicating that he lived in places other than the Walsh household. There was additional evidence, however, that Donald had identified himself to a police officer as Robert Hood, also known as Robin Hood, with no address but the forest, had given the wrong birth date to medical authorities, and, although unemployed and without a vocation, had described himself to medical authorities as a "freelance writer." Members of his family testified that Donald was known to fabricate stories, and "really was in a fantasy land." In light of this evidence, the court reasonably attributed Donald's statements to his frequent "delusionary state." Furthermore, while Donald's mother testified that Donald had been most lucid when released from medical institutions after regimented treatment, and on several of such occasions he had given his address of discharge as one other than the Walsh address, the court may well have concluded that these statements merely expressed Donald's desire to be independent and to live on his own. Donald's mother testified that one of the long-term goals of Donald's treatment was his ultimate maintenance of an independent living situation, and that he had at times responded favorably to her suggestions that "maybe some time we can get you an apartment." Nonetheless, there was no evidence that Donald ever took permanent measures to achieve this goal; compare Rathbun v. Aetna Casualty & Surety Co., supra; or that he was capable, either financially or emotionally, of establishing and maintaining a household separate from that of his parents. See Row v. United Services Automobile Assn., 474 So. 2d 348, 352 (Fla. App. 1985). In view of all of the evidence adduced at the arbitration hearing, therefore, we cannot say that the trial court improperly concluded that despite Donald's periodic wanderings and statements to the contrary, substantial evidence supported the arbitrators' determination that he was a resident of Walsh's household. See Chmielewski v. Aetna Casualty & Surety Co., supra. II Middlesex next claims that Walsh's statements in response to two questions on his application for automobile insurance constituted material misrepresentations that voided the policy, thereby defeating Walsh's claim to recovery under the policy. The questions and Walsh's respective answers are as follows: (1) "List all children in the household (Names and dates of birth)," to which Walsh responded by placing a dash mark in the space designated for his answer; and (2) "Has any operator in the household had his/her license revoked or suspended during the past 5 years," to which Walsh responded by marking the "No" box designated for his answer. Before addressing whether the arbitration panel and the court properly determined that Walsh's answers did not constitute material misrepresentations, we must consider Middlesex's preliminary claim that material "misrepresentations in an insurance application invalidate the policy even when innocently made." Commentators note that "[tjhere is a conflict of authority as to the effect to be given a misrepresentation of material fact when innocently made, that is, where the insured made misstatements because of ignorance, mistake, or negligence, but in fact exercised good faith." 7 G. Couch, Cyclopedia of Insurance Law (2d Ed.) § 35:119. "In those jurisdictions in which emphasis is placed upon the moral character of the insured's conduct, it is generally held that the contract of insurance is not voidable because of innocent misrepresentations. In those in which prime attention is focused upon the fact that the insurer has been misled, it is generally held that the contract is voidable because of the misrepresentation, however innocent." Id., § 35:118. As support for its claim that Connecticut falls within the group of jurisdictions that follow the latter rule, Middlesex relies upon two cases involving alleged misrepresentations in life insurance applications. See Guariglia v. John Hancock Mutual Life Ins. Co., 139 Conn. 54, 57, 90 A.2d 162 (1952); Kelly v. John Hancock Mutual Life Ins. Co., 131 Conn. 106, 110, 38 A.2d 176 (1944); see also Jeffe v. Monarch Life Ins. Co., 123 F. Sup. 173, 175 (D. Conn. 1954). In our most recent decision in the life insurance context, however, we stated that "a misrepresentation material to the risk that is knowingly made by a proposed insured will defeat recovery under a life insurance policy." (Emphasis added.) Bristol v. Commercial Union Life Ins. Co. of America, 211 Conn. 622, 628, 560 A.2d 460 (1989). Our statement was based in part upon State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 72-73, 145 A. 565 (1929), wherein this court held that "[m]aterial representations . . . relied on by the [insurance] company, which were untrue, and known by the assured to be untrue when made, invalidate the policy without further proof of actual conscious design to defraud. . If it were necessary to prove an intent to deceive, such intent would be inferred from the making of the false representations with knowledge that they were false." (Emphasis added.) Our decision in Bristol therefore reaffirms the continuing viability of the principles announced in State Bank & Trust Co., and, notwithstanding the cases referred to by Middlesex, demonstrates that we have rejected the line of authority holding that innocent misrepresentations are sufficient to void a life insurance policy. Moreover, although we have not previously addressed the issue in the automobile insurance context, we find no persuasive reason, and Middlesex has offered none, why the principles governing misrepresentations on life insurance applications should not apply equally to misrepresentations on automobile insurance applications. We therefore hold that in order to constitute a misrepresentation sufficient to defeat recovery on an automobile insurance policy, a material representation on an application for such a policy must be known by the insured to be false when made. See Bristol v. Commercial Union Life Ins. Co. of America, supra; State Bank & Trust Co. v. Connecticut General Life Ins. Co., supra. Having established the framework for evaluating Middlesex's material misrepresentation claims, we now turn to the merits of those claims. A The first claimed material misrepresentation in Walsh's application is his dash mark response to the question: "List all children in the household (Names and dates of birth)." Middlesex argues that this response was a misrepresentation bécause it indicated that there were "no children" in Walsh's household, a representation contradictory to his position throughout the arbitration hearing that his son, Donald, was a resident of his household. According to Middlesex, this alleged misrepresentation was material to the risk of underwriting Walsh's policy since the number of children living in a household "is important in determining the risk based on potential driving exposures." Middlesex therefore maintains that if it had been aware that Donald lived in Walsh's household, it would have declined to afford coverage to Walsh. Because we are unpersuaded that Walsh's response was a misrepresentation, we need not consider whether the alleged misrepresentation was material. As we have stated above, Walsh's response does not amount to a misrepresentation unless it was known by him to be false when made. See Bristol v. Commercial Union Life Ins. Co. of America, supra; State Bank & Trust Co. v. Connecticut General Life Ins. Co., supra. A statement cannot be knowingly false, however, and thus cannot be a misrepresentation in this context, unless it is in fact false. Whether a response to a question in an insurance application is false must be determined in light of the question asked. 7 G. Couch, supra, § 35:145. If the question is "so framed as to leave room for two constructions, the words used in it should be interpreted most strongly against the insurer. Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 423, 172 A. 777 [1934]." O'Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29, 119 A.2d 329 (1955); see Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). "This rule—that the construction most favorable to the insured be adopted—'rests upon the ground that the company's attorneys, officers or agents prepared the [application], and it is its language that must be interpreted.' Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 402, 349 A.2d 838 [1974]. The rule itself derives from the established principle of contract construction that, where the terms of a contract are equally susceptible to two different meanings, that favoring the party who did not draw up the contract will be applied. 'The premise operating behind the rule would seem to be a psychological one. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests.' Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 146 n.8, 328 A.2d 711 [1973]. A further, related rationale for the rule is that '[s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter.' 4 Williston, [Contracts (3d Ed.)] § 621, p. 760." Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 84-85, 394 A.2d 710 (1978); see Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 584, 573 A.2d 699 (1990); Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980). In determining whether Walsh responded falsely to the question asked of him, therefore, we must construe the question as a lay person would understand it. Cody v. Remington Electric Shavers, supra; see Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223-24 n.5, 571 A.2d 107 (1990). "[I]f the inquiry is so framed that it does not clearly inform the insured of its meaning, and he may have been honestly mistaken as to what was intended, and his answer, by fair and reasonable construction, may be considered a true one in response to the question as he understood it, such interpretation will be given, and a forfeiture precluded." 7 G. Couch, supra, § 35:145. Thus, if Walsh could reasonably have understood the question as calling for a particular response, and the response given in accordance with that understanding is not false, the response does not amount to a misrepresentation. The dictionary definition of the word "child" is instructive as to the meaning that Walsh could reasonably have attached to the question asking that he list "all children in the household." Webster variously defines the word "child" as: "an unborn or recently born person . a young person esp. between infancy and youth . a person not yet of age . a son or daughter of human parents . . . ." Webster's, Ninth New Collegiate Dictionary. Because these definitions indicate that a "child" most commonly means a person under the age of majority, Walsh could reasonably have understood the question as inquiring whether any underage person lived in his household. It is undisputed that Donald was a thirty-eight year old adult at the time Walsh filled out the application. We therefore conclude that Walsh's response to the question as fairly and reasonably construed in his favor was not false. Accordingly, the court properly determined that his response did not amount to a misrepresentation. If Middlesex had intended the question to elicit a response disclosing the sons or daughters of any age living in Walsh's household so that it could ascertain the "potential driving exposures" that it deems material to an underwriting risk, it could have expressed that intent in a question drafted with greater precision. Having failed to do so, Middlesex cannot now avoid the policy on the basis of a statement generated by an ambiguity for which it was responsible. B The second claimed material misrepresentation is Walsh's "No" response to the following question: "Has any operator in the household had his/her license revoked or suspended during the past 5 years." Middlesex attacks this response on the ground that Donald's automobile operator's license had been suspended, effective on December 17,1983, for failure to appear in court to answer the charges of driving without a license and with faulty equipment. Since the suspension occurred within the five year period preceding the application date of January 26, 1987, Middlesex contends that Walsh's response was a misrepresentation. Middlesex argues for the materiality of this alleged misrepresentation by pointing to a minimum eligibility requirement of "no license suspensions or revocations in the household" that it had submitted to the Connecticut department of insurance. According to Middlesex, this requirement indicates that a license suspension in an insured's household impermissibly increases its exposure to risk, and therefore, it would not have issued the policy to Walsh if Donald's license suspension had been disclosed. Since we disagree with Middlesex that Walsh's response was a misrepresentation, we need not reach the question of materiality. As previously stated, a response to a question on an insurance application does not constitute a misrepresentation unless it is knowingly false. Bristol v. Commercial Union Life Ins. Co. of America, 211 Conn. 622, 628, 560 A.2d 460 (1989); State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 72-73,145 A. 565 (1929). The question asked of Walsh concerned the status of the licenses of "any operator in the household." Even if we were to assume that this question is unambiguous, there is no indication in the record that Walsh knew or had reason to know that Donald had had a license during the five year period preceding the application, much less that his license had been suspended during that period. Walsh testified at the arbitration hearing that the last time he remembered Donald having had a license was "probably his last year in college, which would have been '73-ish." This perception was shared by Donald's mother, who testified that Donald had had a license "in the early seventies," but did not recall that he had had a license during the period from 1977 to 1987. Donald had never owned a motor vehicle, and had been prohibited from driving the vehicles insured under Walsh's policy. Furthermore, neither Walsh nor Donald's mother recalled Donald ever having received any mail from the motor vehicle department, and Donald's mother testified that she had "looked at the mail every single day." There was no evidence, moreover, that Donald's parents regularly opened or read his personal mail, such that either of them would have discovered a notice of suspension of his license if one had been mailed to the Walsh address. "[SJince an insured makes a knowing misrepresentation only when he submits an answer to a question in the application other than that which he has reason to believe is true, Lazar v. Metropolitan Life Insurance Company, 290 F. Supp. 179, 181 (D. Conn. 1968), it follows that an insured should not be held responsible for an answer in the application if he was justifiably unaware of its falsity, had no actual or implied knowledge of its existence, and was not guilty of bad faith, fraud, or collusion." Lewis v. John Hancock Mutual Life Ins. Co., 443 F. Sup. 217, 218 (D. Conn. 1977). In the absence of any indication that Walsh knew or had reason to know that Donald's license had been suspended in 1983, we cannot say that the court improperly concluded that Walsh's representation that no operator in his household had suffered a license suspension or revocation during the five years preceding the application was known by him to be false when made. See Bristol v. Commercial Union Life Ins. Co. of America, supra; State Bank & Trust Co. v. Connecticut General Life Ins. Co., supra. Ill Middlesex' final claim is that Walsh should be estopped from asserting that his son Donald was a resident of his household as a basis for recovery under the policy because he had represented on his application that no children lived in his household. According to Middle-sex, it would not have issued the policy to Walsh if he had not made the representation, and thus it relied upon the representation to its detriment. We are unpersuaded. Under Connecticut law, " ' "any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . ." ' " (Citations omitted.) O'Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990). It is the burden of the party asserting a claim of estoppel to establish the existence of the elements essential to an estoppel; see Cleary v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966); and whether that burden has been satisfied in a particular case is an issue of fact. Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991); New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980). The trial court's factual determination will not be disturbed unless it is clearly erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see Hanover Ins. Co. v. Fireman's Fund Ins. Co., supra. The only evidence of detrimental reliance presented by Middlesex at the arbitration hearing was the testi mony of James McClintock, the underwriting manager for Middlesex Mutual Automobile. While McClintock testified that Middlesex used information regarding children in a household to evaluate the maturity and responsibility of a named insured and the "risk based on potential driving exposures, licensed or not licensed in the household," he also testified that Middlesex had "what we consider a subjective approach to underwriting and it's, again, a gut feeling, based on gut feeling." The subjective approach, in McClintock's view, was also "based on [written eligibility criteria] to make a rational, common sense judgment call on each case based on the information provided on the application." At no time did Middlesex demonstrate, through McClintock's testimony or otherwise, that any of its written eligibility criteria or its "subjective approach" to underwriting required the rejection of an application for the sole reason that a child lived in the applicant's household. Middlesex' claim for estoppel, as we have noted, rests upon the inconsistency between Walsh's representation on his application that no children lived in his household and his subsequent position at the arbitration hearing that Donald was a resident of his household. In view of the lack of evidence demonstrating that Middlesex detrimentally relied upon the fact that it seeks to estop Walsh from asserting, we conclude that it was not clearly erroneous for the court to determine that Middlesex failed to satisfy its burden of establishing the existence of the elements essential to an estoppel. IV In his cross appeal, Walsh claims that the court should have found that he was entitled to recover interest on the arbitration award from the date of the award. He asserts that in ruling that he was entitled to recover interest only from the later date of the judgment confirming the award, the court improperly adhered to the principles governing interest allowable on an arbitration award set forth in Gary Excavating Co. v. North Haven, 163 Conn. 428, 311 A.2d 90 (1972). As Walsh points out, Gary Excavating Co. was decided before the amendment of General Statutes § 37-3a by Public Acts 1979, No. 79-364, which specifically allowed recovery of interest on an arbitration award. He claims that the broad language of § 37-3a, unlike the statutory provisions involved in Gary Excavating Co., permits the recovery of interest on an arbitration award prior to the date of the judgment confirming the award. We agree with Walsh insofar as he claims that prejudgment interest on an arbitration award is permissible. Section 37-3a provides, with certain exceptions inapplicable here, that interest "may be recovered and allowed in . . . arbitration proceedings under chapter 909 . as damages for the detention of money after it becomes payable . . . ." The proceeding commenced by Middlesex to vacate the arbitration award under General Statutes § 52-418, a provision contained in chapter 909 of the General Statutes, is unquestionably one in which the legislature intended that prejudgment interest might be recovered. In accordance with the permissive language of § 37-3a; see White Oak Corporation v. Department of Transportation, 217 Conn. 281, 302, 585 A.2d 1199 (1991); we have stated that " '[t]he allowance of interest as an element of damages is primarily an equitable determination and a matter within the discretion of the trial court.' " Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988). While the determination depends in part upon when the money involved is "payable"; see General Statutes § 37-3a; see also White Oak Corporation v. Department of Transportation, supra; "[t]he real question in each case is whether the detention of the money is or is not wrongful under the circumstances." Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971); see Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 748, 557 A.2d 525 (1989); Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985). The determination " 'is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.' " Cecio Bros., Inc. v. Feldmann, supra; Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 (1906). Since the court considered itself bound by Gary Excavating Co. to award interest to Walsh only from the date of the judgment confirming the award, it did not make a discretionary determination as to when the amount recoverable by Walsh under the policy was "payable" or whether it was "wrongfully detained" by Middlesex. We therefore remand Walsh's claim for prejudgment interest to the trial court for a discretionary determination of these issues on the merits. See White Oak Corporation v. Department of Transportation, supra. In sum, we affirm the judgment of the trial court with respect to its determinations that: (1) Donald was a resident of Walsh's household; (2) Walsh made no material misrepresentations in his application for automobile liability insurance; and (3) Walsh was not barred from recovering under the policy by the doctrine of estop pel. We sustain Walsh's cross appeal seeking reversal of the court's ruling regarding interest, and we remand the case solely for a discretionary determination of the merits of Walsh's claim for prejudgment interest under § 37-3a. In this opinion the other justices concurred. General Statutes § 38-175c provides in pertinent part: "uninsured motorist coverage, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles . . . Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . ." General Statutes § 52-418 provides in pertinent part: "vacating award. (a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." General Statutes § 52-417 provides in pertinent part: "application for order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration have been notified thereof, any party to the arbitration may make application to the superior court . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419." Because the court found that "ample evidence" supported the arbitrators' determination, and, in addition, reached the same conclusion after reviewing the record de novo, the court implicitly found that substantial evidence supported that determination. The court stated: "Evidently, during these periods of absence from the home he was in effect a street person, or drifter, sometimes staying at a shelter, a half-way house, or occasionally with friends or at a YMCA." Since Walsh does not claim that Ms dash mark response means anytMng other than that no children lived in Ms household, we treat the response as having that meaning. "Connecticut courts have consistently referred to dictionary definitions to interpret words used in insurance contracts. See Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212, 571 A.2d 104 (1990); see also Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 514-15, 123 A.2d 755 (1956); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 308, 99 A.2d 141 (1953)." Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223-24 n.5, 571 A.2d 107 (1990). Furthermore, we note that construing the question as Walsh could reasonably have understood it eliminates any inconsistency between his response and his position at the arbitration hearing that Donald was a resident of his household. As the trial court pointed out, "the question did not ask [Walsh] to list all 'persons' residing in the household, for example, but only 'children.' " While we have not previously construed the word "operator" as used in a question on an automobile insurance application, courts in other jurisdictions have found questions asking an applicant to list "operators" or "drivers" in a household to be ambiguous, and susceptible to reasonable interpretation by a lay person as calling for disclosure of "all those whom it was reasonably contemplated would be drivers of the insured automobile." Gaskins v. General Ins. Co. of Florida, 397 So. 2d 729, 731 (Fla. App. 1981) (construing the word "drivers"); accord Patrons Mutual Ins. Co. v. Rideout, 411 A.2d 673, 676-78 (Me. 1980) (construing the word "operators"). In this case, the persons reasonably expected to drive the vehicles insured by Walsh's policy were he and his wife, neither of whom had suffered a license suspension in the five years prior to the date of the application. Donald had been expressly prohibited from driving any of the vehicles, and in 1983, Walsh had instigated Donald's arrest for driving one of the vehicles without permission. Since Donald was not reasonably expected to drive the vehicles, Walsh could reasonably have understood the question concerning "operators" as inapplicable to Donald. In this respect, we observe that there is no evidence in the record to establish that the charges that Donald had failed to appear in court to answer, which failure resulted in the suspension, were in any way connected to Ms arrest for driving the family car without permission as noted in footnote 9, supra. Consequently, the fact that Walsh presumably knew of Donald's arrest for driving the family car does not support an inference that he also knew of the suspension. In fact, in response to a hypothetical question including all pertinent information relating to Donald, McClintock testified that Walsh's application would have been rejected because "[w]e feel that any individual who has their license revoked or suspended within the last five years under almost any circumstances is enough for declination because . . . [w]e put a lot of credence on maturity and responsibility of every individual in the household."

Hull, J. The defendants Connecticut Resources Recovery Authority, Southeastern Connecticut Regional Resources Recovery Authority and American Ref-Fuel Company (the defendants) filed applications with the defendant Connecticut department of environmental protection (DEP) for three permits necessary to construct a proposed resources recovery facility (the facility) in the plaintiff town of Preston. See General Statutes § 22a-208a (solid waste construction permit); § 22a-174 (c) (air emissions permit); § 22a-430 (a) (water discharge permit). Pursuant to General Statutes § 22a-19 (a), the plaintiffs, the town of Preston, Citizens for Alternatives to the Incineration of Refuse, the Mohegan Indian Tribe and Nation, John E. Hamilton and Eleanor C. Fortin, intervened as parties in the administrative proceeding. Following public hearings, the commissioner of environmental protection (the commissioner) granted the defendants' applications for a solid waste construction permit and an air emissions permit. The plaintiffs appealed to the Superior Court, which dismissed the appeal on its merits. The plaintiffs thereafter appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm. The plaintiffs claim that the trial court should have concluded that the commissioner improperly granted the defendants' applications for a solid waste construction permit and an air emissions permit. I The plaintiffs first claim that the trial court should have concluded that the defendants' application for a solid waste construction permit was improperly granted by the commissioner. According to the plaintiffs, because the application was incomplete, the commissioner was prohibited from granting it. The plaintiffs also argue that because the defendants failed to demonstrate that a parent company of the defendant Ref-Fuel, Browning-Ferris Industries, Inc. (BFI), had not repeatedly violated pertinent statutes, the application should have been denied. A We first address the plaintiffs' assertion that the defendants' application for a solid waste construction permit was incomplete and that, therefore, the commissioner was precluded from granting it. According to the plaintiffs, § 22a-209-4 (b) of the Regulations of Connecticut State Agencies, requires that specific information be included in every application for a solid waste construction permit and that, therefore, the absence of certain of this information from the defend ants' application rendered the application incomplete and precluded issuance of a solid waste permit. We do not agree. Section 22a-209-4 (b) provides in pertinent part: "The information required to be in an application for a permit to construct shall depend upon the type of solid waste facility proposed. . . . An application will not be deemed complete until all information required by statutes or regulations or otherwise requested by the Commissioner have [sic] been submitted in proper form. (1) Application for each solid waste facility permit to construct . . . shall include but not be limited to the following as the Commissioner deems necessary . . . (Emphasis added.) This language is followed by a comprehensive list of items that relate to all solid waste facilities. Section 22a-209-4 (b) thereafter provides: "(2) A facility plan, including engineering studies and proposals, shall accompany the application . . . and shall include but not be limited to the following information and supporting materials as the Commissioner deems necessary . . . (Emphasis added.) This language is followed by two specific lists of items. The first applies to "solid and special waste disposal areas," while the second applies to "transfer stations, resources recovery facilities or other volume reduction plants, and biomedical waste treatment facilities." Regs., Conn. State Agencies § 22a-209-4 (b) (2) (A) and (B). The plaintiffs argue that use of the phrase "shall include" in the prefatory language of § 22a-209-4 (b) (1) and (2) requires that every application for a solid waste construction permit include each item set forth in § 22a-209-4 (b) (1) and, if applicable, each item set forth in § 22a-209-4 (b) (2) (A) or (B). It is quite plausible, however, that the phrase "as the Commissioner deems necessary" modifies "shall include" and that, therefore, an application for a solid waste construction permit "shall include" the information set forth only if the commissioner deems it necessary. Nevertheless, the plaintiffs maintain that the phrase "as the Commissioner deems necessary" modifies only the phrase "but not be limited to the following" and that, therefore, any discretion that the phrase imparts to the commissioner is restricted to determining whether an application will be limited to the information set forth in the regulation. Because § 22a-209-4 (b) is subject to two plausible interpretations, it requires our construction. As is true in every case involving the construction of a statute, our starting point must be the language employed. King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987); Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982). "The test for determining whether the use of the word 'shall' is mandatory or directory is 'whether the prescribed mode of action is of the essence of the thing to be accomplished.' Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). That test must be applied with reference to the purpose of the statute. See id." LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). General Statutes § 22a-208a (a), part of the legislative scheme that § 22a-209-4 was designed to implement; see General Statutes § 22a-209; provides: "The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter." (Emphasis added.) The legislature intended, therefore, that the decision of what information must be included in a solid waste construction permit application is, ultimately, a matter within the commissioner's discretion. Furthermore, by rendering a decision on the defendants' application, despite the fact that the application did not include every item of information set forth in the regulation, the commissioner implicitly interpreted § 22a-209-4 (b) as requiring the application for a solid waste construction permit to include only the information that he deemed necessary. We accord great deference to the construction of a provision given by the administrative agency charged with the provision's enforcement. Trumbull v. State, 206 Conn. 65, 77, 537 A.2d 431 (1988); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128-29, 527 A.2d 672 (1987). "This principle applies with even greater force to an agency's interpretation of its own duly adopted regulations." Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Considering the comprehensiveness of the lists set forth in § 22a-209-4 (b), construction of the section as the plaintiffs suggest would elevate form over substance by requiring the inclusion of information in an application in cases where the commissioner, in his discretion, deems such information either unnecessary or superfluous. " '[Wjhere a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to "bizarre results" destructive of that purpose, the former should prevail.' State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988)." State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988). We conclude that, because the purpose of § 22a-209-4 (b) is to ensure that the commissioner has an adequate basis upon which to render a decision on a solid waste construction permit application and because both the legislature and the commissioner have determined that the commissioner is in the best position to decide what information is necessary under the circumstances of each case, the more reasonable inter pretation of § 22a-209-4 (b) is that an application thereunder must include only those items set forth that the commissioner deems necessary. B The plaintiffs next assert that because the defendants failed to demonstrate that BFI, a parent company of Ref-Fuel, had not repeatedly violated pertinent statutes, their application for a solid waste construction permit should have been denied. We disagree. Section 22a-209-4 (d) (1) (D) of the Regulations of Connecticut State Agencies provides in pertinent part: "(1) The Commissioner shall issue a permit to construct or to operate upon receipt of satisfactory evidence from the applicant that . . . (D) the owner or operator of the facility or, if the owner or operator is a business entity, a parent or subsidiary corporation . . . has not repeatedly violated pertinent statutes, regulations, orders or permit terms or conditions at any solid waste facility." In support of their position, the plaintiffs assert that, pursuant to § 22a-209-4 (d) (1) (D), evidence of the following precluded the commissioner from issuing a solid waste construction permit to the defendants: BFI had been ordered to cease operations and alter its methods of operation at various waste disposal sites. BFI had been the subject of investigation in connection with enforcement actions involving hazardous waste disposal. Administrative proceedings involving the discharge of materials into the environment were pending against BFI. BFI was a named defendant in a pending civil action that alleged price fixing for waste services. After considering this evidence, the commissioner determined that BFI's compliance history did not warrant denial of the defendants' application for a solid waste construction permit. In reviewing a decision of an administrative agency, we will reverse the decision upon a showing that the agency acted illegally, arbitrarily or in abuse of its discretion or that the decision is unsupported by the evidence. Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 762, 591 A.2d 395 (1991); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 605, 590 A.2d 447 (1991). The determination of whether an applicant has "repeatedly violated pertinent statutes, regulations, orders or permit terms or conditions at any solid waste facility" is a question of fact. We conclude that nothing in the record indicates an abuse of discretion by the commissioner in refusing to find that BFI's violations had been repeated. We further conclude that the commissioner reasonably determined that evidence of investigations, alleged violations of pertinent statutes and pending proceedings involving BFI, did not require denial of the defendants' application for a solid waste construction permit. II The plaintiffs next claim that the trial court should have concluded that the defendants' application for an air emissions permit was improperly granted. According to the plaintiffs, because the defendants failed to analyze the particulate matter measuring less than ten microns in diameter that will be emitted by the facility and because they failed properly to analyze the impact that the facility will have on the prevention of significant deterioration of the ambient air quality, then-application should have been denied. A The plaintiffs first assert that the defendants' failure to analyze the particulate matter measuring less than ten microns in diameter (PMi0) that will be emitted by the facility required denial of their application for an air emissions permit. We disagree. Title 40 C.F.R. § 52.21 (i) (1990) provides in pertinent part: "(1) No stationary source . to which the requirements of paragraphs (j) through (r) of this section apply shall begin actual construction without a permit which states that the stationary source . . . would meet those requirements." Title 40 C.F.R. § 52.21 (j) (2) (1990) provides: "A new major stationary source shall apply best available control technology for each pollutant subject to regulation under the Act that it would have the potential to emit in significant amounts." The plaintiffs argue that, pursuant to § 52.21 (i), the defendants' application was required to include an analysis showing that the facility would apply the best available control technology with respect to limiting PM10 emissions and, therefore, meet the requirement of § 52.21 (j) (2). We are unpersuaded. Title 40 C.F.R. § 52.21 (i) (4) (1990) provides in pertinent part: "The requirements of paragraphs (j) through (r) of this section shall not apply to a particular major stationary source . if . . . (x) The source . . . was subject to 40 CFR 52.21, with respect to particulate matter, as in effect before July 31,1987 and the owner or operator submitted an application for a permit under this section before that date, and the Administrator [of the environmental protection agency] subsequently determines that the application as submitted was complete with respect to the particulate matter requirements then in effect in this section. Instead, the requirements of paragraphs (j) through (r) of this section that were in effect before July 31,1987 shall apply to such source or modification." It is undisputed that the facility was subject to 40 C.F.R. § 52.21, with respect to particulate matter, as in effect before July 31, 1987. See 40 C.F.R. § 52.21 (1986). The plaintiffs assert, however, that the defendants failed to submit a complete application for an air emissions permit under § 52.21 prior to July 31,1987. The plaintiffs first argue that because the defendants submitted their application for a permit to the commissioner, rather than to the administrator of the environmental protection agency (the administrator), they failed to submit an application under § 52.21. Because the administrator has delegated authority to enforce the standards of performance for new stationary sources to the commissioner; see Regs., Conn. State Agencies § 22a-174-3 (a) (2) (commissioner has been delegated authority to enforce 40 C.F.R. Part 60 by the administrator); 40 C.F.R. Part 60 (1990) (standards of performance for new stationary sources); this argument is without merit. The plaintiffs next assert that the defendants' application was not complete until September 16,1987, and that, therefore, the exemption set forth in § 52.21 (i) (4) (x) does not apply. The commissioner determined that a complete application for an air emissions permit was submitted by the defendants before July 31, 1987. The plaintiffs' second assertion, therefore, is equally without merit. Because the defendants submitted a complete application for an air emissions permit prior to July 31,1987, the requirements of 40 C.F.R. § 52.21 (i) and (j) (1990) do not apply to their application for an air emissions permit. Instead, the requirements of 40 C.F.R. § 52.21 (1986), which were the regulations in effect prior to July 31, 1987, govern the defendants' application. 40 C.F.R. § 52.21 (i) (4) (x) (1990). PM10 is not a pollutant subject to regulation under the 1986 regulations. See 40 C.F.R. § 52.21 (b) (23) (i) (1986). We conclude, therefore, that the defendants were not required to conduct an analysis of PM10 emissions in order to obtain an air emissions permit. B The plaintiffs next assert that because the defendants failed to analyze properly the effect that the facility will have on the prevention of significant deterioration of the ambient air quality (PSD), their application for an air emissions permit should have been denied. We disagree. Title 40 C.F.R. § 52.21 (m) (1) (1990) provides in pertinent part: "(i) Any application for a permit under this section shall contain an analysis of ambient air quality in the area that the major stationary source . . . would affect for each of the following pollutants: (a) For the source, each pollutant that it would have the potential to omit in a significant amount . . . .''The plaintiffs do not dispute that the defendants submitted an analysis of PSD with their application. They assert, however, that, because the defendants' analysis did not contain all essential data and because some of the data that it included was outdated, inaccurate or unverified, the analysis was inadequate. Nevertheless, the plaintiffs have not challenged the commissioner's conclusion that "[t]he [fjacility will meet all applicable state and federal regulations governing the issuance of permits for a new source of air emissions." We conclude that, despite the alleged inadequacy of the defendants' PSD analysis, because the plaintiffs do not challenge the commissioner's conclusion that the facility will comply with applicable federal and state regulations governing new stationary sources of air emissions, including regulations designed to ensure PSD, the commissioner properly granted the defendants' application for an air emissions permit. The judgment is affirmed. In this opinion the other justices concurred. The Connecticut Resources Recovery Authority (CRRA) is a body established to implement the Solid Waste Management Services Act. General Statutes § 22a-257 et seq.; see General Statutes § 22a-261, 22a-262. The CRRA has delegated responsibility for solid waste management in southeastern Connecticut to the Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA). See General Statutes § 22a-260 (18), 22a-275. We refer to the Connecticut Resources Recovery Authority, the Southeastern Connecticut Regional Resources Recovery Authority and American Ref-Fuel Company collectively as the defendants. Where necessary to distinguish among these defendants, we refer to them as CRRA, SCRRRA and Ref-Fuel, respectively. " 'Resources recovery facility' means a facility utilizing processes to reclaim energy from solid wastes." General Statutes § 22a-219a. General Statutes § 22a-208a provides in pertinent part: "(a) The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter. . . . "(b) No solid waste facility shall be built or established and no solid waste facility -without a permit to construct shall be altered after July 1, 1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this chapter or chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed. . . ." General Statutes § 22a-174 (c) provides in pertinent part: "The commissioner shall have the power, in accordance with regulations adopted by him, (1) to require that a person, before undertaking the construction, installation, enlargement or establishment of a new air contaminant source specified in the regulations adopted under subsection (a), submit to him plans, specifications and such information as he deems reasonably necessary relating to the construction, installation, enlargement, or establishment of such new air contaminant source; (2) to issue a permit approving such plans and specifications and permitting the construction, installation, enlargement or establishment of the new air contaminant source in accordance with such plans, or to issue an order requiring that such plans and specifications be modified as a condition to his approving them and issuing a permit allowing such construction, installation, enlargement or establishment in accordance therewith, or to issue an order rejecting such plans and specifications and prohibiting construction, installation, enlargement or establishment of a new air contaminant source in accordance with the plans and specifications submitted . . . ." General Statutes § 22a-430 (a) provides in pertinent part: "No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner. ." General Statutes § 22a-19 (a) provides: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." With respect to the application for a water discharge permit, the commissioner ordered the defendants to submit their construction plans and specifications to the water compliance unit of the DEP for review. The commissioner stated that, following review and approval of the plans and specifications by the water compliance unit and construction of the facility in accordance with such approval, a water discharge permit would be issued. Section 22a-209-4 (b) of the Regulations of Connecticut State Agencies provides in pertinent part: "The information required to be in an application for a permit to construct shall depend upon the type of solid waste facility proposed. Such information shall be outlined in these regulations and further detailed in guidelines prepared by the Department. The information in the application must be sufficient to demonstrate the ability of the facility to comply with the requirements of these regulations. An application will not be deemed complete until all information required by statutes or regulations or otherwise requested by the Commissioner have been submitted in proper form. "(1) Application for each solid waste facility permit to construct shall be made by the owner or operator of the facility on forms furnished by the Commissioner and signed by the owner and, if the applicant is the operator, the operator, and shall include but not be limited to the following as the Commissioner deems necessary: "Information required by the Rules of Practice of the Department; name and address of the operator, owner, and, if the operator or owner is a business entity, the names and addresses of all parent and subsidiary corporations, partners, corporate officers and directors, stockholders holding more than fifty percent of the stock of the corporation; a list of all solid waste facilities which each of the above persons are or have been associated with and their positions and responsibilities; name and address of the agent for service; facility location; type of facility; type of proposal (e.g. new facility, expansion or other alteration); a list of other permits required for the facility; an explanation of how the proposal relates to the State Solid Waste Management Plan; information as to the financial stability of the applicant; a commitment to post the proper surety if required by these regulations; a copy of any lease, deed or other agreement regarding the ownership, control or use of the facility; a list of any outstanding administrative orders against the facility; a list of supporting materials submitted with the application; and any other information which the Commissioner deems necessary. "(2) A facility plan, including engineering studies and proposals, shall accompany the application and be prepared by an engineer licensed to practice in the State of Connecticut; shall contain sufficient information to demonstrate an ability to comply with these regulations; and shall include but not be limited to the following information and supporting materials as the Commissioner deems necessary and as further detailed in engineering guidelines provided by the Commissioner: "(A) For solid and special waste disposal areas: "(i) a detailed area map at a scale and contour interval approved by the Commissioner which shall depict the site and surroundings within one-half mile, noting natural and artificial features and land use; including but not limited to all structures and overhead and underground utilities and a statement by each affected utility that the proposed activity adequately protects these utilities in compliance with applicable standards; "(ii) detailed site maps at a scale and contour interval approved by the Commissioner depicting all items specified in (A) (i) above and existing, site preparation, and final grades, property boundaries, existing and proposed fill limits including location of fill limit markers, soil boring and monitoring locations, proposed structures on site, access and site roads, fencing, buffer zones and screening; "(iii) cross sections through the site, at a minimum of one parallel and one perpendicular to ground water flow, depicting existing, site preparation and final grades and elevation and flow direction of ground water, type and structure of bedrock and type and location of soils. "(iv) supplemental maps and plans not prepared as part of the engineering study but used as reference materials for engineering and operational interpretations; "(v) hydrogeologic and geologic information including predictions of movement of and impact on surface and ground water, including water supply wells, from existing and proposed site activities, and the names and addresses of all landowners within the area of potentially impacted ground waters, detailed soil boring logs; details of monitor well construction and development, the method of testing and testing results; "(vi) operational plans suitable for field use by the operator including but not limited to details of construction, sequence of fill, a list of the type and amount of equipment and the number and responsibilities of staff, daily operations, traffic flow, controls necessary to protect the public health, safety and welfare, emergency procedures, communications equipment, regular maintenance schedules, information to be recorded and recording procedures, and methods of measuring waste, and monitoring parameters and schedule; "(vii) a discussion of expected site life and post-closure use; and "(viii) any other information which the Commissioner deems necessary. "(B) For transfer stations, resources recovery facilities or other volume reduction plants, and biomedical waste treatment facilities: "(i) all applicable information required under Section 22a-209-4 (b) (2) (A) of these regulations; "(ii) detailed drawings and specifications of site structures, all fixed and transport equipment, methods of volume reduction and storage, and a discussion of utility provision; "(in) approximate volume of each waste type to be handled, a list of types of facility users and municipalities served, associated facilities for the ultimate disposal of the wastes, residues, and recycled materials, and contingency plans for periods of shut down or breakdown; "(iv) a copy of all facility operation and maintenance manuals, and a discussion of: OSHA requirements and how these requirements will be met, materials and energy balance as appropriate, proposed performance tests, system reliability and redundancy/backup system, operation and maintenance budget; and "(v) any other information which the Commissioner deems necessary." The plaintiffs' assertion that the defendants' application was incomplete is based on the absence of the following: (1) a list of solid waste facilities with which Ref-Fuel is associated; (2) information as to Ref-Fuel's financial stability; (3) hydrogeologic and geologic information about the facility, specifically, the proposed location of soil borings and information about the soil pertaining to foundation design; (4) detailed information concerning the operation and maintenance of the facility; and (5) information identifying the location for the ultimate disposal of ash residue and bypass waste produced by the facility. See Regs., Conn. State Agencies § 22a-209-4 (b). Our rules of statutory construction apply to administrative regulations. See Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 687 A.2d 415 (1991); see also Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 228, 497 A.2d 1005 (1985). Particulate matter measuring less than ten microns in diameter, PMio, is a pollutant, the emission of which is subject to regulation under the Clean Air Act. 42 U.S.C. § 7401 et seq. (1988); see 40 C.F.R. § 52.21 (b) (23) (i) (1990). With respect to PM10, "a significant amount" is the potential to emit 15 tons per year. See 40 C.F.R. § 52.21 (a) (23) (i) (1990). It is undisputed that the facility has the potential to emit PMi0 in significant amounts. Ambient air quality is a classification of the air based on the level of pollutants that are present. 1 F. Grad, Treatise on Environmental Law § 2.03, p. 2-82. Under the Clean Air Act, the administrator is required to establish standards of ambient air quality for designated regions of the United States that the states are required to implement, maintain and enforce pursuant to state implementation plans. Id.; see also 42 U.S.C. § 7409, 7410 (1988). The prevention of significant deterioration of the ambient air quality (PSD) is an express policy of the Clean Air Act. See 42 U.S.C. § 7471 (1988); see also 1 F. Grad, supra, § 2.03 [b], p. 2-170. The requirements of 40 C.F.R. § 52.21 (c) through (m), (p) (1990), are designed to ensure PSD.

The defendants' petition for certification for appeal from the Appellate Court, 24 Conn. App. 818, is denied.

Peters, C. J. The principal issue in this appeal is whether the state sustained its burden of disproving the insanity defense tendered on behalf of a man who killed his victim as part of a mutual suicide pact. The defendant, Michael Jarrett, was charged with having committed the crime of murder in violation of General Statutes § 53a-54a (a). After a probable cause hearing established that the state had sufficient evidence to proceed, the defendant interposed a multifaceted defense of mental disease or defect and elected to be tried to a three judge panel of the Superior Court. The trial court found him guilty as charged and sentenced him to a term of imprisonment of fifty years. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3). We affirm the judgment of the trial court. The three judge panel could reasonably have found the following facts. The defendant and the victim became romantically involved after the victim began babysitting for the defendant's son. Because of a substantial age disparity between the defendant, who was in his thirties, and his teenage victim, the victim's mother filed a complaint that led to the defendant's conviction of risk of injury to a child, for which he received a suspended sentence conditioned on his not seeing the victim. Distressed by the efforts to enforce their separation, which the defendant and the victim knowingly tried to circumvent, they entered into a suicide pact. Each of them alluded to their plan of action in conver sations with a mutual friend, shortly before the fatal day; the defendant told the friend that he intended to do something that he characterized as dangerous. On September 6,1983, in a park in Manchester, the defendant killed the victim by stabbing her twice with his knife, and stabbed her once more after her death. Although he thereafter also stabbed himself, his three self-inflicted lacerations proved not to be fatal. When police officers arrived at the scene, they found that the defendant's clothing was stained with blood from the victim as well as from his own wounds. The defendant told a paramedic, who was examining him to ascertain the extent of his wounds, that his girlfriend was in the woods nearby and that she was dead. In his defense against the charge of murder, the defendant formally denied that he had stabbed the victim, but relied principally on a defense of mental disease or defect. He properly notified the state, in accordance with Practice Book § 758 and 759, that he intended to rely upon expert evidence to put into question whether his mental condition: (1) rendered him incapable of forming the specific intent to commit murder; General Statutes (Rev. to 1983) § 53a-54a (a); (2) rendered him legally insane; General Statutes (Rev. to 1983) § 53a-13; or (3) demonstrated that he had committed the crime under extreme emotional disturbance. General Statutes (Rev. to 1983) § 53a-55 (a) (2). The trial court found the defendant guilty as charged. In two oral memoranda of decision, one denying the defendant's motion for acquittal and the other rendering its judgment, the court found that the defendant had killed the victim and had intended to do so. After hearing the evidence relating to the defendant's mental disease or defect, the court further determined that the testimony of lay witnesses and of the state's expert witness proved that the defendant had not lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct under the requirements of the law. Accordingly, the court concluded that the state had established the elements of the crime of murder beyond a reasonable doubt. In his appeal, the defendant contends that his conviction should be set aside because: (1) he was entitled to an acquittal because the evidence at trial was insufficient to establish his guilt beyond a reasonable doubt or to establish that the state had satisfied its burden of disproving his defense of mental disease or defect beyond a reasonable doubt; and (2) he was entitled to a new trial because the trial court should not have relied on an inculpatory statement that he made to the state's psychiatric expert. We are unpersuaded. I The defendant has mounted two challenges to the sufficiency of the evidence to support his conviction. He urges us to hold, contrary to the trial court, that the state adduced insufficient evidence of his commission of the underlying crime or to rebut his defense of mental disease or defect. Accordingly, he contends that his midtrial and posttrial motions for acquittal should have been granted. We disagree. A In his challenge to the sufficiency of the evidence to warrant his conviction of the crime of murder, the defendant questions the validity of the trial court's findings that he was the person who stabbed the victim and that his conduct was intentional. Neither of these contentions warrants extensive discussion. Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. See State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003 (1990); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Garrison, 203 Conn. 466, 471, 525 A.2d 498 (1987); State v. Cobbs, 203 Conn. 4, 6-7, 522 A.2d 1229 (1987). In this case, the trial court could reasonably have concluded that the defendant committed the homicide on the basis of its factual findings that the defendant was discovered at the scene of the crime, close to the victim's body, covered with her blood, shortly after she had been stabbed by a knife that belonged to him. The court could reasonably have inferred that the defendant had the specific intent to cause the victim's death from its findings concerning the wounds he inflicted upon her and the contemporaneous statements he had made to others concerning the crime. With regard to the latter, it was especially probative that, at the scene of the crime, the defendant volunteered that his girlfriend was dead in the woods nearby and that he knew she was not merely unconscious but dead. Earlier, he had told a friend about his plans to do something that he himself characterized as dangerous. This record in its entirety is sufficient to sustain the trial court's conclusion that the defendant had committed the crime of murder. B The defendant's central challenge to the sufficiency of the evidence is his assertion that the state did not disprove his defense of mental disease or defect beyond a reasonable doubt. At the time of this trial, the state bore the burden of proof on this defense. Although resolution of this second issue presents a closer question than the first one, we conclude that the trial court's judgment must stand. At the trial, the defendant adduced expert testimony by two psychiatrists, Peter M. Zeman, M.D., and Walter A. Borden, M.D., and two clinical psychologists, David F. Berry, Ph.D., and John A. Cegalis, Ph.D., in support of his contention that he could not be held criminally responsible for the stabbing of the victim. These experts testified that the defendant, at the time of the stabbing, as a result of mental disease of psychotic proportion, either paranoid schizophrenia or bipolar illness, lacked substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law. They agreed that the defendant's mental disease was not proximately caused by voluntary substance abuse. They described the defendant as suffering from delusional beliefs about "astroplaning," reincarnation, and the existence of life on another planet. In their view, the defendant's psychopathology genuinely led him to believe that, in stabbing the victim, he was not harming her or causing her pain but was instead enabling her to be reunited with him in another place and in another form. To satisfy its burden of proof, the state presented Donald R. Grayson, M.D., as its own expert witness. Grayson acknowledged that the defendant was delusional and possibly psychotic. His own examination of the defendant led him to conclude nonetheless that, despite the defendant's bizarre ideation, the defend ant understood that what he was doing was legally wrong even though he felt it was not morally wrong. As further evidence of the defendant's knowledgeability, the state relied on two lay witnesses, a former roommate who testified that the defendant had knowingly planned to violate the restrictions on his probation and the friend who testified of the defendant's planning to undertake, the day before the stabbing, some undefined but dangerous action. The trial court was entitled to find credible the testimony of the state's witnesses and, on that basis, to conclude that the defendant's sanity had been proved by the state beyond a reasonable doubt. State v. Evans, supra, 238-39; State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). The court was not required to adopt the view of the defendant's expert witnesses even though they outnumbered the witnesses presented by the state. Similarly, the court was not required to disregard the view of the state's expert witness even though he conducted his mental status examination thirteen months after the occurrence of the homicide. We note, in this regard, that the defendant did not file a notice of intent to rely on a defense of mental disease or defect until nine months after the victim's death. We conclude, therefore, that the defendant has not sustained his claim of evidentiary insufficiency on the question of insanity and is therefore not entitled to acquittal of the charge against him on that ground. II The defendant contends, in the alternative, even if he was not entitled to acquittal, he should be afforded a new trial. He contends that the trial court deprived him of his rights under Practice Book § 760 and his constitutional rights to due process by relying in part on a statement "on the issue of guilt" that he had made during his court-ordered examination by the state's psychiatrist, Grayson. We disagree. Grayson testified that, in his professional opinion based on his mental status examination and his historical review of the defendant, the defendant "did have the capacity to appreciate the wrongfulness of his behavior and could have conformed his behavior to the expectation of the law." He described the mutual desperation of the defendant and the victim as the reason for their mutual suicide pact. He then explained his understanding of the defendant's mental status as follows: "[The defendant] realized that it was legally wrong but because of his system of beliefs, he did not feel it was morally wrong and since both of them would be dead, it would have no long lasting effect that would harm anybody and that they would be together." The state then asked: "And this was also—was this true of the attempt to run away, this awareness of the legal requirements concerning his relationship with [the victim]?" The defendant objected to this question on the ground that it was "not relevant," but the trial court allowed the question to be answered. The defendant asked for and was granted an exception. To the extent that the defendant's claim rests on an alleged violation of the provision of the Practice Book, it cannot be sustained because this contention was not clearly articulated to the trial court. An objection on the ground of irrelevance does not suffice to alert the trial court to the exclusionary policy contained in § 760. As a general rule, we will not overturn the judgment of a trial court for alleged deviations from the rules of the Practice Book in the absence of a contemporaneous objection distinctly raising that claim at trial. Practice Book § 4185. An objection after trial on a motion for acquittal does not satisfy the requirement for a contemporaneous objection. To bypass this procedural obstacle to appellate consideration of his claim, the defendant characterizes the issue as having sufficient constitutional overtones to warrant review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In other circumstances, we have acknowledged that "[s]ection 760 of our Practice Book effects a compromise between the defendant's right to avoid self-incrimination and the state's right to procure and present evidence of the defendant's mental state when such evidence is relevant to an issue at trial." State v. Boscarino, 204 Conn. 714, 736, 529 A.2d 1260 (1987); State v. Lovelace, 191 Conn. 545, 551-52, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984). Because a court-ordered psychiatric examination may impinge on the rights of criminal defendants to due process of law, we have held that "§ 760 must be 'strictly construed to protect the fundamental constitutional right to liberty.' State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981); State v. Shockley, 188 Conn. 697, 711, 453 A.2d 441 (1982); State v. Schaeffer, 5 Conn. App. 378, 382, 498 A.2d 134 (1985)." State v. Boscarino, supra. The fact that an allegation of noncompliance with § 760 may sometimes have constitutional dimensions does not, however, establish the existence of such a constitutional nexus in every case. On the record in this case, we are unpersuaded, for two reasons, that the defendant has raised a claim of constitutional magnitude. First, the state established the defendant's guilt, apart from his insanity defense, by evidence that it adduced in its case-in-chief. It did not call Grayson as its witness until the defendant had put his mental status into issue by the testimony of his expert witnesses. Grayson's testimony addressed the defendant's mental status rather than "the issue of [the defendant's] guilt" of the crime with which he was charged. He was purporting to convey his clinical impression of the defendant's state of mind rather than any specific admission of legal guilt on the part of the defendant. The state must have the opportunity to rebut an insanity defense. But for the residual rights preserved by § 760, a defendant who has put his mental status into issue has waived any constitutional objection to the testimony of a court-appointed psychiatrist. State v. Steiger, 218 Conn. 349, 362-66, 590 A.2d 408 (1991); State v. Manfredi, 213 Conn. 500, 513, 569 A.2d 506, cert. denied, U.S. , 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990); State v. Fair, 197 Conn. 106, 109, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986); State v. Lovelace, supra, 550; and see Buchanan v. Kentucky, 483 U.S. 402, 421-24, 107 S. Ct. 2906, 97 L. Ed. 2d 336, reh. denied, 483 U.S. 1044, 108 S. Ct. 19, 97 L. Ed. 2d 807 (1987). Our law "strikes a balance between the legitimate needs of the state and the cognizable rights of the defendant. On the one hand, without access to a psychiatric report, the state cannot respond intelligently to defenses that concern a defendant's mental status. On the other hand, the state's use of information obtained by court-appointed psychiatrists is not unlimited. The state may not rely on statements made by the defendant during a compulsory psychiatric examination to meet its affirmative burden of proving the defendant's guilt in any criminal proceeding." State v.Fair, supra, 110-11; cf. United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir. 1976); Lee v. County Court of Erie County, 27 N.Y.2d 432, 267 N.E.2d 452, 318 N.Y.S.2d 705 (1971). An ambiguous claim of evidentiary noncompliance with § 760 does not establish that the prosecutor has crossed over into the forbidden territory of constitutional misuse of statements elicited in a compulsory psychiatric examination and thus does not warrant belated plenary review. Second, before Grayson took the stand, the defendant's expert witnesses had already testified, without objection, about their interviews with the defendant. Their testimony had described in detail the defendant's prior relationship with the victim, his reluctance to suspend that relationship, and the circumstances that led to the mutual suicide pact and the stabbing of the victim. The defendant has cited no authority, and our research has discovered none, to suggest that a defendant has a due process right to exclude testimony from a state's witness that corroborates testimony previously elicited by the defendant from his own witnesses. Once the defendant has waived his constitutional protection against self-incrimination in the presentation of his defense, he has no basis for a further constitutional objection to testimony to the same effect that is proffered by a court-appointed psychiatrist. See Buchanan v. Kentucky, supra. Even if Grayson's testimony could be construed as relevant to the defendant's guilt of the crime charged, therefore, its admission would not give rise to a constitutional claim in the circumstances of this case. See State v. Steiger, supra; State v. Manfredi, supra; State v. Fair, supra; State v. Lovelace, supra, 550. The judgment is affirmed. In this opinion the other justices concurred. General Statutes (Rev. to 1983) § 53a-54a (a) provided: "murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime." General Statutes (Rev. to 1983) § 53a-13 provided: "LACK OF CRIMINAL RESPONSIBILITY BY REASON OF MENTAL DISEASE OR DEFECT. In any prosecution for an offense, a defendant may be found guilty but not criminally responsible if, at the time of the proscribed conduct, he lacked substantial capacity as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. A finding of criminal responsibility shall not be barred if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct." General Statutes (Rev. to 1983) § 53a-55 (a) (2) provided in relevant part: "A person is guilty of manslaughter in the first degree when . . . (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection." The defendant has briefed one final issue, challenging the court's denial of his motions for correction of finding and for acquittal. He acknowledges, however, that this issue merely encapsulates, in procedural form, the substantive issues on which he relies for reversal of his conviction. According to Cegalis, the defendant suffered from bipolar illness rather than schizophrenia because he was a person whose mood swings from depression to euphoria. The defendant's mental condition was formerly labeled manic depressive psychosis. Practice Book § 760 provides: "In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination." The defendant claims that he called the requirements of Practice Book § 760 to the attention of the trial court in his Motion for Correction of Finding and his Motion for Acquittal. The defendant argued, at that time, that Grayson's testimony about "the objective facts should not be used in furtherance of the State's proof of the act." The state rejoined that Grayson's testimony had been offered only to substantiate its claim with respect to the defense of insanity. The court, in denying the defendant's motions, noted that "there was no single incident in the report that was written by Dr. Grayson that influenced our decision."

The plaintiffs' petition for certification for appeal from the Court of Common Pleas for the judicial district of Waterbury is denied.

The plaintiff's motion to dismiss the appeal from the Court of Common Pleas in Windham County is denied.

The defendant's petition for certification for appeal from the Appellate Session of the Superior Court is denied.

Bogdanski, J. This is an appeal by the commissioner of transportation from a reassessment of damages for the partial taking of the plaintiff's land for the improvement of route 7 in the town of Brookfield. The plaintiff applied to the Superior Court for a review of the statement of compensation filed by the commissioner in the amount of $28,000. The matter was referred to the Hon. James P. Doherty, a state referee, who, exercising the powers of the Superior Court, held a hearing and reassessed damages in the amount of $93,000. From that judgment the commissioner has appealed, assigning error in the refusal of the court to find material facts and in the conclusions reached. The error directed at the refusal to find material facts has not been briefed and is considered abandoned. Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809. On June 22,1973, the commissioner took 7.15 acres of the plaintiff's land, along with an easement to drain and a right to grade. Before the taking, the plaintiff's property consisted of 44.785 acres and was located in two zones. The westerly portion, where the plaintiff's property abutted route 7, 4.205 acres in area, was zoned commercial. That land was not affected by the taking. The remainder of the subject property, 40.58 acres in area, east of the commercially zoned parcel and abutting route 133, was zoned industrial. The 7.15 acres taken consisted of two parcels, both of which were unimproved. One of the parcels taken consisted of 2.80 acres, of which two-tenths of an acre was part of the Still River riverbed. The second parcel was 4.35 acres in area, of which 1.3 acres were a part of the Still River riverbed. The subject property was encumbered with a Connecticut Light and Power Company line easement which ran in a northerly direction across the property and was 125 feet in width. That easement encumbered 2.2 acres of which 1.6 acres were located in the taking area. A second easement abutted the first easement along its westerly boundary. It gave the power company access across the property to transport materials, cut brush and service its power-line easement. No part of that easement was within the taking area. No structures could be erected on the land burdened by those easements, but the property could be used for parking, storage, and certain other purposes. The subject property before the taldng was primarily rolling farmland, cultivated with corn and hay when in season. The land taken was located principally in the area of Still River, which flows in a northerly direction, and was generally wet, swampy, and wooded land, approximately five to seven feet below the level of the other property. In assessing damages, the trial court found that the average per-acre value of the property before the taking was $12,000 for a total value of $537,420. It then found that the remaining 35.63 acres retained their value of $12,000 per acre for a total value of $427,560. At $12,000 per acre, the 7.15 acres taken were valued at $85,800, which together with $7200 in severance damages resulted in the reassessment at $93,060, called $93,000. The defendant presses two claims: (1) that the court erred in ascribing to the land taken an average per-aere value, when that land, compared with the entire tract, was inferior in quality and encumbered with an easement, and (2) that the court's conclusion that the acreage taken was equal in value to the remainder of the property is not supported by the subordinate facts found. It is undisputed that the highest and best use of the subject property was for commercial and industrial development. It is also undisputed that the land taken varied in quality from the remaining land, with some portions located in low and swampy areas, while other parts extended into the Still River riverbed. Some of the land taken was also burdened by preexisting easements. Nevertheless, the record reveals that the land taken could have been utilized in various ways to expand and supplement the purposes to which the remaining property could be put. One such use would be to allocate the land taken as part of the 75 percent open space zoning requirement, thereby permitting 77,841 more square feet of the remaining land to be used for building construction. The part taken could also have been used to satisfy zoning setback requirements, for parking, storage and employee recreational areas. Moreover, the presence of the water in the Still River could have been used for various commercial purposes, such as for the cooling of machinery, air conditioning and the processing or removal of waste. We conclude that the record amply supports the court's action in ascribing to the land taken an average per-acre value. The defendant also argues that in evaluating the land taken, which was different in degrees of wetness, elevation and terrain, the trial court should have found separate and different valuations for the acres taken because of their inferior quality. A similar claim was made in the case of Lynch v. West Hartford, 167 Conn. 67, 355 A.2d 42, where the town claimed that in evaluating three adjacent parcels the court was required to find separate and different valuations for each. In that case, the court determined the single highest and best use of the entire subject property and concluded that it was not required to find separate and different valuations for each of the three adjacent parcels. On appeal, we found no error, stating (pp. 76-77) that: "Having reasonably concluded, on the basis of the evidence before him, that the highest and best use of the entire . . . property was in the heavy construction business to which it had been put, the referee was entitled to reject the appraisal . . . based on a contrary assumption and to disregard irrelevant variations in the terrain in adopting a uniform valuation for the land prior to the taking. The low elevation of portions of parcels 1 and 3 did not render those areas unsuitable for use in the construction business because it did not prevent the storage there of some construction materials. The referee was, therefore, not required to devalue portions of the . . . property on the basis of their elevation." Similarly in this case, where the court found the highest and best use of the entire property, it was not required to make separate and different valuations. In assessing the value of the property taken, the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. Esposito v. Commissioner of Transportation, 167 Conn. 439, 441, 356 A.2d 175; Textron, Inc. v. Wood, 167 Conn. 334, 345, 355 A.2d 307. The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard. Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 99, 230 A.2d 9. The court's conclusion that the average value of the property taken was equal in value to the remainder of the subject property is adequately supported by the subordinate facts found. There is no error. In this opinion the other judges concurred.

The defendants' motion to dismiss the appeal from the Superior Court in Hartford County is denied.

The plaintiff's petition for certification for appeal from the Court of Common Pleas in Fairfield County at Stamford is granted.

Callahan, J. The petitioner, Alphonso Johnson, is in the custody of the respondent warden of the Connecticut Correctional Institution at Somers. His incarceration resulted from his conviction of a crime committed in Connecticut for which he was originally sentenced on February 16,1979, to a term of imprisonment of not less than twenty years nor more than forty years. His sentence was later modified to a term of imprisonment of not less than ten years nor more than twenty years. While the petitioner was in custody in Connecticut, but prior to his Connecticut conviction, prosecuting officials in New York notified the Connecticut authorities of criminal charges pending against the petitioner in New York and asked that a detainer be lodged against the petitioner pertaining to those charges. On March 5, 1979, following the petitioner's conviction and sentencing in Connecticut, the New York authorities requested temporary custody of the petitioner pursuant to Article IV of the Interstate Agreement on Detainers (IAD). On March 16,1979, the petitioner was notified by Connecticut officials of the request for his temporary custody by New York prosecuting authorities and was asked to sign a form waiving extradition. The petitioner refused to sign such a waiver. Thereafter, on April 2, 1979, the governor of Connecticut was notified of New York's request that it be granted temporary custody of the petitioner for the purpose of placing the petitioner on trial in New York on New York's outstanding criminal charges. On April 19,1979, the governor of Connecticut gave notice that she did not disapprove of New York's request. See Interstate Agreement on Detainers, General Statutes § 54-186, Art. IV (a). Accordingly, on August 9,1979, temporary custody of the petitioner was transferred to the New York authorities. The petitioner's trial on New York's criminal charges commenced on April 4, 1980. On May 7, 1980, he was convicted of those charges, and on September 5,1980, he was sentenced to a term of imprisonment in New York of not less than fifteen years nor more than life. He was thereafter returned to Connecticut to complete the service of his Connecticut sentence. Subsequently, the New York authorities lodged a detainer with the respondent warden based on the petitioner's conviction in New York. The petitioner appealed his New York conviction in the courts of that state without success, until his appeal rights were exhausted in 1983. Therefore, when the petitioner is paroled or discharged from his Connecticut sentence, if the New York detainer filed against him is valid, he will be turned over to the New York authorities to serve his sentence in that state. The petitioner, however, filed a petition for a writ of habeas corpus in the Superior Court in Connecticut. In his petition he alleged that the New York detainer that is lodged against him as a result of his New York conviction should be dismissed and removed from his file because his presence in New York for trial was obtained by a procedure that was in violation of Article IV of the I AD. The habeas court, as a threshold issue, found that it had the authority to dismiss the New York detainer if the procedure used to obtain the petitioner's presence in New York for trial violated the IAD. See Remick v. Lopes, 203 Conn. 494, 498-99, 525 A.2d 502 (1987). The habeas court went on to find that the holding of the United States Supreme Court in the case of Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981), which was decided while the petitioner's New York conviction was on direct review, required a pretransfer hearing for the petitioner before he could lawfully be transferred to New York for trial. Cuyler v. Adams, supra, was an action brought pursuant to 42 U.S.C. § 1983 for the alleged violation, by Pennsylvania officials, of the respondent Adams's rights under the IAD. The IAD is a uniform act that, as previously noted, is codified in Connecticut as General Statutes § 54-186. In Cuyler, the United States Supreme Court determined that Article IV of the IAD, which provides for the involuntary transfer of prisoners serving a term of imprisonment in one state to another state for trial on pending criminal charges, requires that such prisoner be afforded a pretransfer hearing substantially in accord with § 10 of the Uniform Criminal Extradition Act, prior to the transfer of the prisoner from the sending state to the receiving state. The Cuyler court found that the respondent Adams, who had not been afforded such a hearing, stated a claim for relief under 42 U.S.C. § 1983. Cuyler v. Adams, supra, 450. The habeas court, relying primarily on Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334, reh. denied, 490 U.S. 1031, 109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989), determined that Cuyler, which was decided after the petitioner had been transferred to, and tried, convicted and sentenced in New York, but while his case was still on direct review, was to be given retroactive effect and therefore was to be applied to the petitioner's habeas claim. The habeas court concluded that the application of Cuyler to the petitioner's claim required the dismissal of New York's postconviction detainer lodged at Somers because the petitioner had failed to receive a pretransfer hearing prior to his removal to New York. We disagree. Teague v. Lane, supra, holds generally that, with certain exceptions not pertinent here, new constitutional rules of criminal procedure will not be announced in or applied to cases that are on collateral review. The court in Teague also reiterated the view it had expressed in Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), that " 'failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.' " (Emphasis added.) Teague v. Lane, supra, 304. The Teague court made clear, however, as did the Griffith court, that the court had reference to constitutional rules of criminal procedure when it mandated the application of newly announced rules of criminal procedure to cases still on direct review at the time the rules were announced. See Diggs v. Owens, 833 F.2d 439, 442 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S. Ct. 1277, 99 L. Ed. 2d 488, reh. denied, 486 U.S. 1018, 108 S. Ct. 1759, 100 L. Ed. 2d 220 (1988). Cuyler v. Adams, supra, was not decided on constitutional grounds. Cuyler resolved a conflict among divided federal courts of appeal and state courts as to the proper statutory construction of Article IV of the IAD. Id., 435-36. There is nothing in Cuyler to suggest a constitutional basis for the rule it announced relating to the construction of Article IV. Further, there is nothing in Teague or Griffith that suggests that nonconstitutional rules of criminal procedure are to be given retroactive effect. "There is no reason to apply the Griffith [or Teague] constitutional retroactivity holding here as the [IAD] is 'nothing more than a set of procedural rules . . . .' United States v. Palmer, 574 F.2d 164, 167 (3d Cir.), cert. denied, 437 U.S. 907, 98 S. Ct. 3097, 57 L. Ed. 2d 1138 (1978). Therefore, a violation of the [IAD] is not an infringement of a constitutional right." Diggs v. Owens, supra, 442. Because we conclude that Cuyler did not announce a constitutional procedural rule, the habeas court should not have accorded Cuyler retroactive application to the petitioner under Teague and Griffith. Furthermore, Cuyler was a case brought under 42 U.S.C. § 1983. It was not a habeas corpus proceeding or a criminal case. The most that can be said for Cuyler, therefore, is that it is precedent for the proposition that the petitioner may have a viable § 1983 claim. We have been unable to find any authority, however, nor has the petitioner directed us to any, that suggests that Cuyler requires dismissal of a posteonviction detainer in a habeas action because of the lack of a pretransfer hearing. The judgment of the habeas corpus court is reversed and the case is remanded with direction to dismiss the habeas corpus petition. In this opinion Peters, C. J., Covello and F. X. Hennessy, Js., concurred. The IAD is codified in Connecticut as General Statutes § 54-186. Title 42 of the United States Code, § 1983 provides: "CIVIL action for DEPRIVATION OF RIGHTS "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia." Article IV of the Interstate Agreement on Detainers, General Statutes § 54-186, provides: "(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. "(b) Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor. "(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. "(d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery. "(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." The pertinent provision of § 10 of the Uniform Criminal Extradition Act is codified in Connecticut as General Statutes § 54-166, which provides: "appearance of accused in court, habeas corpus. No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he is first taken forthwith before a judge of any court having criminal jurisdiction in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel states that he or they desire to test the legality of his arrest, the judge of such court shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the state's attorney of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state." The habeas court in its memorandum of decision also extensively discussed the cases of Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), and Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415, reh. denied, 495 U.S. 924, 110 S. Ct. 1960, 109 L. Ed. 2d 322 (1990), in arriving at its conclusion that Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981), was applicable to the petitioner's claim. Penry and Saffle rely on Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334, reh. denied, 490 U.S. 1031, 109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989), for their rationale. The petitioner in Diggs v. Owens, 833 F.2d 439, 442 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S. Ct. 1277, 99 L. Ed. 2d 488, reh. denied, 486 U.S. 1018, 108 S. Ct. 1759, 100 L. Ed. 2d 220 (1988), which was a habeas corpus action, attempted to persuade the court that an IAD violation should be given retroactive effect because of Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). The court of appeals decided otherwise.

It appearing that the defendant in the above-entitled case has failed to prosecute his appeal from the Superior Court in New Haven County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed unless the defendant on or before January 11,1977, takes such steps as are necessary to perfect the appellate record.

Loiselle, J. The defendants, Frank M. Grasso and Frank J. Pastore, were found guilty, on a trial to a jury, of arson in violation of former § 53-82 of the General Statutes in connection with a fire on November 16, 1968, in an unoccupied two-family house located at 75 Shepard Street in New Haven, Connecticut. Both defendants have appealed from the judgments rendered on the verdicts, and their appeals were consolidated by leave of court. After argument on the appeal, the defendant Pastore died. The appeal is therefore moot as to him. State v. Granata, 162 Conn. 653, 289 A.2d 385; State v. Raffone, 161 Conn. 117, 120, 285 A.2d 323. The assignments of error pressed and briefed on appeal by the defendant Grasso will be considered. These concern (1) the denial of motions for the production of all information of prior "criminal involvement" of certain of the state's witnesses and for a mistrial and (2) the court's rulings on evidence. At the trial, evidence was introduced tending to show that the fire was not accidental. Murray Hershman, president of the Haven Realty Company, which owned the property at 75 Shepard Street, testified that he had contacted one Marshall Fazzone with a view to getting someone to burn down the property in order to collect the insurance, and that he and Fazzone had conspired with G-rasso and Pastore, who agreed to set the fire and were paid for setting it. Fazzone corroborated this testimony, which was denied by both defendants. On appeal, the defendant Grasso makes numerous claims of error, but only those which were briefed are determined. Fox v. Fox, 168 Conn. 592, 593, 362 A.2d 854. Before the trial, his counsel filed a motion for disclosure of all exculpatory material, to which the state replied that it had none. At the trial, counsel renewed the motion, expanding it to seek all prior "criminal involvement" of the state's witnesses, claiming that Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, gave this right. The court denied the motion, and exception was taken. The court did, however, order the state to disclose felony convictions of its witnesses. In Brady v. Maryland, supra, a case involving the discovery, after trial, of information which had been known to the prosecution but unknown to the defendant, the United States Supreme Court held that the prosecution's suppression of exculpatory evidence material to guilt or punishment requested hy the defense violated due process. It did not afford a defendant a general right of discovery. Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82; see annot., 7 A.L.R.3d 8, 22 § 3. A recent decision, United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342, states that the rule of Brady v. Maryland, supra, arguably applies in three quite different situations. Firstly, error in a constitutional sense is committed when the prosecution puts on testimony which it knew or should have known was perjured, and the materiality of such testimony is strictly construed in favor of the defendant. Secondly, when a pretrial request for specific evidence is submitted hy the defense and a substantial basis for claiming materiality exists, the prosecution's failure to respond is seldom, if ever, excused. Lastly, when no request, or a broad request, for "exculpatory" or "Brady" material is submitted, the prosecution is required to disclose material which creates a reasonable doubt of guilt which would not otherwise exist. In a footnote, the court (p. 112 n.20) expressly rejected the view that the standard of materiality "should focus on the impact of the undisclosed evidence on the defendant's ability to prepare for trial." It must be emphasized that the present case is not an exact Brady situation where there is discovery, after trial, of specific information not revealed, hut a direct appeal where the claim is made that unknown information, and known information, was suppressed hy the prosecution. Necessarily, in this appeal, to make a determination of the issue presented, we are confined to the facts and information revealed in the appeal. Applying the test of United States v. Agurs, snpra, the facts of the present case present a problem within the last category, since there is no claim of known perjured testimony, and the request made by counsel was not specific. The term "criminal involvement" is not well defined, and is not limited to information which would create a reasonable doubt of guilt, but could include reports that a witness had been merely questioned regarding a crime, had been seen in unsavory company or had been observed in suspicious circumstances. The motion was impermissibly broad and, hence, properly denied by the trial court. The state's assurance to the court that "it has in its possession no undisclosed evidence that would tend to exculpate [a] defendant justifies the denial of a motion for inspection that does not make some particularized showing of materiality and usefulness." United States v. Evanchik, 413 F.2d 950, 953 (2d Cir.). United States v. Agurs, supra, does impose a duty upon the prosecution to disclose information sufficient to create a reasonable doubt of guilt independent of any motion by the defense for disclosure. When a conviction depends entirely upon the testimony of certain witnesses, as it did in the present ease, information affecting their credibility is material in the constitutional sense since if they are not believed a reasonable doubt of guilt would be created. Felony convictions can be used to impeach, and the trial court ordered those disclosed. Information that a witness has been arrested, is being prosecuted, or has confessed to a crime, tends to show that the state has power over a witness which may induce him to give testimony which will win favor with the state and, when the witness is an essential link in the state's case, must be disclosed. See State v. Annunzialo, 169 Conn. 517, 524, 363 A.2d 1011. The prosecution's failure to disclose, however, in advance of the trial, Hershman's confession that he had set a second fire at Haven Street, Fazzone's arrest in a stolen carpeting case, and the promise of immunity given to Fazzone in the present case, did not deprive the defendant of a fair trial, since all that information came out at the trial. A finding of error cannot be based on the unsupported speculation of the defense that there were other constitutionally material matters in the state's file which were not turned over to the defense. State v. Moynahan, 164 Conn. 560, 593, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219. The court was not in error in denying the defendant's motion for disclosure of all prior "criminal involvement" of the state's witnesses, nor has it been shown that the state has failed to disclose any information that might create a reasonable doubt of guilt which would not otherwise exist. The defendant assigns as error the court's restriction of the cross-examination of Hershman, which was apparently directed toward showing that Fazzone had claimed Hershman was threatening him, but that no arrest of Hershman for obstructing justice or threatening government witnesses had been made. The scope of cross-examination of a witness is largely a matter in the discretion of the trial court. State v. Clemons, 168 Conn. 395, 404, 363 A.2d 33. While this court has held that arrest or indictment of a witness may be inquired into when it tends to show bias; State v. Annunziato, supra; see also annot., 62 A.L.R.2d 610, 624 § 3; it has never been suggested that facts which merely suggest that an arrest might have been made are admis sible to show bias. Nor is the alleged threat admissible to show eonseionsness of guilt in Hershman (compare State v. Moynahan, supra, 597, involving the defendant's frightening of the prosecutor's family), since Hershman's guilt was not at issue in the present case. The defendant Grasso also assigns error in the court's admission of certain testimony by Hershman and in its denial of a motion by the defendant Pastore for a mistrial. Hershman testified that he asked Pastore to set a second fire in property on Haven Street two years later, and that Pastore agreed to go look at the building but then refused to set the fire because "there were too many cops around." Although this is argued vigorously in the defendant Grasso's brief, neither the record nor the transcript reveals that counsel for Grasso made any objection to the admission of this testimony, which concerned only Pastore. Practice Book § 226 requires that an objection and exception be taken to be a ground of appeal. The merits of the claim are therefore not discussed. There is no error in the appeal of Frank M. Grasso; the appeal of Frank J. Pastore is dismissed as moot, and the trial court is directed so to note on its records. In this opinion House, C. J., Cotter and Barber, Js., concurred. Section. 53-82 was repealed in 3969, repeal effective October 1, 1971, as part of a general revision of the criminal laws. The present arson statutes are § 53a-lll to 53a-113, inclusive. "[Practice Book] Sec. 226. objections to evidence Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal."

The plaintiff's motion to dismiss the appeal from the Superior Court in Hartford County is granted.

The defendants' motion to dismiss the plaintiffs' cross-appeal filed April 27, 1976, from the Superior Court in Fairfield County is granted.

The plaintiff's petition for certification for appeal from the Court of Common Pleas in Fairfield County at Stamford is denied.

The plaintiffs' petition for certification for appeal from the Court of Common Pleas in Middlesex County is granted.

The defendant's petition for certification for appeal from the Appellate Court, 24 Conn. App. 195, is dismissed.

The plaintiffs' motion to dismiss the appeal from the Court of Common Pleas in New Haven County is granted.

The plaintiff's motion to dismiss the appeal from the Superior Court in Fairfield County at Stamford is granted.

The plaintiff's motion for a review of the order of the trial court terminating a stay of execution in the appeal from the Superior Court in Middlesex County is granted and the relief sought therein is denied.

The defendant's motion for a review of the order of the trial court dated August 31, 1976, in the appeal from the Superior Court in New Haven County is granted and the relief sought therein is denied.

It appearing that the defendants in the above-entitled case have failed to prosecute their appeal from the Superior Court in Middlesex County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed.

Loiselle, J. The plaintiff was convicted of a violation of General Statutes § 19-480 (a) and 19-452 in selling a cannabis-type drug. Upon appeal that conviction was sustained. State v. Lombardo, 163 Conn. 241, 304 A.2d 36. Lombardo petitioned for a new trial on the ground of newly discovered evidence. The trial court rendered judgment denying the petition and from that judgment this appeal has been taken. At the trial in which Lombardo was convicted, two undercover agents testified that they purchased four kilos of marihuana from the defendant. The defendant denied the charges, and offered in his defense an alibi. The jury rendered a verdict of guilty. At the original trial, the state offered evidence that Ronald Minas, a detective, had met a man, whom he identified in court as the defendant, in Wickham Park in Manchester four or five times during July, 1970, and that each time they had discussed a sale of marihuana. On the evening of July 22, 1970, Minas and his associate, Officer John C. Mayoros, met with Lombardo at Wickham Park and advised him that they wished to buy as much marihuana as possible for $1000. Plans were made for delivery the next morning at the park. Minas gave his telephone number to Lombardo, so that Lombardo could call him concerning the time for the sale. At about 9 a.m., July 23, 1970, Minas received a telephone call at his home from Lombardo. Arrangements were made for the sale of four kilos of marihuana at Wickham Park at 11 a.m. that morning. Southern New England Telephone Company records showed a call from Lombardo's telephone to Minas' telephone on that day. Minas and Mayoros, the two undercover officers, drove to Wickham Park. Shortly after 11 a.m. Lombardo drove up in a blue Ford. Dominick Lisella arrived in a white Pontiac registered to one Robert Majewski. Lisella opened the trunk of Lombardo's vehicle and a suitcase was opened which contained twenty-four kilos of a substance later identified as marihuana. Minas chose four kilos of this substance from the suitcase and Lombardo accepted $1000 from Mayoros. Minas was never more than two or three feet from Lombardo during the entire transaction. At the original trial before the jury the defendant offered evidence concerning his claim of an alibi. This included testimony by the defendant and by a number of witnesses that on July 22, when the state's evidence put him at Wickham Park arranging for the marihuana sale, he was continuously with friends; that he attended a wake, visited someone at a hospital and returned home, but never went to Wickham Park. ITis alibi for the time of the sale the next day was based on his own testimony, and on the testimony of a friend who saw him at home, preparing to attend a funeral, without an operable car available, at about 11 a.m. on the 23rd, shortly before the state's evidence put him at the park selling marihuana. Another witness testified that she had telephoned Lombardo at his home and had spoken with him three or four times between 11 a.m. and 12:30 p.m. on the 23rd, and that she picked him up at his home at 12:45 to go to a funeral. Another witness for the defense was Robert Majewski, the owner of the white Pontiac mentioned by the state's witnesses. He testified that he spent the night of the 22nd at Lombardo's home, arriving when Lombardo returned with friends from the wake. He also testified that at 10 a.m. on the 23rd he, Dominick Lisella, and Richard Putinas drove the Majewski car to Wickham Park, leaving Lombardo at home in bed. At the park, Lisella and Putinas met "Ron" and "Jack" (presumably the two undercover agents, Ronald Minas and John Mayoros) and drove to a rear parking lot together. He, Majewski, had left the car and was helping two girls wax their car and did not see what went on in the rear lot. Although he was at the park all day on the 22nd and the 23rd, he did not see Lombardo at the park either day. At the original trial Dominick Lisella also testified for the defense. He was a boyhood friend and neighbor of Lombardo, to whom he was like a brother. He testified that he met "Ron" and "Jack" on the evening of July 22nd and discussed "business" with them, but he did not see Lombardo at the park. He spent the night with Lombardo and made a telephone call the next morning from Lombardo's telephone, but he refused to tell to whom he made the call. After the call he went to the park with Putinas and Majewski. He met "Ron" and "Jack" at the park and went with them to the back parking lot. He declined to testify further on direct examination, claiming he might incriminate himself. According to the memorandum of decision, five witnesses testified at the hearing on the petition for a new trial. The testimony of three of those witnesses was discounted by the court as merely cumulative or repetitious of testimony given at the trial. The "new evidence" which the plaintiff claims warrants a new trial is the testimony of Putinas, who did not testify at the original trial, and Lisella, who gave some testimony at the original trial but then invoked the fifth amendment. This "new" testimony is that on the evening of July 22, Lisella made arrangements with Minas and Mayoros for the sale of marihuana, that he made a telephone call to them from Lombardo's home on the morning of the 23rd, put a suitcase of marihuana in the trunk of Majewski's car, drove to the park with Majewski and Putinas, let Majewski out and drove to the back parking lot where he opened the trunk. Putinas and Lisella "participated" in the sale. Minas and Mayoros took the marihuana and gave Lisella the money. Lombardo was not present at the sale. At the hearing, it was explained that Putinas had told Lombardo's counsel at the original trial that he would testify that he participated in the sale, but that on advice from his attorney he changed his mind. Lombardo's counsel issued a subpoena for him, but the sheriff could not find him. Counsel for Lombardo did not ask for a continuance because he concluded that after Lisella claimed the privilege against self-incrimination there was no hope Putinas would testify. The court denied the petition for a new trial, concluding that the testimony of Lisella and Putinas was basically cumulative of testimony given by Majewski and others at the original trial and con tradictory to testimony of the undercover officers. It concluded that the case turned on the credibility of witnesses whom the jury had had an opportunity to observe, and that it did not appear that an injustice had been done or that a new trial with the additional testimony would result in a different verdict. A petition for a new trial is addressed to the legal discretion of the trial court. State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141; Smith v. State, 141 Conn. 202, 207, 104 A.2d 761. "The rules for granting a new trial on the ground of newly discovered evidence are well established. The evidence must, in fact, be newly discovered, material to the issue on a new trial, such that it could not have been discovered and produced on the former trial by the exercise of due diligence, not merely cumulative and likely to produce a different result. Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334." Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753; Hamlin v. State, 48 Conn. 92, 93. It is true that in a capital case, which this is not, "[a] 11 of the . . . rules [relating to new trials] are qualified . in the light of the principle laid down in Andersen v. State, 43 Conn. 514, 517, that fin a case where human life is at stake, justice, as well as humanity, requires us to pause and consider before we apply those rules in all their rigor.' " Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433; Hamlin v. State, supra, 94. Whether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it. A petition for a new trial is a civil action. The plaintiff has the burden of proof, by the preponderance of the evidence. "A petition will never be granted except on substantial grounds." State v. Grimes, supra, 325. The plaintiff must persuade the court that the new evidence he submits will probably, not merely possibly, result in a different verdict at a new trial, or that an injustice has been done. Pradlik v. State, 131 Conn. 682, 686, 41 A.2d 906. It is not sufficient for him to bring in new evidence from which a jury could find him not guilty—it must be evidence which persuades the judge that a jury would find him not guilty. Judge Cardozo of the New York Court of Appeals had occasion to consider this problem in a case when a new trial was sought because state witnesses had recanted their prior testimony. Concurring in affirming denial of the new trial, he rejected the view that a judge, faced with conflicting stories, should abandon the search for truth and turn it over to a jury. He said: "I think it was the duty of the trial judge to try the facts, and determine as best he could where the likelihood of the truth lay. . . . He was not at liberty to shift upon the shoulders of another jury his own responsibility." People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733; see 58 Am. Jur. 2d, New Trial, § 166. At first blush it might appear that where a person confesses to a crime and will testify to that effect, that testimony is of such weight that it is not only material to the issue of the innocence or guilt of an accused, but would necessarily also be likely to produce a different result. In this case, however, the evidence does not rise to that level. The evidence claimed to be new is that Lisella arranged for and made the sale, that Putinas was present at the time of the sale and "participated" in it, and that Lombardo was not there. Analyzing this evidence, it does not contradict or add significantly to the evidence produced at the trial to the jury. At that trial, Majewski's testimony was that both Lisella and Putinas were at the scene of the sale. Lisella, before his refusal to continue to testify, stated that he was the one who had discussed "business" with the undercover agents the night before the sale, had made a telephone call on the next morning from Lombardo's house, had driven with Majewsld and Putinas to Wickham Park, had met the undercover agents and went to the back parking lot. The undercover agents testified that at the parking lot Lisella was the one who opened the trunk of the vehicle; Lisella's participation in the sale was evidence which was produced by the state and stood uncontradicted by anyone. The only new contradictory evidence was that the money was passed to Lisella rather than to Lombardo, and that Lombardo was not there. At most, the testimony of Putinas makes him an interested observer. The totality of the new evidence boils down to being cumulative to the claimed alibi, which was the subject of extensive testimony at the jury trial. In view of the evidence produced at the trial to the jury which made Lisella a participant, according to the state's witnesses and by inference from Majewski's and Lisella's own testimony, the claimed new evidence is not of the same substance as that which gave concern in Smith v. State, supra. Essentially, the whole story is one that the jury heard at the trial, although some facts which the jury might have inferred are filled in by the new testimony. The jury judged the credibility of the witnesses and found Lombardo guilty. Under all the circumstances it cannot be said that the trial court abused its discretion in concluding that the evidence in all probability would not, if offered in a new trial, produce a different result, and in concluding that no injustice had been done. There is no error. In this opinion House, C. J., Longo and Dannehy, Js., concurred.

Bogdanski, J. This appeal arises from an action for mandamus to compel the mayor and town council of Wallingford to order the refund of taxes paid to the town by the plaintiff, totaling $32,578.52, plus interest. From a judgment in favor of the defendants the plaintiff has appealed, assigning error in the refusal to find material facts, in the overruling of its claims of law, and in the conclusions reached. The finding discloses the following facts: The plaintiff, Farms Country Club, Inc., is a private country club which operates a private golf course and other recreational facilities in the town of Wallingford. The Gaylord Farm Association, hereinafter Gaylord, is a charitable corporation with its principal place of business in the town of Walling- ford. On July 1, 1961, Gaylord was the owner of 302 acres of land located in Wallingford devoted to the charitable purpose of providing hospitalization to disabled residents of Connecticut. On January 11, 1962, Gaylord leased 148 acres of that land to the plaintiff for a term of 100 years, with annual rent reserved, for use as a private country club. Prior to the leasing, the entire 302-acre parcel was exempt from real property taxation by the town of Wallingford. Since July 1, 1961, the 148-acre parcel leased to the plaintiff has been assessed annually in the name of the plaintiff as lessee and the taxes thereon have been paid to the town of Wallingford by the plaintiff. That assessment was made pursuant to the provisions of § 12-66 of the General Statutes. The plaintiff paid the entire tax due on the leased land for the years 1968,1969,1970 and 1971. No real estate taxes were assessed against the leased premises in the name of Gaylord from 1961 nor did Gaylord pay any taxes on the premises since 1961. On January 7, 1972, pursuant to the provisions of § 12-66 (b) of the General Statutes, the plaintiff applied to the tax collector for a tax refund of taxes paid on the tax lists of October 1, 1968, 1969 and 1970. On October 17, 1972, the plaintiff applied for a tax refund of an amount assessed and paid on the tax list of October 1, 1971. The tax collector received the applications, verified the amounts paid as taxes, the amounts paid as rent and the amounts claimed as refunds, and certified those amounts to the defendants as accurate. The town council, however, refused to order payment of any tax refund. The trial court found that the 148-acre parcel under lease would be taxable to a charitable organization like Gaylord if used as a private country club; see General Statutes §12-64, 12-81 (7) and 12-88; that the payment of taxes with a right' of refund is equivalent to an exemption from the burden of taxation, whether in whole or in part; and that a refund under § 12-66 (b) in the present circumstances amounts to a tax exemption for the property under lease. It then concluded that "[i]t would be an absurdity to presume that the legisla ture intended by Section 12-66 (b) to upset long established principle and policy regarding release from taxation of property of charitable organizations used for charitable purposes and to grant such freedom from taxation to a lessee not using the property for a charitable purpose and under circumstances that do not absolve even a charitable organization from liability to taxes," and that § 12-66 (b) "does not apply to entitle plaintiff to a refund of the claimed taxes under present circumstances." The plaintiff contends that the court erred in reaching its conclusions; that the language of § 12-66 is clear and unambiguous, and where this is so, its meaning is not subject to modification by construction; that effect must be given to the legislative intent as expressed by the wording of the statute; that courts cannot read into a statute something which is not there in order to reach what the court thinks would be a just result; and that a due regard for the differing functions of the legislative and judicial branches of government requires that the courts refrain from rewriting the expressed language of a statute. The issue then centers upon an interpretation of § 12-66, its intent and purpose, with particular reference to subsection (b). Subsections (a) and (c) of § 12-66 which authorize the taxation of the leased property appear inconsistent with the literal operation of subsection (b) so as to make the intent and purpose of § 12-66 ambiguous. When confronted with ambiguity in the intent and purpose of a legislative enactment, it becomes necessary to apply the rules of statutory construction to ascertain the actual intention expressed by the language used. Statutes are to be construed so as to carry out the intent of the legislature. Little v. Ives, 158 Conn. 452, 455, 262 A.2d 174. Where ambiguity exists, a court is not confined to the literal meaning of the words. State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207-208, 91 A.2d 773. There is a presumption that the legislature, in enacting a law, did so in view of the existing relevant statutes and intended it to be read with them so as to make one consistent body of law. Norwalk v. Daniele, 143 Conn. 85, 87, 119 A.2d 732. In the absence of an intent clearly expressed, the court cannot impute to the legislature an intent which involves a departure from existing statutes; State ex rel. Rourke v. Barbieri, supra, 209; nor will the court impute to the legislature an intent to pass antagonistic legislation. Wilson v. West Haven, 142 Conn. 646, 656,116 A.2d 420. Statutes are repugnant only when they cannot reasonably be given effect. If courts can by any fair interpretation find a reasonable field of operation for two statutes without destroying their evident meaning, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect. Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536. Gaylord was organized and established to maintain a hospital in New Haven County on a nonprofit basis. If the leased property were taxed to Gaylord, pursuant to § 12-64, no refund could be made since the property would not be used for a charitable purpose, and therefore would not qualify for an exemption under § 12-88. Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 146, 256 A.2d 234. To give effect to § 12-66 (b) and refund the taxes to the plaintiff as requested would be to accord the prop erty when held by the plaintiff a release from the burden of taxation that is not given even to a charitable corporation such as Gaylord. It cannot be presumed that the legislature intended § 12-66 (b) to operate in contravention of the provisions of § 12-64 and 12-88. Taxation is an act of sovereignty to be enforced, so far as it conveniently can, with justice and equality for all. Hartford v. Hartford Theological Seminary, 66 Conn. 475, 482, 34 A. 483. " '[T]he legislature ordinarily intends its laws to apply to all equally; it does not intend to grant privileges to select individuals. So when exceptions or special privileges are claimed under a statute, this ordinary or presumptive intention is entitled to weight, according to the circumstances, in ascertaining the actual intention expressed by the language used.' Yale University v. New Haven, 71 Conn. 316, 329, 42 Atl. 87." McLaughlin v. Poucher, 127 Conn. 441, 444, 17 A.2d 767. Subsections 12-66 (a) and (c) are intended to provide municipalities with an alternative source for the collection of the real property tax by giving the towns the choice of pursuing either the charitable organization or the 100-year lessee. The legislative intent of § 12-66, read as a whole together with other relevant statutes, can reasonably be seen as applying to prevent the property of a charitable organization not used exclusively for a charitable purpose from escaping taxation, whether as against either the charitable organization or the lessee, and to avoid an assessment of taxes from being collected twice by a municipality. See Warren, Krattenmaker & Snyder, "Property Tax Exemptions for Charitable, Educational, Religious and Governmental Institutions in Connecticut," 4 Conn. L. Rev. 181, 284-85. The town of Wallingford has collected the taxes in question only once, that is from the plaintiff lessee. Whatever other purposes and intents § 12-66 (b) may have, it is not one to free the real property of a charitable organization, leased under the provisions of § 12-66 and used exclusively for private gain, from any and all taxation. In the circumstances of this case, we conclude that subsection (b) of § 12-66 does not apply to entitle the plaintiff to a refund of the claimed taxes. Our ruling on the principal issue involved in this appeal makes discussion of the plaintiff's assignment of error directed at the court's finding unnecessary. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 12-66. property op religious, educational OR CHARITABLE CORPORATIONS; LEASEHOLD INTERESTS. (a) Lands or buildings, the title to which is in the name of any religious, educational or charitable corporation, otherwise exempt from taxation and which have been leased for a term of one hundred years or more by a lease executed with an annual rent reserved, which land and buildings are used for other than religious, educational or charitable purposes, shall, annually, be subject to local assessment and taxation in the name of the lessee, assignee or sublessee of such land on the assessment day of the town wherein situated. Except as provided in this section, all provisions of the law relating to the filing of assessment lists and appeals to the boards of tax review and to the court of common pleas shall, mutatis mutandis, apply to each such lessee and all provisions of the law relating to assessors and boards of tax review shall, mutatis mutandis, apply to such property. (b) Any person who lias paid the entire tax due any town for a period of twelve months on any such property may make application in writing to the tax eolleetor of such town for a refund of the whole or such part of such tax as represents, under the terms of the lease, the amount of rent paid to such corporation for such period. Such application shall be made within three years of the due date of the whole or first instalment of such tax, shall contain a recital of the facts and shall state the amount of refund requested. The collector shall, after examination of such application, refer the same, with his recommendations thereon, to the selectmen of such town and shall certify to the amount of refund to which such applicant is entitled. Upon receipt of such application and certification, the selectmen shall draw an order upon the treasurer in favor of such applicant for the amount so certified, without interest. Any action so taken by such selectmen shall be a matter of record and the tax collector shall be notified thereof in writing, (e) This section shall be construed to authorize taxation of leased real estate under such lease."

The defendant's petition for certification for appeal from the Appellate Session of the Superior Court is denied.

It appearing that the defendant in the above-entitled case has failed to prosecute his appeal from the Superior Court in New Haven County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed unless the defendant on or before February 1, 1977, files his brief. Argued December 7 decided December 7, 1976 James D. Cosgrove, chief public defender, for the appellant (defendant). Ernest J. Diette, Jr., assistant state's attorney, for the appellee (state).

The plaintiff's motion to dismiss the appeal of the defendants Edmund J. Pfotzer and E. John Pfotzer from the Superior Court in Fairfield County at Stamford is granted.

It appearing that the parties in the above-entitled case have failed to pursue their appeal and cross-appeal from the Superior Court in Fairfield County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the defendants' appeal and the plaintiffs' cross-appeal be and hereby are dismissed.

The plaintiffs' motion to dismiss the appeal from the Superior Court in Hartford County is granted.

The petition by the plaintiffs R. Freeman Butts et al. for certification for appeal from the Court of Common Pleas in New Haven County is granted.

Loiselle, J. The plaintiff, the natural father of an illegitimate child, brought an application for a writ of habeas corpus to determine his rights of visitation with respect to his son. The trial court dismissed the petition. The plaintiff attacks the finding made by the trial court. Assuming, arguendo, that all the corrections in the subordinate facts which are sought should be made, the final conclusion of the court must stand because it is supported by the finding. The final conclusion of the court was that it would not be in the best interests of the child to grant visitation to the father. The baby was born in August, 1973, and has lived with the defendant mother and her parents continuously except for a short time immediately after birth. Prior to the birth, the plaintiff father refused to marry the defendant and urged her to have an abortion. Some time after the baby was born the plaintiff offered a trial marriage, but the defendant declined. The plaintiff voluntarily contributed to the medical expense of the birth, sent money for the child's support and gifts at Christmas. He visited the child occasionally between the ages of three and six months, until the defendant refused to permit any more visitation. He lives in New Hampshire, is employed, owns property and introduced evidence of his good character and affection for children. The court concluded that no meaningful relationship had developed between the father and his son, and that he had played no meaningful role in the raising of the child. The father argues that the mother has prevented him from developing such a relationship or playing such a role. The question of "fault" in this respect is irrelevant, however, since in an action concerning the custody or visitation of a minor child, the paramount consideration is the best interests of the child. Simons v. Simons, 172 Conn. 341, 374 A.2d 1040; Tippin v. Tippin, 148 Conn. 1, 4, 166 A.2d 448; Murphy v. Murphy, 143 Conn. 600, 603,124 A.2d 891. In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551, it was held that both the due process clause and the equal protection clause of the fourteenth amendment entitle the father of an illegitimate child to the same hearing as a legal father to determine his fitness before being deprived of custody of his child. On the other hand, the mother of an illegitimate child is the sole guardian of the person of the child. General Statutes § 45-43. The mother had been the custodian of this child since birth. There is no indication that the plaintiff introduced a shred of evidence that the child needed to have an opportunity to develop a relationship with his natural father or that visitation would have a positive effect on the child. The legal rights of no one, even a parent, may militate against the court's determination of the best interests of the child. Doe v. Doe, 163 Conn. 340, 343, 307 A.2d 166; Howarth v. Northcott, 152 Conn. 460, 464, 208 A.2d 540; Kelsey v. Green, 69 Conn. 291, 298, 37 A. 679. The plaintiff relies heavily on the case of Appeal of Gwiszcz (Commonwealth v. Rozanshi), 206 Pa. Super. 397, 213 A.2d 155. In that case the trial court, after hearing all the evidence, granted the putative father visitation rights. On appeal, the court upheld the conclusions of the trial court based on the facts found. The court stated that "[w]e recognize that granting visitation privileges to the putative father may not always serve the child's best interests. Visitation rights, however, are always a matter for the supervision of the courts. . . . [E]very case must be decided on the basis of its own particular facts. The unique problems of each child must receive individual attention and consideration. Any attempt by us to determine the best interests of every child by a single rule would be judicially, socially and morally unsound." Id., 402, see also annotation, 15 A.L.R.3d 887. The trial court has broad discretion in deciding questions regarding custody or visitation. Simons v. Simons, supra, 348; Pfeiffer v. Pfeiffer, 99 Conn. 154,157,121 A. 174. In this case, the friction which would be engendered by court-ordered visitation was not offset by any prospective benefit to the child, nor was the child threatened by the termination of an important existing relationship. It cannot be said that the court abused its discretion in determining that visitation was not in the best interests of the child. Nowhere in the finding, conclusions or memorandum of decision does it appear that the court based its decision on the fact of illegitimacy as suggested by the plaintiff's brief. There is no error. In this opinion the other judges concurred.

Barber, J. Following a jury trial, the defendant was found guilty of murder. He was sentenced to be imprisoned, and this appeal is taken from the judgment of the court. On appeal the defendant claimed that the court erred in its charge to the jury and that certain statutes violated due process. In his brief, however, he has pursued only the issue of the claimed erroneous jury charge. Any claim of error which is not briefed is considered abandoned. State v. Ruiz, 171 Conn. 264, 265, 368 A.2d 222. The facts of the homicide were not in substantial dispute. At approximately 11:45 p.m. on December 28, 1973, James Frosolone and his friend, Barbara Musco, left the Starlite Lounge in Hamden. The defendant, Charles Crawford, approached Frosolone from behind and shot him seven times with a .22 caliber revolver, twice in the head and five times in the back. Several of the shots were fired into the victim after he had fallen to the sidewalk. Immediately thereafter, the defendant, in the company of a friend, Robert Pascale, ran into the woods across the street and eventually fled to the state of Florida where he was subsequently arrested. At the trial, the defendant did not contest the fact that he had killed Frosolone but based his defense on a claim that his voluntary intoxication from alcohol and drug intake prior to the shooting-resulted in his incapacity to form the requisite intent necessary for a conviction of murder. The defendant took the stand in his own behalf and testified that he had consumed a great deal of alcohol and a tablet of LSD (lysergic acid diethylamide) which were producing feelings of paranoia by the time he reached the Starlite Lounge. He then testified that he continued consuming alcoholic drinks during the course of the evening and that he felt that he was increasingly under the influence of the LSD drug. The defendant claimed that he could not remember obtaining or possessing a gun that night nor could he recall shooting Frosolone, although he did remember events leading'up to and following the shooting. No medical evidence was presented by the defense. The state offered evidence from which the jury could reasonably have concluded the following: The defendant acted, moved, and spoke in an apparently natural, normal manner during the course of the evening at the Starlite Lounge. He danced and conversed with various people to whom he did not appear intoxicated. He and his friend Pascale were involved in an altercation with another young man named Joey. Joey and Pascale were asked to leave the lounge and the defendant left with them. Later, the defendant and Pascale were part of a group arguing in the parking lot which was dispersed by Starlite Lounge's security guard. The victim, Frosolone, was head of a New Haven gang calling itself W. Sava. Although Frosolone was involved in no arguments on the night of the shooting, his gang had previously fought with a group from Hamden. Robert Foley, with whose family the defendant was living, testified as a witness for the state that on the night of the shooting at about 10:45 or 11. p.m., the defendant had returned to the Foley home, told Foley that somebody had threatened him and that he needed his gun, which he took from behind the stereo in Foley's room. The defendant told Foley that he and Pascale had some trouble with some youths from Grand Avenue in New Haven. He then left the Foley home and did not return until about 12:30 a.m. when he told Foley that he, Crawford, had shot "somebody from Grand Avenue." Foley saw the defendant change his clothes and then heard the defendant tell Pascale on the telephone that he wanted to leave Connecticut. The defendant eventually ended up in Florida where he was apprehended. The only error claimed and pursued by the defendant on appeal is the alleged inadequacy of the trial court's charge to the jury relating to the burden of proof on the effect of voluntary intoxication. The defendant did not request a charge nor take any exception to any portion of the charge as delivered by the trial court. On appeal, appellate counsel has raised this issue for the first time. This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided adversely to the appellant's claim. Practice Book § 652; see State v. Simms, 170 Conn. 206, 208, 365 A2d 821; Gelinas v. Nelson, 165 Conn. 33, 40, 327 A.2d 565. In two exceptional circumstances, however, this court will consider newly raised claims. "The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second 'exceptional circumstance' may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, 165 Conn. 61, 70, 327 A.2d 576. The defendant's counsel claims that the trial judge's inadequate charge had the effect of shifting to the defendant the burden of persuading the jury that he was so intoxicated as to be incapable of forming the requisite intent for murder, thereby effectively requiring him to prove an element of intent. The United States Supreme Court, in a decision rendered after the defendant's trial, held that such a burden of proof imposed by the state on a defendant did not comport with the due process requirement as defined in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368, that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508. Although there is some doubt that the "exceptional circumstances" doctrine recognized in State v. Evans, supra, is applicable to the defendant's claim of error in this case, we consider the single issue which is dispositive of this appeal. The portions of the charge to the jury pertaining to the issue of intoxication and its relationship to the specific intent required for murder amounted to an unexceptionable statement of the relevant Connecticut law. It is a well-established rule that the charge to the jury must he read as a whole and that individual instructions are not to be judged in "artificial isolation" from the overall charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536. Under our penal code, murder is defined as causing the death of another person with intent to cause the death of that person or a third person. General Statutes § 53a-54a (a). It was undisputed that the defendant caused Frosolone's death. Intoxication is not a defense to a criminal charge hut evidence of intoxication may be offered by the defendant whenever relevant to negate an element of the crime charged. General Statutes § 53a-7. As used in this section, "intoxication" means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body. Ibid. In this case, the defendant offered testimony regarding his intoxication to negate the essential element of specific intent in his prosecution for murder. Throughout the trial, however, the burden remained with the state to persuade the jury beyond a reasonable doubt that the defendant, in spite of any intoxication, had the capacity to, and did, form the intent to cause Frosolone's death when he shot him. This was in accordance with the duty of the state to prove beyond a reasonable doubt all the elements of a charged crime, including intent. See In re Winship, supra; State v. Brown, 163 Conn. 52, 64, 301 A.2d 547; State v. Benson, 153 Conn. 209, 215, 214 A.2d 903. The instructions to the jury, properly read as a whole, correctly and adequately informed the jury of all the relevant law. See State v. Dortch, 139 Conn. 317, 93 A.2d 490. In particular, the court specifically charged the jury that the defendant had no burden of proof at all and that the state had the burden of proving that the defendant was capable of forming the required intent. Thus there was neither an erroneous charge nor even a reasonable possibility that the jury were misled. See State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077. The United States Supreme Court decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, is inapplicable to the case before us. In Mullaney, the court considered a Maine law affirmatively shifting the burden of proof to the defendant by requiring him to prove the critical fact in dispute. Under the Maine law, a defendant was specifically required to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Mullaney v. Wilbur, supra, 703. As we have already stated, neither Connecticut law nor the charge to the jury in the present case placed the burden on the defendant with respect to proving his capacity, or lack thereof, for having an intent to cause Frosolone's death when he shot him. Intoxication is neither a defense nor an affirmative defense to a murder charge under Connecticut law. The jury charge and. the statutory treatment of intoxication as it relates to specific intent do not fall within the Mullaney prohibition. The defendant's claim that the effect of the charge to the jury was to make the issue of the defendant's intoxication analogous to an affirmative defense and to shift the burden of proof on the issue of intent to the defendant is without merit. There is no error. In this opinion the other judges concurred.

The plaintiffs' motion to dismiss the appeal from the Superior Court in Hartford County is denied.

The defendant's "Motion to Strike the Appendix to Brief of the Plaintiffs-Appellees" in the appeal from the Superior Court in Fairfield County is denied.

The defendant's motion for continuance of his post-trial bond pending final disposition of his appeal from the Superior Court in Hartford County is dismissed, the motion being predicated on a rule of practice (§ 2319) not applicable to procedure in this court.

House, C. J. In April, 1974, the plaintiff brought the present action to modify the provisions of a decree entered by the Superior Court of California, county of San Diego, on October 20,1972, dissolving the marriage of the parties. The decree provided for alimony payments by the defendant to the plaintiff in the amount of $100 per month until May 31, 1974, at which time the alimony payments were to be reduced to $1 per year and then to terminate altogether on May 31,1976. It also awarded custody of the three minor children of the parties to the plaintiff and ordered support payments by the defendant in the amount of $100 per child per month, the payments to be made by government allotment. Both parties are now residents of Con nectient. The plaintiff at the time of trial was a full-time student at the University of Connecticut with one school year remaining before she earned her bachelor's degree. The defendant was an officer in the United States Marine Corps, stationed in Hartford. After a hearing, the court found that the medical and dental needs and expenses of the children justified a modification of the California support decree and directed that in addition to the $100 monthly support for each child to be paid by .government allotment the defendant should pay their reasonable medical and dental expenses not exceeding $15 a month for each child. It denied the plaintiff's claims for modification of the California alimony order, for an order with respect to payment of a claimed $90 arrearage in alimony payments, and for the costs incurred in bringing the present action aside from attorney's fees since free legal services were provided by the iegal clinic of the University of Connecticut School of Law. From this judgment the plaintiff took the present appeal, assigning as error several conclusions of the court as unsupported by the finding of facts and the overruling of eight claims of law made by the plaintiff concerning the judgment to be rendered. We find no merit to the first assignment of error. The finding of facts has not been attacked. Exercising the broad discretion which is vested in the trial court in such cases as this; deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182; Aguire v. Aguire, 171 Conn. 312, 314, 370 A.2d 948; LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d, 627; the court could reasonably and logically reach the conclusions which it did. While it is obvious that the plaintiff is hard pressed financially as a full-time student at the University of Connecticut, financing her education by means of scholarships, long-term federal loans and short-term work-study loans, it is also true that since the dissolution of the marriage the defendant's net monthly income from his military service after deductions for taxes and personal living expenses has decreased from $406.59 to $347.77 before deductions for support and alimony. While recognizing that the plaintiff's earning potential will increase upon receipt of a bachelor's degree, the court, nevertheless, concluded that she had failed to demonstrate a sufficient basis for modification of the California alimony decree and that her election to pursue a college education at a Connecticut institution of her choice, with consequent present inability to earn income, was not "chargeable" to the defendant and furnished no sufficient basis for disturbing the California alimony decree. Under all the circumstances which the court found to exist, we cannot hold that the court committed error in reaching the conclusions which it did. The plaintiff's other assignment of error is that the court erred in overruling several of her claims of law. The court found that the plaintiff had made fifteen claims of law with respect to the judgment to be rendered. Whether the claims were properly made before argument in the trial court as required by § 223 of the Practice Book is questionable since one of them is that "[t]he court abused its discretion in denying costs and fees to the plaintiff, where it was shown that she could not afford them." Quite obviously, such a claim could be made only after a judgment the provisions of which the plaintiff could not know before closing her argument. Nevertheless, the court found that the fifteen claims of law were made and further expressly "accepted" seven of them and overruled the remaining eight. The latter ruling is assigned as error. Among the claims of law "accepted" by the court were the following: California law and Connecticut law on the question of modification of alimony and child support orders are similar in all essential respects; a California decree of dissolution of marriage is subject to modification by a Connecticut court to the extent that it is modifiable in California; after the dissolution of the marriage, the obligation to support minor children rests upon both parents according to their respective abilities; under California law, an order of child support may be modified when a material change occurs in the circumstances of one or both of the parties; and, under California law, an alimony order may be modified when a material change occurs in the circumstances of one or both of the parties. The claims of law overruled by the court are, in general, broad statements of law already included in the scope of the accepted claims, inapplicable to the facts found by the court, or insufficient. For example, as we have noted, the court accepted the claim that under California law an alimony order may be modified when a material change occurs in the circumstances "of one or both of the parties." Nevertheless, the plaintiff claims that the court erred because in one instance it overruled a claim that such an order may be modified when a material change occurs "in the circumstances of the man," and also erred in overruling another claim that it may be modified when a material change occurs "in the circumstances of the woman." Quite obviously, neither of these separate overruled claims was a full or correct statement of the law, being in each instance related only to the circumstances of a single sex. The correct and complete law was that accepted by the court—that modification may follow a material change in the circumstances "of one or both of the parties." Similar insufficient statements of claims of law were that under California law an order of child support may be modified when a material change occurs in the circumstances of the children and that a showing of a significant straitening in the circumstances of one party and of a significant increase in the income of the other party is sufficient to warrant a modification in favor of the less-advantaged party. In each instance, the stated reason standing alone is not a sufficient reason for modification. While they are both factors to be considered as part of the whole factual situation at the time of the court's decision, neither standing alone and without regard to all the other circumstances would justify the modification of a decree. The plaintiff's claim of law that "[ujnder both Connecticut and California laws, the education of a wife, considered in respect to future earning potential, is a factor to be examined in determining amount of alimony" could well have been considered by the court to be inapplicable in the present case in view of the court's findings as to the financial circumstances of the parties and the plaintiff's choice to attend a university in Connecticut although she was unable to transfer from California all the academic credits she had accumulated. In any event, it is clear from the court's finding that it did consider the continuing education of the wife as a factor in deciding whether the California alimony decree should be modified. Unlike a jury case where the jury finds the facts and the court in its charge instructs the jury as to what law is applicable to snch facts as the jury may find from the evidence, in a court case it is the court which determines the issues of fact and applies the law to those facts, giving consideration to the claims of law made by counsel so far as they are applicable to the facts which the court finds. As this court observed in C. & C. Electric Motor Co. v. D. Frisbie & Co., 66 Conn. 67, 79, 33 A. 604: "[I]t seems to us that it ought not to be held necessary for a trial court hearing and determining issues of fact, to pass upon all the claims of law made by counsel; to sort them out; to decide which are unsound, which inapplicable; and which are both correct and applicable so far as rules governing the court in reaching its decision, but exhausting themselves, the same as the evidence on which they are based, when that decision is reached. In either case, provided they do not have the effect sought by the party making them, whether because deemed incorrect, inapplicable, or insufficient, they may alike properly be said to be overruled. Upon appeal, what claims were made in the court below will appear; and if proper subjects for review, such claims will be there considered. But in the absence of any contrary indication in the record, the presumption ought to be that the court in drawing its conclusion of 'mixed law and fact,' was guided by correct principles in reference to that portion of the compound which is regarded as fact." The foregoing comment with respect to the applicability to the particular case of a claim of law also applies to the overruled claim made by the plaintiff that "[t]he court may award costs of service and court fees to the plaintiff woman in a domestic relations proceeding." As an abstract principle of law, this statement is undoubtedly a correct one. Stoner v. Stoner, 163 Conn. 345, 355, 307 A.2d 146; Krasnow v. Krasnow, 140 Conn. 254, 261, 99 A.2d 104. But, as those cases indicate, such an award is a matter of judicial discretion exercised in the light of the factual situation. Considering the facts which the court found, we cannot hold that it abused its discretion in refusing to make such an award in this case and, accordingly, in concluding that the abstract principle of law was inapplicable in the present case and, therefore, overruled. There is no error. In this opinion the other judges concurred.

Per Curiam. The defendant appealed from his conviction on a charge of having a deadly or dangerous weapon in a motor vehicle in violation of § 29-38 of the General Statutes. He was a codefendant with Christopher Beauton and their cases were tried together but the appeals were processed separately. On Beauton's appeal (State v. Beauton, 170 Conn. 234, 365 A.2d 1105), we found that the trial court had erred in failing to grant the defendant's motion to set aside the verdict because the state had failed to sustain its burden of proof on the question of the lack of a proper permit for the gun which was found in Beauton's automobile. The same situation exists in this case where Eligió was a passenger in Beauton's automobile. In this case, also, the state presented no evidence that the defendant did not have a state police permit for the weapon. The same result must follow. There is error, the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty and ordering that he be discharged.

Bogdanski, J. The plaintiff, Stanley Dulski, brought this action against the defendants, Jay Appel and Irving Appel, seeking damages for personal injuries allegedly caused by the negligence of Jay Appel in the operation of an automobile owned by his father, Irving Appel. The jury returned a general verdict in favor of the defendants. The plaintiff has appealed from the judgment rendered and has assigned error in the court's rulings on evidence, in its refusal to charge as requested, and in its refusal to set aside the verdict. The plaintiff alleged that "[o]n October 15, 1968, at 3:00 p.m. in Stamford on a right of way between or near the respective residences of the parties, defendant Jay Appel, 18 years old, negligently backed a Chevrolet motor vehicle into [the] plaintiff and knocked [the] plaintiff down and injured [the] plaintiff"; that as a proximate result of that negligence, the plaintiff received serious injuries; that those injuries were caused by the negligence of the defendant operator (1) in failing to keep a proper lookout; (2) in failing to give any signal or warning of his approach; (3) in failing to stop his vehicle when he should have; (4) in operating his vehicle so as to endanger the life, limb and property of the plaintiff; and (5) in so directing his vehicle as to cause it to run into the plaintiff; and that the conduct of the defendant operator was wanton. The defendants denied being negligent and, by way of special defense, alleged that "the plaintiff was on land owned by the defendants and without the . . . permission of the defendants got into and moved [the father's] automobile off the defendants' driveway and, thereafter, upon the defendant, Jay Appel, attempting to leave said premises, said plaintiff provoked . a boisterous argument and threw himself on to the ground, which conduct proximately caused his injuries, which injuries were caused by his contributory negligence in acting in the manner alleged herein." The evidence at the trial was most conflicting. The plaintiff testified that as he was standing in the driveway, the defendant backed his automobile into him and caused him to fall to the ground causing his injuries. The defendants denied the car ever struck the plaintiff and offered testimony to the effect that the plaintiff simply fell to the ground of his own accord somewhere behind the car. The defendants then presented voluminous medical evidence to show that the plaintiff had been suffering from heart and other related illnesses since 1965, the very same injuries he now claims were caused by the alleged incident. The plaintiff claims the trial court erred "in not admitting all the deeds and maps offered to prove plaintiff's ownership of a right-of-way"; "in not charging on plaintiff's claim of right-of-way"; "in failing to charge on one's duty to a trespasser"; and "in denying plaintiff's motion to set aside the verdict." The plaintiff's complaint asserted a cause of action arising from the defendant's alleged negligent operation of a motor vehicle in certain enumerated ways so as to cause the injuries he now complains of. On the state of the evidence, the primary questions for the jury were whether there was any negligent operation, whether there was any contact between the automobile and the plaintiff, and whether the plaintiff's injuries were in fact caused by the alleged incident. To recover, the plaintiff had the burden of affirmatively establishing his claims by a fair preponderance of the evidence. The credibility of the witnesses, therefore, was the paramount issue before the jury. Whether the plaintiff met his burden was a determination for the jury, and the general verdict in favor of the defendants indicates that the plaintiff failed to meet that burden. In view of that sole cause of action, arising out of the negligent operation of an automobile, evidence as to ownership of a right-of-way was not relevant, and was properly excluded in the sound discretion of the trial court. Moreover, the court correctly refused to charge as requested, since the requests likewise pertained to the right-of-way matter. We now consider the claimed error in the denial of the motion to set aside the verdict. A general verdict in the defendants' favor imports that all issues submitted to the jury were found in their favor. Kelly v. Bliss, 160 Conn. 128, 129, 273 A.2d 873; Bradley v. Niemann, 137 Conn. 81, 83, 74 A.2d 876. If the jury could reasonably have found for the defendants on the issue of negligence, that would suffice to support the verdict. Kelly v. Bliss, supra, 130; and see Dinda v. Sirois, 166 Conn. 68, 75, 347 A.2d 75; Hally v. Hospital of St. Raphael, 162 Conn. 352, 363, 294 A.2d 305. In reviewing the court's denial of the motion to set aside the verdict, we consider evidence in the light most favorable to the sustaining of the verdict. LeBlanc v. Bray, 168 Conn. 92, 93, 357 A.2d 926; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748; Maltbie, Conn. App. Proc. § 189. The action of the trial court is tested by the preliminary statement of facts contained in the parties' briefs pursuant to § 631A and 632A of the Practice Book. The jury had evidence before it that on October 15, 1968, the plaintiff went to the parked car of Irving Appel in order to have it moved, tooted the horn several times but received no response. Without permission, he then opened the car door, released the brake and rolled the ear down forty to fifty feet. The defendant, Jay Appel, was in the kitchen having lunch when he heard the horn of the car. He looked out and saw the plaintiff moving his father's car onto the lawn. Jay Appel was a student at Norwalk Community College and was due to attend class at three o'clock that afternoon. He got into the car to drive off to school. The plaintiff, however, stood behind the car and would not let him back the car out. The defendant then asked the plaintiff to move, but each time he tried to move the car, the plaintiff would block his path. On the last occasion, he began to back the car and saw the plaintiff drop to his knees, whereupon he stopped the car and got out. He saw the plaintiff sitting in the driveway three to five feet from the back of his ear. He denied that the car ever struck the plaintiff. "For the attack on the court's refusal to set aside the verdict to succeed, it must appear that the evidence furnished no reasonable basis for the jury's conclusion . The jury were confronted with conflicting evidence at every point. The choice of the more credible evidence was for them to make. Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596." Petrizzo v. Commercial Contractors Corporation, supra, 499. Moreover, the refusal by the trial court, which saw and heard the parties and their witnesses, to disturb the verdict is entitled to weighty consideration. Kazuhynas v. N. C. Casciano & Sons, Inc., 149 Conn. 1, 4,174 A.2d 796. "It is the province of the jury to weigh the evidence and determine the credibility and the effect of testimony; and we must decide the question whether on the evidence presented, the jury could have fairly reached their verdict for the defendants. Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611." Hally v. Hospital of St. Raphael, supra, 359. On the facts presented, the jury could reasonably have found that the defendant operator was not negligent in any of the ways alleged in the complaint. There is no error. In this opinion the other judges concurred.

Longo, J. The defendant was charged with wrongfully appropriating and converting $88.25 in collected tolls to his own use while acting as a toll collection supervisor for the state of Connecticut, in violation of then General Statutes § 53-354. He was tried by a jury of twelve and found guilty, whereupon he was sentenced to pay a fine of $2000 and to be incarcerated for a term of one year. The defendant appealed from the judgment, assigning error in the admission of certain evidence and in several segments of the charge to the jury; in the denial of his motions to dismiss and to set aside the verdict; in the court's failure to find certain facts and in its finding of one fact without evidence. Evidence was presented at the trial from which the jury reasonably could have found the following facts: On November 25,1970, the date of the alleged crime, the defendant, Robert R. Ward, was employed as a supervisor of the Greenwich toll station. The Greenwich toll plaza consisted of sixteen lanes, including automatic and manual lanes, with two lanes, numbers seven and eight, equipped for both manual and automatic collection. The number of automobiles passing through lanes seven and eight was measured by two devices; the first was a loop buried in the roadway which counted vehicles and the second was a visible rubber treadle which counted axles. The treadle count was automatically printed by machines on paper in the administration building. The count from the loop registered in the individual toll booths and was transcribed by hand, at the end of each day, onto the tops of the printed sheets produced by the treadle machine. Coins deposited in the automatic toll collection equipment proceeded through a counting mechanism and into an individual locked vault for each lane. Only supervisors had access to the locked audit room and, though the large vault was customarily unlocked, the small coin vaults kept therein were automatically locked. There were four keys to the small coin vaults, three of which were in the possession of the toll station's superintendent and two cashiers. The fourth key had disappeared sometime prior to November, 1970, and was never found. The automatic collection equipment was able to record auto mobiles passing through a lane without paying a toll. Partial toll payments registered as full violations and the toll collection procedure included the addition of loose change which missed the collection basket and was found on the pavement near the basket. On November 27, 1970, Robert Strong, a service- technician, examined lanes seven and eight and found that two pencils had been jammed in the automatic vehicle counting mechanism to prevent the vehicle counter from registering. An audit by Everett Whitmore, who was employed by the state department of transportation, revealed that a minimum amount of $88.25 was missing from the toll receipts for lanes seven and eight on November 25, 1970. The report also disclosed that there were substantial discrepancies between the treadle and loop counts of vehicles on various days involving all the toll lanes. On November 27, 1970, the two pencils which had been removed from the vehicle counting machines for lanes seven and eight were turned over to superintendent Anthony Stramiello who determined that the machines had stopped counting between 3 and 4 p.m. on November 25, 1970, when the defendant was on duty. A police investigation was then initiated. On April 6, 1971, Detective Corporal Robert Geoghan of the Connecticut state police interviewed the defendant at the Greenwich toll plaza. The defendant denied any knowledge of the pencils which had been jammed in the counting machines. In response to questioning the defendant admitted that he had purchased an eighteen-foot power boat for cash in 1969 and that he was able to live above the level dictated by his income from the state because he and his wdfe gambled and he hustled prostitutes. It is from the admission of this evidence that the defendant's first substantial assignment of error arises. The defendant renews in this court his objection made at trial that the admission of testimony by Detective Geoghan relating statements by the defendant concerning his extra income were inadmissible on the ground that they were irrelevant. When asked to describe his conversation with the defendant, Detective Geoghan testified, over the defendant's objection: "He was asked if it wasn't a fact that he purchased a four thousand dollar, 18-foot power boat in 1969, and paid cash for it. He said he did; that his wife hit the policy play numbers. He said his wife also helps him with extra income. And he said he also hustles prostitutes on the side." Detective Geoghan testified further, over the defendant's objection, that the defendant had said that he owned two automobiles and a home with a mortgage. We agree with the defendant that the above testimony was irrelevant and prejudicial to the defendant and should not have been admitted into evidence. The information in the present case charged the defendant with embezzling $88.25 on or about November 25, 1970. The first test of the admissibility of any evidence is whether it is relevant. Our decisions have emphasized the principle that the court must be allowed wide discretion in ruling on the relevancy of evidence. State v. Evans, 165 Conn. 61, 64, 327 A.2d 576; State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36; Johnson v. Newell, 160 Conn. 269, 276, 277, 278 A.2d 776; State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628. "Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue." Federated, Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715. In order logically to advance the resolution of an issue hy the trier of fact, however, proffered evidence must render the existence of a material fact in the case more certain or more probable than it would have been without the evidence. Federated Department Stores, Inc. v. Board of Tax Review, supra; State v. Belanger, 148 Conn. 57, 167 A.2d 245; see McCormick, Evidence (2d Ed.) § 185. We fail to see how evidence that the defendant had paid $4000 cash for a power boat in 1969 logically increases the probability that he embezzled $88.25 in 1970. While evidence of sudden affluence may be relevant when it appears at or subsequent to the time of the alleged crime of embezzlement; Hansberry v. United States, 295 F.2d 800 (9th Cir.); evidence of affluence before the time of the alleged embezzlement does not bear any probative relationship to the subsequent crime. See annot., 91 A.L.R.2d 1046, 1049, § 3, and cases cited therein. It appears from the transcript of the trial that the state suspected the defendant of having taken, over a period of time preceding November, 1970, significantly more than the $88.25 alleged in the information. This suspicion cannot alter the fact that the state only charged the defendant with taking $88.25 on or about November 25, 1970, and was faced with the task of establishing that proposition beyond a reasonable doubt, and no other. Evidence can be relevant only if it tends to establish a fact in issue. State v. Lombardo, supra; Federated Department Stores, Inc. v. Board of Tax Review, supra. The question whether the defendant had experienced a sudden large increase in wealth prior to the alleged crime was not placed in issue by the information. The evidence that he had lived beyond his means and the testimony as to how he had acquired his extra income, insofar as both related to a period prior to the alleged crime, were irrelevant to the determination whether he had embezzled a specific, relatively small sum on or about November 25,1970. The testimony could have been highly prejudicial to the defendant in the minds of the jurors. For that reason, we find error in the court's admission of the testimony in question. See State v. Ferraro, 160 Conn. 42, 45-46, 273 A.2d 694. Since the ease must be sent back to the trial court for further proceedings and since we will not speculate on what will happen in the trial court, we need not discuss all of the defendant's assignments of error. We do, however, feel that we should provide guidance on one further issue. Thomas v. Commerford, 168 Conn. 64, 70, 357 A.2d 476. The state called to the stand Everett Whitmore, who had issued a report on the alleged shortages at the Greenwich toll station. On cross-examination, the defendant's counsel, Attorney Barry J. Boodman, sought to undermine the accuracy of Whit-more's calculations by attacking the figures upon which they were based. It was crucial to the defense strategy to attack those figures in the hope of instilling a reasonable doubt in the jurors' minds that any money actually had been taken from the toll lanes. During this cross-examination, the court interjected the following comment: "There is also, Mr. Boodman, a presumption in the law that . . . [the state's figures] are accurate until shown differently. They are being kept in the usual course of business. The jury at some time will be instructed accordingly." Court adjourned for the day shortly after the above comment was made. When court reconvened counsel for the defendant requested the court to instruct the jury to disregard the closing comment of the previous session. The court refused and counsel excepted. We find the court's statement erroneous and harmful to the defendant. It has long been recognized that a record kept in the usual course of business is admissible. General Statutes §52-180; State v. Vennard, 159 Conn. 385, 397, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625; Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879; Orzechowski v. Higgins, 146 Conn. 463, 465, 152 A.2d 510; Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 723, 146 A.2d 910. It is equally as clear that business records do not carry any presumption of accuracy merely because they are admissible. The credibility of such records remains a question for the trier of fact. Boland v. Vanderbilt, 140 Conn. 520, 526, 102 A.2d 362; Nitka v. Betlinski, 137 Conn. 314, 316, 77 A.2d 89. Furthermore, the defendant sought to discredit Whitmore's report by establishing that the mechanical devices used to register traffic passing through the toll gates were inaccurate. The defendant elicited evidence tending to establish that the two mechanical counting devices agreed with each other on only forty-five of 240 transactions from November 1 through November 30, 1970. There was also substantial evidence that there were significant differences at many of the toll lanes between the amount of money actually deposited and the amount which should have been deposited according to the treadle and loop counts. There was evidence that on November 25,1970, lanes other than seven and eight showed significant discrepancies between cash intake and the amount of traffic recorded as having passed through the toll gate. Had the defendant been able to raise a reasonable doubt concerning the accuracy of the mechanical counters, Whitmore's calculations would have been subject to challenge. Though this court has recognized the principle that the actions of a public officer acting officially are entitled to a presumption of accuracy; Batch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 568, 345 A.2d 520; State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476; nowhere have we gone so far as to condone a presumption that a machine is accurate. We do not suggest that the records produced by the machines were inadmissible; see State v. Tomanelli, 153 Conn. 365, 371, 216 A.2d 625; rather, we state that, once admitted, their accuracy was a question for the trier of fact. The court, by its comment on the accuracy of the state's figures, may have seriously misled the jury by nullifying the defendant',s attempt to discredit the reliability of the figures produced by the machines. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. "[General Statutes] See. 53-354. embezzlement by public or corporation officer or fiduciary. Any officer, agent or employee of the state or of any public, municipal or private corporation, any executor, administrator, guardian or conservator or any trustee under a testamentary or express trust, who wrongfully appropriates and converts to his own use or to the use of any other person any money, funds or property belonging to, held in trust by or under the control of the state or such corporation, estate, ward, trust or other person, shall be fined not more than ten thousand dollars or imprisoned not more than ten years or both." (Repealed effective October 1, 1971.) For example, Detective Geoghan testified to the following conversation with the defendant: "He was asked if it was possible that he was spending more than ten thousand dollars a year above his yearly salary."

Loiselle, J. After a jury trial the defendant was found guilty of robbery in the second degree. From the judgment entered on the verdict, he appealed to this court. The defendant claims that the court erred in admitting certain evidence and in portions of the charge to the jury. His brief contains none of the material required by Practice Book § 631A to support such a claim; he has printed neither the rulings on evidence, his objections or exceptions, nor the charges to the jury, thus the claims will not be considered. He also claims that the trial court erred in denying Ms motion to dismiss for failure of the state to present a prima facie case. Denial of such a motion is not properly assignable as error. State v. Ralls, 167 Conn. 408, 415 n.2, 356 A.2d 147; State v. Dubina, 164 Conn. 95, 101, 318 A.2d 95; Maltbie, Conn. App. Proc. § 212. The defendant claims that he was denied his right to a speedy trial, which is guaranteed by the sixth amendment to the United States constitution and by article first, § 8, of the Connecticut constitution. The state's brief, which is not contradicted by the defendant, gives the following chronology: November 8, 1974 Bindover to Superior Court. December 3, 1974 Plea of not guilty. December 6, 1974 Motions for bill of particulars and discovery filed. December 20, 1974 Compliance with earlier motions by the state. January 24, 1975 Request for appointment of a special public defender filed. January 31, 1975 Motion denied. February 26, 1975 Motion for speedy trial filed. April 30, 1975 Oral motion for a special public defender granted and Attorney Joseph M. Brophy appointed. May 6, 1975 Motion for speedy trial denied without prejudice. June 25, 1975 Motion to dismiss denied and trial ordered for July. August 7, 1975 Trial commences. Assuming that the defendant was arrested on the date of the offense charged, nine months and eight days elapsed between the arrest and the trial. The Supreme Court's opinion in Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1, established that the sixth amendment guarantee of the right to a speedy trial is "fundamental" and is imposed by the fourteenth amendment on the states. In Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183, the Supreme Court agreed with the state that a delay of about three years before trial of one charged with murder who was already serving a prison term was arguably excusable. The state court had ruled that an affirmative demonstration of prejudice to the defense at trial was necessary to prove a denial of the constitutional right to a speedy trial. The Supreme Court remanded the case for the state court to determine if there was a violation of the accused's fundamental rights under the sixth amendment under the standards mandated by Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607, Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26, and Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101. In Smith v. Hooey, supra, the defendant was indicted by a state court while a prisoner in a federal penitentiary in another state. Thereafter for the next six years by letters and "motions" he continually sought trial. When his mandamus action was dismissed, certiorari was granted by the Supreme Court, which stated (p. 378) that the constitutional guarantee protects at least three basic demands: "'[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.' United States v. Ewell, 383 U.S. 116, 120 [86 S. Ct. 773, 15 L. Ed. 2d 627]." The court held that the state court had a constitutional duty to make an effort to bring the accused to trial and remanded the case for further proceedings. In Dickey v. Florida, supra, a state court secured an arrest warrant charging the defendant with robbery after he was taken into custody and imprisoned by federal authorities. He unsuccessfully made repeated requests to the state court for trial. After more than seven years had passed since the robbery, an information was filed charging him with robbery. After conviction, the Supreme Court vacated the judgment. It stated (p. 37) that "[t]he right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed." It noted (p. 38) that the delay in that case was "exclusively for the convenience of the State," that there was "abundant evidence of actual prejudice to [the defendant] in the death of two potential witnesses, unavailability of another, and the loss of police records." The court ordered the judgment vacated and the proceedings dismissed. In Barker v. Wingo, supra, the defendant was not brought to trial for murder until more than five years after his arrest. He had been confined for ten months before he was released on bail. The prosecution obtained numerous continuances for the purpose of trying the defendant's alleged accomplice so that his testimony, if conviction resulted, would be available at the defendant's trial. The accomplice was tried six times. After the passage of three and one-half years, the defendant made his claim for a speedy trial. The court stated that a defendant's constitutional right to a speedy trial is a vaguer concept than other procedural rights and its denial cannot be established by any inflexible rule. It set up a balancing test in which at least four factors should be considered: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id., 530. The cases recognize that an accused's sixth amendment right to a speedy trial is necessarily relative. It is constitutionally permissible that there be some delay in prosecuting a criminal case, but the delay cannot be inordinate, deliberate or oppressive. Whether the delay involved in completing a particular criminal prosecution violates the accused's right to a speedy trial depends on the circumstances, taking into consideration the factors which Moore v. Arizona mandates. See annot., 21 L. Ed. 2d 905. The defendant in the present case was incarcerated for nine months and eight days before his trial. Although nine months is not an overwhelming period of time, it is of such length that there is a necessity for inquiry into the other factors that go into the balance. State v. L'Heureux, 166 Conn. 312, 319, 348 A.2d 578. The state, in its brief, refers to the crowded criminal dockets. In Barker v. Wingo, supra, 531, it was stated that a neutral reason such as overcrowded dockets should be weighed less heavily than a deliberate attempt to delay on the part of the state but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the state rather than with the defendant. In the present case, the binding over process and plea in the Superior Court took about a month. Another month was involved with motions by the defendant. Evidently the defendant was unhappy with his counsel, for in January he requested another counsel. In April, after his second request, another counsel was appointed. In June, the trial was ordered for July. The trial did commence on August 7, about three months after the appointment of his present counsel. As to the defendant's assertion of the right, the record reveals that a motion for a speedy trial was filed on February 26, and it appears that this motion was denied May 6 without prejudice. On May 29 the defendant moved for a dismissal of the information and it was denied at the same time that a trial was ordered for July. Whether the motions were made purely pro forma or were made with force and deliberation is not shown by the record. See Barker v. Wingo, supra, 529. At any rate, the defendant made two motions to the court asserting the right to a speedy trial and did not acquiesce in the delay. The final factor to be considered is that of prejudice. In Barker v. Wingo, supra, 532, the court reiterated the matters that it had previously outlined as basic demands to protect constitutional guarantees. Smith v. Hooey, supra. Other than the time span, there is no evidence presented in this appeal to indicate any prejudice to the defendant save that of incarceration nor does the defendant claim his defense was impaired. In State v. L'Heurenx, supra, this court held that a nine-month delay did not amount to a denial of a speedy trial absent prejudice in preparing the defense. In that case, however, the defendant was incarcerated pending the disposition of three counts and his motion for a speedy trial was only aimed at one count. In balancing the factors, it is clear that the length of delay between arrest and trial was substantial. The defendant also made two motions asserting the right to a speedy trial. The countervailing factors are that a strong excuse exists for at least one month's delay in consideration of the defendant's motions, and some delay is permissible under ordinary circumstances for binding over purposes and to prepare for trial. Although overcrowded dockets should not be an excuse, that factor does indicate that the delay was not deliberate. Further, the only prejudice is that of incarceration. On balance, the defendant was not deprived of his right to a speedy trial. There is no error. In this opinion House, C. J., Longo and Barber, Js., concurred. The record also shows that on May 29, 1975, the defendant filed a motion to dismiss for denial of a speedy trial.

The petition by the defendant Everett H. Wilson for certification for appeal from the Court of Common Pleas in Tolland County is denied.

The defendant's motion to dismiss the appeal from the Superior Court in New London County is granted unless the plaintiff on or before February 7, 1977, complies with § 608A of the Practice Book and arranges payment for the transcript.

The plaintiff's petition for certification for appeal from the Appellate Session of the Superior Court is denied.

The defendant's petition for certification for appeal from the Appellate Session of the Superior Court is denied.

The defendant's motion to dismiss the appeal from the Court of Common Pleas in Hartford is granted.

Per Curiam. This is an appeal from a judgment of the Superior Court in Fairfield County which dismissed an appeal from a decree of the Probate Court for the district of Norwalk which extended the time for the presentation of claims against the estate of Ella Palmer, deceased. The Probate Court had limited the time for the presentation of claims against the estate to three months from September 21, 1972. Bernadette Palmer, a claimant, had retained an attorney to file a claim on her behalf. The attorney mistakenly listed the last day for filing claims as December 26, 1972. He was at home ill during December and, on December 21, was called by his client about filing her claim. He was unable to arrange to file the claim on that date but did file it the following day, one day late, together with a motion for extension of time in which to file a claim. Due to his illness, the hearing on the motion for an extension of time was postponed and held at a later date when the Probate Court extended the time for filing claims and the claim was again filed during that extended period. The First Methodist Church of Norwalk, a residuary legatee, appealed from the decree of the court extending the time for filing claims against the estate. Section 45-205 of the General Statutes authorizes a Probate Court to require the presentation of claims within three to twelve months from the date of the order and further provides that the court may "for cause shown" limit a further time for the presentation of claims and may "if any creditor, through no default of his own, has failed to present his claim within the time limited, for cause shown upon hearing after public notice, extend the time for such creditor to present his claim not more than thirty days beyond the period which it might have originally limited." On appeal to the Superior Court, that court concluded that the Probate Court had not abused the discretion vested in it by §45-205 of the General Statutes and dismissed the appeal. We find no error in that decision and judgment. There is no error.

MacDonald, J. This appeal is from the judgment rendered upon a verdict for the defendant in a malpractice action. The defendant, Edward J. Flynn, is a physician licensed to practice in the state of Connecticut, specializing in obstetrics and gynecology in the Norwalk area. In April of 1969, the plaintiff Patricia A. Fitzmauriee was a patient of the defendant. The issue on appeal is limited to a question concerning the qualifications for an expert witness in malpractice cases, and thus a lengthy recitation of the facts involved is not necessary. Those portions of the finding relative to the limited issue presented may be summarized as follows: On April 21, 1969, the plaintiff saw the defendant for a regular six-month checkup, at which time there appeared no evidence of a lump in the plaintiff's breast. On April 28, 1969, the plaintiff discovered a lump in her right breast and called the defendant. He examined the lump the following day and told the plaintiff he was sure the lump was nothing to worry about. He did not make an appointment for a reexamination of the lump, nor did he advise her to watch the lump. At her next scheduled checkup, in October, 1969, the plaintiff informed the defendant that the lump appeared larger and gave her discomfort. After examining the lump the defendant once again assured the plaintiff not to be concerned with it, and did not schedule a reexamination nor refer her for further testing. At the next regular checkup, on May 11, 1970, the lump was larger and the defendant referred the plaintiff to a surgeon who examined the lump and scheduled a biopsy. The biopsy was performed on May 20, 1970, the lump was found to be malignant, and a radical mastectomy was performed. The plaintiff subsequently brought an action against the defendant, charging malpractice in his diagnosis and alleging a failure to take proper and immediate steps to determine the true nature of the lump in the plaintiff's breast. During the trial of the case to the jury the plaintiff called Ira S. Gloldenberg, a physician, to testify as an expert as to the proper medical standards of practice among obstetrician-gynecologists concerning breast examinations. The plaintiff elicited the following testimony from Goldenberg to establish his qualifications to testify as an expert in this situation: He is, and has been a New Haven practicing surgeon specializing in breast cancer surgery, a professor of clinical surgery at Yale-New Haven Hospital, a member of the breast cancer task force of the National Cancer Institute, and the principal investigator of the Cooperative Breast Cancer Study Group. He teaches medical students and also other physicians, and lectures to Connecticut obstetricians and gynecologists on breast cancer problems. An important part of his practice consists of breast examinations on patients referred to him by obstetrician-gynecologists. Obstetrician-gynecologists do not do breast surgery in Connecticut and therefore they consult with surgeons on the diagnosis of breast lumps. His referrals come from all over Connecticut. The plaintiff's counsel-then asked the following question: "And from talking with obstetricians and gynecologists and from lecturing and from teaching and from the referrals that you get on breast lumps, can you tell us whether or not you are familiar wdth the proper medical standards of practice among obstetricians-gynecologists concerning breast examinations?" Counsel for the defendant objected, and the plaintiff's counsel claimed the question on the basis that it was preliminary, that it went to the question of whether the witness knows the standard of practice in question, that a physician does not have to be in the same specialty to testify concerning standards as long as he knows the standards of the specialty involved, that the general neighborhood is Connecticut, and that a physician may testify concerning standards if he practices anywhere in Connecticut. The record does not reflect the court's ruling with regard to the previous question. The plaintiff, however, then sought to ask the following questions: "Doctor, the standard for obstetricians, not your personal standard, but the standard for obstetricians and gynecologists with regard to breast examination, is there one standard in the State of Connecticut?" The defendant's counsel objected on the ground that this physician should not testify to the standards for obstetrician-gynecologists for breast examinations, anywhere, because it is out of his specialty. Out of the presence of the jury, by way of an offer of proof, the plaintiff further sought to examine Goldenberg as to the extent of his knowledge. The court, however, sustained the objection and an exception was noted. In the absence of the jury, as part of the plaintiff's offer of proof, Goldenberg then testified that he deals with obstetrician-gynecologists almost daily concerning breast lumps, and that through his contacts with referring obstetrician-gynecologists he was familiar with their standards of practice regarding problems concerning breast lumps in New Haven and also in the rest of the state. Obstetrician-gynecologists seek consultations for further definition and specific therapy, including surgery when indicated. Both the referring obstetrician-gynecologists and Goldenberg will examine the same lump, including lumps of the nature of the plaintiff's lump. They confer both before and after Goldenberg sees the patient. Goldenberg would hear the obstetrician-gynecologists' opinion and course of procedure. Goldenberg also had frequent telephone consultations with obstetrician-gynecologists without seeing the patient. He further testified that he is considered qualified by the Yale-New Haven Hospital medical center to teach obstetrician-gynecologists concerning breast lumps even though he is a surgeon, and that he knows at least as much as they do about breast lumps. Further, Goldenberg testified that in June, 1972, he was speaking to the Yale-New Haven staff of obstetrician-gynecologists about the "lumpy breast." Goldenberg specifically testified that with regard to breast lumps, he understood the distinction between his own standard of practice as a surgeon and the standard of obstetrician-gynecologists. He was able to testify as to what the obstetrician-gynecologists' standards were without imposing his own, and that he was as familiar with what their procedures were as another obstetrician-gynecologist would be. Goldenberg further testified that he was familiar with the standard of practice of obstetrician-gynecologists regarding breast lumps in the communities served by Norwalk Hospital, i.e., Norwalk, Wilton, Westport, Darien, New Canaan, and also in New Haven, New London, Hartford, New Britain, Waterbury, Stamford, Litchfield, Torrington, Dan-bury, Bridgeport, Milford, Stratford, Branford and the majority of communities in Connecticut, and that there is no difference in the standards of obstetrician-gynecologists from one town to another; the standards are the same throughout Connecticut. With regard to diagnosis in the field of breast lumps, there is an overlap and close relationship between obstetrician-gynecologists and cancer surgery, according to Goldenberg. Similarly, regarding what goes on in the examining room and diagnosis, and short of actual surgery, there also is an overlap and close relationship. The plaintiff thereupon reoffered the testimony of Goldenberg concerning the standards of practice for obstetrician-gynecologists on breast lump examinations, claiming the facts set forth above and on the same grounds set forth above, but the evidence was excluded and an exception was duly taken. Another series of questions was directed to the witness relating to diagnostic standards and conduct, but upon objection the court refused to allow answers, and exceptions were taken. By way of further offer of proof, Goldenberg testified that his medical knowledge came not only from written textbooks and his own cases, but also from discussions with other physicians and from attending lectures and conferences. He stated that breast lump examinations are performed in exactly the same manner by obstetrician-gynecologists and surgeons; and that these two specialties are identical with respect to breast lump examination and diagnosis. Following the court's exclusion of Goldenberg's testimony the plaintiff subpoenaed four obstetri cian-gynecologists who practiced in the Norwalk area, three of whom were staff members at Norwalk Hospital, none of whom was familiar with the case. The standard of care to be exercised by a physician in diagnosis and treatment, and thus the scale by which courts and juries weigh malpractice claims, is well established. "A physician is under a duty to his patient to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases." Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21; Horton v. Vickers, 142 Conn. 105, 113, 111 A.2d 675; Marchlewski v. Casella, 141 Conn. 377, 380, 106 A.2d 466; Ardoline v. Keegan, 140 Conn. 552, 556, 102 A.2d 352. Further, the necessity for expert testimony as to this standard is also well established. "Usually, proof of the breach of this duty must rest upon the testimony of an expert witness qualified to state what the particular standard of care requires and to express an opinion that the treatment accorded the patient failed to meet this standard." Snyder v. Pantaleo, supra. It appears that the court, in sustaining the defendant's objections to Goldenberg's testimony, relied in part on the theory that he was not competent to attest to the standard of medical care, in this instance in the Norwalk area, because he was from New Haven. In Geraty v. Kaufman, 115 Conn. 563, 162 A. 33, this court rejected the contention that the "general neighborhood" theory restricted a plaintiff to the use of expert testimony from the confines of the town or city in which the treatment was rendered. Modern medical practices being what they are, it is no longer true that standards of care and diagnosis will differ substantially from town to town. Tbe territorial limitation on the use of expert testimony was a test, founded in fairness and necessity, that the rural doctor should not be held to the standards of the urban doctor, since the latter had greater access to new theories and had more opportunity to refine his methods of practice. Although there may exist reason to disregard territorial limitations even with regard to state boundaries, we are not required to decide that question at the present time. We merely reaffirm our view from Qeraty that the general neighborhood is the entire state of Connecticut. The court erred in placing this restriction upon the admission of Goldenberg's testimony. The remaining basis for the court's ruling sustaining the defendant's objections was that Golden-berg was not of the same medical specialty as the defendant. This court has never specifically ruled this to be a criterion necessary for the admission of expert testimony in a malpractice case. Nor does this appear to arise from the reasoning underlying the necessity for expert testimony, that is, that in most such cases the lay person, including the members of the jury and the presiding judge, does not and can not have the requisite knowledge as to whether proper treatment was given, proper procedure was followed, or proper care was used. Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618; Marchlewski v. Casella, supra; Chubb v. Holmes, 111 Conn. 482, 486, 150 A. 516; Holden & Daly, Connecticut Evidence §119 (d). The more appropriate rule is that which we have applied to the "neighborhood" theory. "The crucial question is whether he [the expert] knows what . . . [the standards of practice] are." Ardoline v. Keegan, supra, 557. Recognizing the complexity of knowledge required in the various medical specialties, more than a casual familiarity with the specialty of the defendant physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards, and not to the standards of the witness' particular specialty if it differs from that of the defendant. It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshhold question of admissibility. Of those decisions in other jurisdictions which have discussed this issue, this appears to be the decided majority view. Kosberg v. Washington Hospital Center, Inc., 394 F.2d 947 (D.C. Cir.); Harris v. Smith, 372 F.2d 806 (8th Cir.); Baerman v. Reisinger, 363 F.2d 309 (D.C. Cir.); Frost v. Mayo Clinic, 304 F. Sup. 285 (D. Minn.); Harris v. Campbell, 2 Ariz. App. 351, 409 P.2d 67; Mirich v. Balsinger, 53 Cal. App. 2d 103, 127 P.2d 639; Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680; Lewis v. Read, 80 N.J. Super. 148, 193 A.2d 255; note, 31 A.L.R.3d 1163, and eases discussed therein. See also note, 46 A.L.R.3d 275 (dealing with cases other than malpractice in diagnosis or choice of treatment). It is obvious from the plaintiff's extensive offer of proof that G-oldenberg met more than the minimal requisites of familiarity with the standards of obstetrician-gynecologists as to the diagnosis and care of breast lumps to qualify him to render an expert opinion. It is precisely such a circumstance that reveals the distinction by title as artificial and formal, ignoring the substantive expertise of the witness. The error was material and thus prejudicial to the plaintiff's case. Donch v. Kardos, 149 Conn. 196, 202, 177 A.2d 801. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. It would appear from the plaintiff's brief that the court sustained the defendant's objection to this question. "Do you know what, the thinking is of obstetricians and gynecologists about breast lumps?" "And essentially, is there any difference in the standard in the State?" "Are you able to tell us what Norwalk area obstetricians-gynecologists do when they find an isolated breast lump?"

The plaintiffs' petition for certification for appeal from the Court of Common Pleas in Fairfield County is granted.

The plaintiff's motion for an expedited appeal from the Superior Court in New Haven County is granted to the extent that this court will hear the appeal on copies of the record, briefs and appendices, typed or photographically reproduced, subject to the subsequent filing of such documents as provided in § 723 of the Practice Book, as amended.

The motion by William W. Sprague for leave to file a brief and to argue before this court as amicus curiae in the appeal from the Superior Court in Fairfield County is granted to the extent that permission to file a brief is granted.

House, C. J. This case arose from a taking for school purposes by the defendant city of a parcel of land consisting of about sixteen acres in West Haven owned by thé plaintiff. The statement of compensation filed with the clerk of the Superior Court assessed as damages to the plaintiff for the taking the sum of $30,000. The plaintiff appealed to the Superior Court from the assessment of damages and the matter was referred to a state referee who, after a hearing, concluded that the property at the time of the taking had a fair value of $93,600 and, accordingly, rendered judgment that the defendant pay to the plaintiff the deficiency of $63,600, together with interest and appraisal and expert testimony fees. From that judgment the plaintiff took the present appeal. Although in. his assignment of errors the plaintiff has made a general attack on the finding of facts, the principal claims as briefed by the plaintiff are two: (1) that the award of $93,600 was so low as to be inequitable and an abuse of discretion and (2) that the court erred in refusing to admit the opinion testimony of expert witnesses as to the probability of zoning changes affecting the subject property, and, by so doing, failed to take into account an element which strongly affected the value of the property taken. The plaintiff's claims of error addressed to the findings of fact require but brief mention. Despite our repeated admonitions about such wholesale attacks, the plaintiff has claimed error in the court's refusal to find 103 paragraphs of his draft finding and in maláng thirteen findings which, the plaintiff asserts, were found without supporting evidence. As we have frequently stated, such attacks tend to cloud the real issue and in themselves cast doubt on the party's claims. Dick v. Dick, 167 Conn. 210, 212, 355 A.2d 110; State v. Miselis, 164 Conn. 110, 114, 318 A.2d 102. It suffices to repeat that to secure an addition to a finding of fact on the ground that it was admitted or undisputed, it is necessary for the plaintiff to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the defendant admitted that the fact in question was true or that its truth was conceded to be undisputed. Barnini v. Sun Oil Co., 161 Conn. 59, 60, 283 A.2d 217. A finding will not be corrected to add evidential or immaterial matter or facts which have no bearing on the issues on which the judgment was predicated. Charter Oak Estates, Inc. v. Kearney, 160 Conn. 522, 525, 280 A.2d 885; Collens v. New Canaan Water Co., 155 Conn. 477, 481, 234 A.2d 825. Nor will a finding be corrected by the addition of facts that will not affect the result. Lewis v. Lewis, 162 Conn. 476, 481, 294 A.2d 637. Despite the plaintiff's many assignments of error directed at the court's finding, we do not find that it is subject to correction in any respect which would aid him. The property which was taken by the defendant town consisted of about sixteen acres. The tract was irregular in shape and lay in a heavily wooded area. It was bisected by a brook with several small tributaries and some of the land near the brook and its tributaries was swampy. Practically all of the tract was burdened by extensive large outcroppings of rock, some of them rising many feet above the surrounding ground. The tract had a street frontage of 250 feet on the westerly side and ran for about 1500 feet to the east, bellying out to over 500 feet at the halfway mark of its depth. Public utilities and a municipal sewer system were available within 600 feet of the tract and the predominant use of land in the general neighborhood of the site, to the north, east and west was residential. Until March, 1967, the tract was zoned "Residence B," a zone which permitted three-family houses. On March 1,1967, the planning and zoning commission adopted new comprehensive zoning regulations for the entire city. Anticipating the acquisition of the plaintiff's tract and of adjoining properties by the city, the commission changed the zoning classification of the selected site from "Residence B" to "Open Space." At the same time, the commission classified the nearby surrounding land as "Residence 3-1," a classification which did not permit multifamily dwellings. The plaintiff called three expert witnesses to give their opinions as to the value of the tract, two of them real estate appraisers and the third a contractor-developer. One appraiser, Richard Brennan, valued the tract at $360,000 or $22,500 an acre. The other appraiser, Constantine Neri, valued it at $400,000 or $25,000 an acre. The contractor-developer valued it at $176,000 or $11,000 an acre. All three expert witnesses based their opinions on the assumption that the tract upon application by the plaintiff would have been reclassified zonally so as to permit the use of multifamily structures. On the basis of that assumption, each of the plaintiff's three experts appraised the value of the tract on what he believed to be comparable sales of similar property located in zones which permitted multifamily structures. Such a use would be the highest and best use of the tract if the zoning regulations permitted such use. As we have noted, however, the zoning regulations did not. permit multifamily dwellings on the tract at the time of the taking. The defendant produced as a witness the planning director of West Haven and administrator of the West Haven planning and zoning commission who testified that if the plaintiff's land were to be rezoned from its open space classification, it would in all reasonable probability be rezoned in accordance with the surrounding residential uses to R3-1 which was single-family residential. Two members of the planning and zoning commission also testified. One testified that he would have probably voted to change the plaintiff's property to R3-1 single-family residential zone. The other testified that he would not have voted to change the zone to a multifamily zone because the surrounding area was, to a large degree, comprised of single-family homes. The court found that in the event that the school building project on the site had been abandoned the planning and zoning commission would have reclassified the land within the site and such classification, "in all reasonable probability, would have been 'Residence 3-1' in order to conform to the classification of surrounding properties." It also found that the reasonable probability was that the tract would not have again been rezoned to permit multifamily structures if the city had not acquired the tract. Although these latter findings were attacked by the plaintiff as being found without evidence, that claim is clearly without merit. The finding of the court with respect to the reasonable probabilities for any change of zone as they existed at the time of the taking clearly distinguishes this case from that of Budney v. Ives, 156 Conn. 83, 239 A.2d 482, upon which the plaintiff relies. In the Budney ease, we held that since a prospective purchaser and seller on the open market would consider the effect of the reasonable probability of a zone change of property to be made in the reasonably near future, that probability, if it exists, may be considered in the determination of the fair value of property taken by condemnation. See note, 9 A.L.R.3d 291, 309; 27 Am. Jur. 2d, Eminent Domain, § 277; and other authorities cited in the Budney case. In that case (p. 86) the referee found that there was " 'a strong, not speculative, likelihood or probability' " of a zone change. On the appeal, we found (p. 90) that there was "abundant evidence to support the referee's conclusion" and agreed that he "could properly consider the uniquely strong probability of a change of zone as a factor affecting the value of the land at the time of the taking, and he committed no error in doing so." In the Budney case the state started condemnation proceedings on the very morning of the day on which an evening hearing was scheduled to consider a change of zone. The change would have been in accordance with the town's master plan for zoning already approved by the commission and both the town planner and the chairman of the zoning commission testified that but for the taking it was likely that the commission would have granted the application for a change in zone. The contrast between those circumstances before the referee in the Budney ease and those in the present case is obvious. The plaintiff's assignments of error addressed to the rulings on evidence involve the same basic principle. The plaintiff, through a witness, offered as exhibits two maps showing how proposed apartment complexes could fit on the subject property and, on objection, the court excluded both on the ground' that no proper foundation had been laid to make them relevant since no evidence had been offered as to the probability of a change in zone which would permit the use of the property for apartment houses. Richard Brennan,, one of the plaintiff's appraisers, testified that his appraisal was made on the assumption that the property would be zoned to permit the construction of apartment houses and that he had no opinion as to the value if there were no change in the zone. The court permitted him to testify as to the assumption on which he predicated his appraisal as relevant to the basis for his opinion of value but refused to admit his personal opinion as to what the zoning board would have done about a zone change as evidence of what the board would in fact have done. Subsequently, the plaintiff recalled Brennan as a witness and again attempted to elicit his opinion as to what action the zoning board would have taken on an application to change the zone to permit multifamily dwellings, indicating his reliance upon the decision in the Budney case. The court again excluded evidence as to the opinion of the witness on this point, adhering to its prior ruling and noting: . "Furthermore, if it was admissible, it would have so little weight in the face of what these other members of the Board have told me." The court also sustained objections to questions directed to Joseph Apter, a witness for the plaintiff, as to Ms own experiences with the zoning board in obtaining changes in zone for other properties and as to his opinion regarding the value of the property for apartment house development, again noting that "[w]e are interested in the value as of the date of condemnation." We find no error in these evidential rulings of the court. The existence of a reasonable probability of a zone change is a question of fact for the trier. Lynch v. West Hartford, 167 Conn. 67, 74, 355 A.2d 42. Also, the determination of the qualification of an expert witness is largely a matter for the discretion of the trier whose decision is not to be disturbed on appeal unless that discretion has been abused, or the error is clear and involves a misconception of the law. Nash v. Hunt, 166 Conn. 418, 425, 352 A.2d 773. The court in making its rulings indicated that it fully understood the caveat which we expressed in the Budney case (pp. 89-90) that "[w]ishful thinking, optimistic conjecture, speculation, rumor and unfounded prognostications do not furnish a proper basis for a finding that a litigant has proved the reasonable probability of a future change in zone" and "[b]ecause of the uncertainties necessarily attending the determination of the probability of the happening of such an event in the future, claims and evidence regarding the probability must be scrutinized with care and examined with caution." It expressly indicated to the plaintiff the weight which it would give to testimony from a majority of the members of the planning and zoning board and evidence to show that "in this vicinity, say across the street or to the north or to the south or to the east or to the west, applications have been made and in this vicinity changes in zone have been granted." It does not appear that any such evidence of zone changes in the vicinity was offered and the direct evidence of the city planner and members of the board clearly indicated that the probability of any change in zone to permit multifámily residences was at best remote and speculative. What we said in the concluding paragraph of our opinion in the Budney case (pp. 91-92) is fully applicable here: "The referee was not bound by the opinion of the experts, and, as the report indicates, he did not fully accept any of them. 'Ultimately, the determination of the value of the land depended on the considered judgment of the referee, taking into account the divergent opinions expressed by the witnesses and'the claims advanced by the parties. . . . There is nothing to show that in determining the value of the plaintiffs' land the referee misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was his duty to regard. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641.' Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612." See also Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262. There is no error. In this opinion the other judges concurred. We recognize that a state trial referee exercising the powers of the Superior Court or the Court of Common Pleas on matters referred to him as a state referee under the provisions of article fifth, § 6, of the constitution of Connecticut is "sui generis" and "sits as a special tribunal." Florida Hill Road Corporation v. Commissioner of Agriculture, 164 Conn. 360, 362, 321 A.2d 856. Nevertheless, in the interest of uniform terminology, in discussing appeals from judgments rendered by such referees, we have adopted the practice of referring to such a referee as the "court" in the same manner as we refer to judges of the Superior Court or the Court of Common Pleas in discussing appeals from those courts.

The defendant's petition for certification for appeal from the Appellate Division of the Court of Common Pleas is denied.

It appearing that the defendant in the above-entitled case has failed to prosecute his appeal from the Superior Court in New Haven County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed unless the defendant files his brief on or before February 3, 1975. Richard B. Cramer, for the appellant (defendant). No appearance for the appellee (plaintiff). Argued December 3 decided December 3, 1974

Per Curiam. The plaintiff brought this action seeking damages for injuries which she alleged were sustained as .a result of the negligence of the named defendant when she fell leaving the ladies' room at the office of that defendant. From the judgment rendered on a jury verdict in favor of the plaintiff, the named defendant appealed, claiming, among other assignments of error, that the trial court erred in denying its motion for judgment notwithstanding the verdict and in refusing to set aside the verdict for lack of evidence on the issue of liability, there being no proof that any negligence on its part was a proximate cause of the injuries which the plaintiff alleged. The record discloses that the elderly plaintiff failed to offer any evidence as to what caused her to fall. At the trial, she was unable to recall the circumstances of the accident and her only explanation of the fall was contained in her deposition which, over objection, was read to the jury. In response to the direct question, "What made you fall?" her reply was, "I was coming out of the bathroom, anybody can happen — so I just fell on the steps, and I fell." In the absence of any evidence which would justify the jury in finding that the defendant was negligent or, assuming they could reasonably and logically find that the defendant was'negligent, that that negligence was the proximate cause of the plaintiff's injuries, the court should have granted the defendant's motion for judgment notwithstanding the verdict. There is error and the case is remanded with direction to render judgment for the defendant.

Per Curiam. This is an appeal from the action of the planning and zoning commission of the city of Groton approving the application of the named defendant, Eugene Frattali, for a site plan approval and special permit. The trial court dismissed the plaintiffs' appeal for lack of jurisdiction because of their failure to cite the chairman or clerk of the commission in their appeal. The plaintiffs did, however, cite the commission, and the sheriff did, in fact, leave a "true and attested copy" of the appeal with its chairman, as required by statute, although not specifically directed to do so. General Statutes § 8-28 (a). All other necessary parties were properly cited and served. The legislature, when it enacted Public Acts 1988, No. 88-79, in response to our decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988), clearly expressed an intention that appeals from the decisions of planning and zoning commissions be heard and decided on their merits and not be invalidated for technical defects in service. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 487, 547 A.2d 528 (1988). With that in mind we conclude that the citation and service in this case substantially complied with § 8-28 (a) and were sufficient to ensure that the commission received adequate notice of the plaintiffs' appeal. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 151, 543 A.2d 1339 (1988). There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings. General Statutes § 8-28 (a) provides in pertinent part: "appeal from PLANNING COMMISSION TO SUPERIOR COURT. REVIEW BY APPELLATE COURT, (a) Notice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Except as provided in section 8-30, any person aggrieved by an official action or decision of a planning commission, including a decision to take no action, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of a planning commission, may appeal therefrom, within fifteen days from the date when notice of such action or decision was so published, to the superior court for the judicial district within which the municipality with such planning commission lies. In those situations where the approval of the planning commission must be inferred because of the failure of the commission to act on an application, any person aggrieved by such approval, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in such approval, may appeal therefrom within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission to the superior court for the judicial district within which the municipality with such planning commission lies. Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said commission, and by serving a true and attested copy upon the clerk of the municipality, provided service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said commission and shall not thereby make such clerk a necessary party to such appeal. The commission shall return either the original papers acted upon by it and constituting the record of the case appealed from or certified copies thereof. There shall be no right to further review except upon certification for review to the appellate court in the manner provided in section 8-8. . . ."

Bogdanski, J. This is an appeal from an order suspending the plaintiff's repairer's license and wrecker registrations and plates for a period of three days. Those suspensions were ordered pursu ant to § 14-64 and 14-66 (a) of the General Statutes following a motor vehicle department hearing. The defendant commissioner concluded that the plaintiff had violated § 14-51 of the General Statutes and § 14-63-4 (e) of the regulations of the motor vehicle department by failing to employ a qualified mechanic to make repairs. The plaintiff appealed to the Court of Common Pleas which dismissed the appeal. From the judgment rendered thereon, the plaintiff has appealed to this court. The plaintiff has assigned error in the court's conclusion that the evidence before the commissioner reasonably supported his determination that the plaintiff violated § 14-51 of the General Statutes. That section in part reads: "A 'repairer' includes any qualified person, having a suitable place of business and having adequate equipment, engaged in repairing, overhauling, adjusting, assembling or disassembling any motor vehicle." (Emphasis added.) Section 14-63-4 of the regulations in part reads: "The following minimum requirements for qualification as a repairer are established: . . . (e) Personnel and equipment: (1) The applicant shall be a qualified mechanic or have at least one in his employ who has a thorough knowledge of the services to be rendered(Emphasis added.) Regs., Conn. State Agencies § 14-63-4. In making his determination the commissioner had the following evidence before him: The plaintiff towed the complainant Martin's disabled motor vehicle to its service station and informed him that his car had a blown head gasket. He was told that the vehicle could be repaired by the next day, Wednesday, for a charge of between sixty and sixty-five dollars. The car was not repaired on Wednes day. The following Friday, Martin was informed that his ear was ready, bnt he found that it would not run properly. He was then told it would be ready by the next day. On Saturday, Martin found his car to be in the same condition it had been in on the previous day. He was able, however, to drive it away, but not before paying the plaintiff's bill of $195.15. The person who did most of the repair work on the car testified that he was employed by the plaintiff as a mechanic; that he had removed the head of the motor, taken it apart and reassembled it; and that his experience was limited to the repair of transmissions. Because the vehicle could "hardly move," Martin took it to an experienced repairer who found, upon inspection, that wires were lying over the manifold; that the engine raced at 1500 revolutions per minute; that the valve covers were put on in reverse; that the spark plug wiring was routed incorrectly; that the valve cover gaskets were not replaced; that the alternator was mounted incorrectly; that the intake manifold bolts were only hand tight; and that none of the gaskets was sealed properly in the intake system. The car was subsequently put in operable condition at an additional expense of $70.86. After Martin lodged a complaint with the defendant commissioner, the plaintiff agreed to refund $100 to Martin. If the decision of the commissioner is reasonably supported by the evidence, it must be sustained. Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 17, 327 A.2d 569. The credibility of witnesses and the determination of factual issues' are matters within the province of the administrative agency. Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 49, 327 A.2d 588. Since the evidence printed in the appendix amply supports the trial court's conclusion, it cannot be disturbed. The suspension of the plaintiff's repairer's license was proper and authorized under § 14-64 of the General Statutes. That section empowers the commissioner to suspend a repairer's license when, after notice and hearing, it is determined that the repairer has violated any provision of § 14-51 to 14-65a of the General Statutes. The commissioner also suspended the plaintiff's wrecker registrations and plates as a consequence of the suspension of its repairer's license. Section 14-66 (a) of the General Statutes provides that a person, firm or corporation engaged in the business of operating a wrecker for the purpose of towing or transporting for compensation disabled motor vehicles must be a licensed dealer or repairer. Since the plaintiff could not be a licensed repairer during the period of suspension, it could not, by law, engage in the wrecker business at the same time. The plaintiff claims that § 14-66 (a) violates the due process and equal protection guarantees of the United States constitution and the constitution of Connecticut insofar as it permits only licensed repairers and dealers to operate wreckers on the highways of this state. U.S. Const. amend. XIV § 1; Conn. Const. art. I § 1, 8. Lawful businesses affecting the public health, safety and welfare may be regulated under the police power of the state. Hartland v. Jensen's, Inc., 146 Conn. 697, 701, 155 A.2d 754; Amsel v. Brooks, 141 Conn. 288, 293, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S. Ct. 125, 99 L. Ed. 693. In exercising that police power the legislature has a broad discretion, both in determining what the public welfare requires, and in fashioning legislation to meet that need. Mott's Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 487, 172 A.2d 381; Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21. The court's function in examining the constitutionality of police legislation regulating the conduct of a business is to decide whether the enactment serves some need of the public health, safety, convenience and welfare in a reasonable and impartial way. Mott's Super Markets, Inc. v. Frassinelli, supra; Leach v. Florkosky, 145 Conn. 490, 495, 144 A.2d 334; United Interchange, Inc. v. Spellacy, 144 Conn. 647, 654, 136 A.2d 801. The legislation and the prohibition imposed must have some rational relationship to the preservation and promotion of the public welfare. Amsel v. Brooks, supra, 295. If it meets this test, it satisfies the constitutional requirements- of due process and equal protection of the laws. Pierce v. Albanese, supra. A reading of § 14-66 in its entirety leaves no doubt that it was designed to serve the safety and welfare of the motoring public on the highways of this state. See note, 42 A.L.R.2d 1208, and cases cited therein. The requirement that those permitted to tow disabled motor vehicles for compensation be licensed motor vehicle repairers is not on its face unreasonable. As the facts of this very case demonstrate, that requirement does have a rational relationship to the preservation and promotion of the public welfare. There is no error. In this opinion the other judges concurred.

The defendant's motion to expedite the appeal from the Superior Court in New Haven County is denied.

Shea, J. The issue in this case is whether a mortgage debt as described in General Statutes § 12-350 (h) that is discharged from tax exempt insurance proceeds under General Statutes § 12-342, "reduces the gross taxable estate" for purposes of computing the state succession tax. We agree with the trial court that such a debt reduces the gross taxable estate under § 12-350, and accordingly, we find no error in the judgment. The parties have stipulated to the relevant facts in this case. Robert L. Jacks (the decedent) owned real estate in Middlebury, having an appraised value of $330,000, subject to a mortgage to Connecticut Bank and Trust Company (CBT) in the amount of $150,000. To ensure payment of the outstanding indebtedness, the decedent elected to participate in a group credit life insurance plan between CBT as policyholder and Aetna Life Insurance Company (Aetna). The policy provided that if the decedent were still indebted to CBT at the time of his death, and if his premium payments were current, Aetna would pay the balance due on the CBT mortgage once it had received proof of the decedent's death. The decedent died on December 31,1983. On February 8, 1984, following the receipt of proof of the decedent's death, Aetna paid CBT $150,000 and thereby discharged the mortgage debt on the Middle-bury property. On the decedent's succession tax return, the defendant, Elizabeth H. Jacks, executrix of the decedent's estate, reduced the value of the decedent's interest in the Middlebury property by $150,000, the balance due on the CBT mortgage at the time of his death. The plaintiff, the commissioner of revenue services, disallowed the deduction and claimed as taxable the entire $330,000 value of the Middlebury property. The Probate Court, Lawlor, J., sustained the objection of the estate and ordered the commissioner to recompute the succession tax by allowing the estate a deduction for the mortgage debt to CBT. The trial court, Hart-mere, J., dismissed the commissioner's appeal, holding that the debt was deductible for succession tax purposes, regardless of the source of payment. This appeal followed. The computation of the Connecticut succession tax is based upon the net taxable estate. General Statutes § 12-344. The value of the net taxable estate is arrived at by subtracting from the gross taxable estate the debts, charges, taxes and other expenses that are enumerated in General Statutes § 12-350. See Connelly v. Wells, 142 Conn. 529, 533, 115 A.2d 444 (1955). One of these items is "the amount at the date of the transferor's death of all unpaid mortgages upon real or personal property situated within this state . . . . " General Statutes § 12-350 (h). Section 12-350 provides further that such a deduction is allowable only if the debt "reduce[s] the gross taxable estate." The commissioner claims that in order for a debt to "reduce the gross taxable estate" under § 12-350, it must be extinguished with taxable assets. General Statutes § 12-342, on the other hand, exempts from taxation, inter alia, the proceeds of any life insurance policy payable to a named beneficiary. In this case, therefore, the debt which was the basis for a deduction was discharged by the tax exempt proceeds of a credit life insurance policy. Thus, the taxable assets of the estate were not ultimately used to discharge the debt. The estate claims that if the deduction for the mortgage indebtedness is not allowed, then the full value of the Middlebury property would be taxed, including that portion of the property's value corresponding to the proceeds of the insurance policy. This result, the estate maintains, would constitute an indirect tax of otherwise tax exempt insurance proceeds. Section 12-342, therefore, when read in conjunction with § 12-350, creates an ambiguity in the phrase "reduce the gross taxable estate," because of the poten tial conflict between the taxation policies underlying these two statutory provisions. This apparent conflict cannot be resolved, however, by scrutinizing only the "plain language" of the statutes, because each provision has a direct relationship to the case at hand. Accordingly, we turn to the legislative history of these provisions to resolve the conflict between them, guided by the principle of statutory construction that statutes in apparent conflict should be construed so as to achieve harmony between them. State v. Tyson, 195 Conn. 326, 331, 487 A.2d 1091 (1985). We are further guided by the principle that ambiguities in taxing statutes are to be resolved or construed in favor of the taxpayer. National Amusements, Inc. v. Brown, 171 Conn. 172, 176, 368 A.2d 1 (1976). We turn first to the legislative history of what is now § 12-342. See Dubno v. Colby, 38 Conn. Sup. 54, 62, 458 A.2d 396 (1982). In 1929, the proceeds of life insurance policies payable at the death of the insured "to his estate, the executors of his will or the administrators of his estate" were first made explicitly subject to the succession tax by the legislature. Public Acts 1929, c. 299, § 4. In 1933, the legislature exempted "the proceeds of any policy of life or accident insurance payable to a named beneficiary," while continuing to tax proceeds payable to an estate, its executors or administrators. General Statutes (Cum. Sup. 1933) § 487c. There is no indication, however, due to the absence of a public hearing or other transcribed proceedings relating to this legislation, why the legislature drew a distinction for succession tax purposes based upon the identity of the recipient of the proceeds of a policy. The legislature broadened the exemption in 1963 to include "such proceeds payable to a trustee or trustees under an inter vivos or testamentary trust . . . . " Public Acts 1963, No. 514. The legislature did not disturb the clause that imposed the tax on the proceeds payable to a decedent's estate. In 1969, however, the legislature again broadened the scope of the succession tax exemption to include "proceeds of any insurance policy of a decedent payable at his death to his estate, the executors of his will or the administrators of his estate." Public Acts, Spec. Sess., July, 1969, No. 784, § 1. This change is especially significant, because the legislature emphasized its purpose of achieving uniform treatment for all life insurance proceeds, regardless of the identity of the beneficiary. It is with this legislative purpose in mind that we review the relevant history of § 12-350. The starting point for our analysis of § 12-350 is this court's holding in Connelly v. Wells, supra, in which we construed General Statutes (Cum. Sup. 1953) § 923c (a), a predecessor of § 12-350. In Connelly, the tax commissioner maintained that the decedent's estate was not entitled to deduct from the gross taxable estate the amount representing the balance due on a note of the decedent, when the note was secured by an assignment of the decedent's life insurance policies, which were payable on his death to his wife. We observed in that case that at the time of the decedent's death, the estate became primarily liable for repayment of the loan, and that the bank continued to have a claim against the estate before proceeding to liquidate the debt through the collateral it still held. We stated: "If the collateral securing the debt for which a deduction is claimed by the defendant is owned by the decedent, it would be included in the items going to make up his gross taxable estate. But if for any reason it is not owned by him and, hence, is not so included, the deductibility of the debt in ascertaining the net taxable estate is not affected, since the debt, no matter how secured, is nonetheless a debt and, as such, falls squarely within the provisions of § 923c (a)." Id., 534. Thus, we rejected the tax commissioner's claim that payment of the debt must be traceable to taxable assets, even though the identity of the insurance beneficiary was still relevant for taxation purposes. We further disagreed with the commissioner's claim that the deduction was improper because " 'the gross taxable estate was not reduced by one cent to satisfy [the] indebtedness to the bank.' " Id. In 1969, the legislature amended the statute relating to deductions from the gross taxable estate, and inserted the provision that the enumerated deductions would be allowed, "provided they reduce the gross taxable estate." Public Acts 1969, No. 524. The commissioner claims that this provision was not a technical amendment, but rather, that its purpose was to "counteract the effect of the Connelly decision," by requiring that a debt be paid from taxable assets.We disagree. There is no indication in the legislative history that the General Assembly contemplated adding a new requirement that a debt must be paid from taxable assets to be properly deductible under § 12-350. Rather, the legislative history of No. 524 of the 1969 Public Acts indicates that the phrase "reduce the gross taxable estate" was enacted specifically to clarify confusion over the availability of a deduction for a widow's allowance payable out of income, rather than from principal. Representative Richard L. Brinckerhoff s remarks on this point are compelling: "The purpose for the addition of the words in line 7, [']provided they reduce the gross taxable estate['] is due to the fact that in certain instances a widow's allowance, or a family's allowance has been awarded by a probate court but the court has required that it be taken from income rather than from principal and in those cases, of course, an income deduction would not be an allowáble deduction for succession tax purposes. . . . [T]he only substantive change . . . would be to allow that one additional deduction from state succession tax, at the time of the death of the settlor in a trust." 13 H.R. Proc., Pt. 8,1969 Sess., pp. 3745-46. The legislative history does not reveal that with respect to § 12-350 (h), the provision "reduce the gross taxable estate" was intended to add another requirement for the availability of a deduction. Indeed, the legislature made it clear that the purpose of the bill was to add to the number of deductions that would be allowable for state succession tax purposes, rather than to restrict that category. See 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3744. The commissioner claims that the mortgage debt did not "reduce the gross taxable estate" because it was not discharged with taxable assets. We disagree with the commissioner's interpretation of this provision, however, because it focuses on a time frame other than that which is specified in § 12-350. When the decedent died, liability for payment of the debt passed to his estate, for which CBT retained a bona fide claim against the estate. See Connelly v. Wells, supra, 534. Thereafter, if Aetna had not paid CBT the amount for which the decedent was insured, the estate's taxable assets would have been liable for payment of the indebtedness. Further, if the estate had discharged the mortgage debt immediately after the decedent's death, before Aetna had paid CBT, the estate would have been subrogated to CBT's right to receive the proceeds of the Aetna policy. 1 J. Appleman, Insurance Law and Practice § 62.35. Accordingly, because the estate's taxable property was liable and available for payment of the debt, the mortgage indebtedness reduced the gross taxable estate at the time of the decedent's death. The fact that the debt was later discharged with tax exempt assets does not change the result, because § 12-350 focuses on the date of the decedent's death as the relevant time frame, rather than some date after the decedent's death. See Newell v. McLaughlin, 126 Conn. 138, 143, 9 A.2d 815 (1939). The commissioner maintains that the debt should be treated as having been extinguished at the death of the decedent, because "everyone knew Aetna would pay it off." We will not base our decision, however, on the fortuity of the decedent's having transacted for credit life insurance with a company capable of fulfilling its obligation, rather than one less financially sound. Finally, the commissioner's interpretation of § 12-350 would seriously undermine the legislature's goal of uniformly exempting from state taxation all life insurance proceeds, regardless of the purpose for which the policy was purchased. As in this case, his interpretation would result in an indirect tax on otherwise tax exempt insurance proceeds, when the proceeds were used to discharge a debt that was the basis for a deduction under § 12-350. The commissioner has not given this court any persuasive reason why life insurance proceeds should be treated differently in such a situation. We conclude, therefore, that the purpose of the 1969 revision of § 12-350 was "to clarify and make certain the law, not to bring within the scope of the statutes transfers which otherwise would not have been taxable." Cochran v. McLaughlin, 129 Conn. 176, 185, 27 A.2d 120 (1942). There is no error. In this opinion the other justices concurred. General Statutes § 12-350 provides in part: "In the case of the estate of a resident transferor, the net estate for the purposes of the tax imposed by the provisions of this chapter shall be ascertained by deducting from the gross taxable estate the following items . . . (h) the amount at the date of the transferor's death of all unpaid mortgages upon real or personal property situated within this state, which mortgages were not deducted in the appraisal of the property mortgaged . The foregoing deductions shall be allowed in the case of property transferred by will and by laws relating to intestate estates, provided they reduce the gross taxable estate. . . ." General Statutes § 12-342 provides: "The provisions of sections 12-341 and 12-341b shall not apply to the proceeds of any policy of life or accident insurance payable to a named beneficiary or beneficiaries, including such proceeds payable to a trustee or trustees under an inter vivos or testamentary trust or the proceeds of any insurance policy of a decedent payable at his death to his estate, the executors of his will or the administrators of his estate. The proceeds of any insurance policy issued by the United States and generally known as war risk insurance, United States government life insurance or national service life insurance shall not be taxable within the provisions of this chapter." At oral argument, the commissioner acknowledged that credit life insurance is customarily payable to a named beneficiary. He claimed, nonetheless, that the broad tax exemption found in General Statutes § 12-342 does not apply to the insurance policy in the case at hand, because credit life insurance is purchased for a different purpose from ordinary life insurance. By the very terms of the statute, however, § 12-342 applies to the policy in this case. Section 12-342 contains no limitation or distinction based upon the purpose for which the insurance was purchased. Senator John F. Pickett, Jr., for example, stated: "[A]t the present time under the succession laws of the State of Connecticut, the proceeds of an insurance policy payable to a named beneficiary are not subject to the succession taxes. However, for some strange reason, the proceeds of the policy payable to the estate are subject to the succession taxes. We think it makes good sense to be uniform about this and according to the intent of this bill, is to remove the succession tax implication or imposition on life insurance proceeds payable to the estate of a decedent." 13 S. Proc., Pt. 7,1969 Sess., pp. 3095-96. After Governor John Dempsey vetoed No. 784 of the 1969 Public Acts, the legislature overrode the veto, the records of its deliberations again indicating its desire to achieve uniformity in the treatment of insurance proceeds for purposes of the succession tax. 13 S. Proc., Pt. 8,1969 Spec. Sess., p. 263; see Dubno v. Colby, 38 Conn. Sup. 54, 62, 458 A.2d 396 (1982). "The possibility of insurer failure, however, is neither minimal nor remote. At the end of 1984, the National Association of Insurance Commissioners rated more than one in five insurance companies in the United States as being in questionable health and requiring careful monitoring. See Donne, Guarantees of Safety for the Insurance Industry, N.Y. Times, Aug. 10, 1985, at 23, col 1." B. McDowell, "Competition as a Regulatory Mechanism in Insurance," 19 Conn. L. Rev. 287, 306 n.83 (1987).

The defendants' motion for judgment pursuant to § 696 of the Practice Book, as amended, in the appeal from the Court of Common Pleas in Hartford County is granted.

The plaintiff's petition for certification for appeal from the Appellate Court is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 16 Conn. App. 486, is denied.

The petition for certification by the named defendant for appeal from the Court of Common Pleas in Middlesex County is granted.

The defendant's petition for certification for appeal from the Appellate Court, 16 Conn. App. 245, is granted, limited to the following issue: "Did the Appellate Court err in affirming the defendant's conviction and holding that the wiretap panel's failure to make a written determination of probable cause, pursuant to General Statutes § 54-41d (7) and 51-41e, that a special need existed to intercept wire communications over a public telephone was not reversible error?" William G. Dow III, in support of the petition. Harry Weller, deputy assistant state's attorney, in opposition. Decided January 12, 1989

The application from the Court of Common Pleas in Fairfield County at Stamford of the Connecticut State Golf Association for leave to file a brief and to argue before this court as amicus curiae is granted to the extent that leave is granted to file a brief on the issue of whether land used as a golf course, not open to the general public or residents at large of the town in which it is located, may qualify for "open space" classification and therefore tax relief under the provisions of the General Statutes affording tax relief to areas of open space land.

The plaintiffs' petition for certification for appeal from the Court of Common Pleas in New Haven County is denied. The defendant's motion to dismiss the "appeal" from the Court of Common Pleas in New Haven County is granted.

The motion by John W. Kline to withdraw his appearance on behalf of the defendant in the appeal from the Superior Court in New Haven County is granted.

The plaintiff's petition for certification for appeal from the Appellate Court, 17 Conn. App. 70, is denied.

The defendants' petition for certification for appeal from the Appellate Division of the Court of Common Pleas is denied.

Shea, J. After a jury trial the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70. In this appeal he claims error in (1) the denial of his motion for a judgment of acquittal for insufficiency of the evidence on the element of lack of consent, (2) the application of a statute, § 53a-70, claimed to be unconstitutionally vague, to the facts of this case, (3) the instructions to the jury, as well as the argument of the prosecutor, concerning certain evidence of consciousness of guilt, and (4) the Charge upon reasonable doubt. We find no error. Upon the evidence presented the jury could reasonably have found the following facts. On March 18,1987, the victim, T, a twenty-six year old woman, and her girlfriend, A, a visitor from Idaho, went to a bar in West Haven. T was introduced by a friend to the defendant, who bought her a drink. The defendant invited her and A, together with a male acquaintance A had met at the bar, to dinner at a restaurant across the street. After dinner, the defendant having paid for T's share, the four left the restaurant. The defendant proposed that they all go to his apartment in West Haven. Because A's acquaintance had a motorcycle, the defendant gave them directions to the apartment so that they could ride there, while he and T walked. After a twenty minute walk, the defendant and T arrived at the apartment at about 10 p.m. A and her acquaintance were not there and never arrived at the apartment. When T and the defendant had entered the apartment they sat on the couch in the living room to watch television. After a while the defendant put his arm around T and told her he wanted a kiss. She gave him a kiss. She testified that "He wouldn't back off. He wouldn't let go of me. So I said, look, I am not kidding. I really don't Want to do anything. I don't know you and whatnot." The defendant still held onto T. She testified that he was "still right in my face wanting to kiss me. You know, saying so, saying that you don't think I paid for dinner for nothing, do you." T testified that she was scared: "At first I didn't know what to do. I did spit in his face and he didn't even take it seriously. Then I tried kicking him off, which was to no avail. He was way too big for me." T described the defendant as "at least six foot two" and "at least two hundred pounds." She testified: "He told me he could make it hard on me or I could make it easy on myself, which I finally decided was probably my best bet." T understood that the defendant was determined to "have sex" with her and that either he would hurt her or she "was going to go along with it." At the point where T ceased resistance, she was "down on the couch" and the defendant was "on top of" her. T testified that she had informed the defendant that she had to pick up her daughter, had insulted him, and had told him that he was "a big man to have to force a woman." She testified, however, that after she decided to "give in," she tried to convince the defendant that she was not going to fight and "was going to go along with him and enjoy it." The defendant removed T's clothing as she remained on the couch and led her into the bedroom. When she declined his request for oral sex, he did not insist upon it, but proceeded to engage in vaginal intercourse with her. After completion of the act, the defendant said that he knew the victim felt that she had been raped, but that she could not prove it and had really enjoyed herself. After they both had dressed, the defendant requested T's telephone number, but she gave him a number she concocted as a pretense. He also offered her some sherbet, which she accepted and ate while she waited for a cab that the defendant had called. T, however, placed her pink cigarette lighter underneath the couch, so that she would be able to prove she had been in the apartment. When the cab arrived, she left the apartment. She told the cab driver to take her to the police station because she had been raped. At the station she gave her account of the event to the police. The defendant was arrested. The police found T's lighter under the couch in his living room, where T had informed them it was located. I Although the defendant claims insufficiency of the evidence as the basis for his claim that he was entitled to an acquittal, he actually seeks to have this court impose a requirement of mens rea, or guilty intent, as an essential element of the crime of sexual assault in the first degree. In fact, he concedes in his reply brief that, if conviction for sexual assault in the first degree requires only a general intent, he cannot prevail on his claim that the evidence was insufficient to support his conviction. This court has held that our statute, § 53a-70, requires proof of only a general intent to perform the physical acts that constitute that crime. State v. Carter, 189 Conn. 611, 625, 458 A.2d 369 (1983). "No specific intent is made an element of the crime of first degree sexual assault . . . . " "It is well settled that first degree sexual assault is a general intent crime." State v. Rothenberg, 195 Conn. 253, 258 n.4, 487 A.2d 545 (1985); State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). The defendant, nevertheless, urges that we adopt a construction of § 53a-70 making the mental state of the defendant the touchstone for the resolution of the issue of consent when presented in a prosecution for first degree sexual assault. He refers to this mental state as a mens rea, a guilty mind, and describes it as an awareness on the part of a man that he is forcing sex upon a woman against her will and that he intends to do so. In the context of the evidence in this case, the defendant claims, though he did not testify at trial, that he honestly believed that at the time the sexual act occurred that T had consented to it. He bases this claim upon her testimony that, after their preliminary encounter on the couch, and his remark that he could "make it hard" for her or she could "make it easy" on herself, she ceased resisting his advances and decided to "go along with it." T also testified that, once she decided to "give in," she acted as if she were "going to go along with him and enjoy it." The position advocated by the defendant that the requisite mens rea should be an element of the crime of sexual assault in the first degree is supported by a widely publicized decision of the British House of Lords in 1975, Director of Public Prosecutions v. Morgan, 1976 App. Cas. 182, 205, 2 W.L.R. 913, 2 All E. R. 347 (H.L. 1975). A majority of the court held that a defendant cannot properly be convicted of rape if he in fact believed that the woman had consented, even though the basis for his belief may not have been reasonable. Lord Hailsham expressed the view that, for the crime of rape at common law, "the prohibited act is and always has been intercourse without the consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention to have intercourse willy-nilly, not caring whether the victim consents or no." Id., 215. A similar position has been adopted in Alaska, where it is held that the state has the burden of proving at least "that the defendant acted 'recklessly' regarding his putative victim's lack of consent." Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983). The Supreme Court of California has concluded that a wrongful intent is an element of a rape offense, but, contrary to Morgan, has held that this element would be negated if a defendant entertained a "reasonable and bona fide belief' that the complainant had consented. (Emphasis added.) People v. Mayberry, 15 Cal. 3d 143, 145, 125 Cal. Rptr. 745, 542 P.2d 1337 (1975). A recent commentary on the subject of rape also has suggested that the focus of the inquiry regarding consent in such cases should be upon the mens rea of the defendant rather than upon the attitude of the victim. S. Estrich, "Rape," 95 Yale L.J. 1087, 1094-1132 (1986). Most courts have rejected the proposition that a specific intention to have intercourse without the consent of the victim is an element of the crime of rape or sexual assault. See, e.g., State v. Reed, 479 A.2d 1291, 1296 (Me. 1984); Commonwealth v. Grant, 391 Mass. 645, 650, 464 N.E.2d 33 (1984); Commonwealth v. Lefkowitz, 20 Mass. App. 513, 521, 481 N.E.2d 227, review denied, 396 Mass. 1103, 485 N.E.2d 188 (1985); Commonwealth v. Williams, 294 Pa. Super. 93, 99-100, 439 A.2d 765 (1982); State v. Houghton, 272 N.W.2d 788, 791 (S.D. 1978). This court has implicitly discountenanced such a claim. State v. Rothenberg, supra; State v. Carter, supra. One of the complications that might arise, if such a mental element were required, involves the problem of intoxication, which is generally held to be relevant to negate a crime of specific intent but not a crime of general intent. State v. Carter, supra, 625; State v. Bitting, 162 Conn. 1, 7, 291 A.2d 240 (1971). The difficulty of convicting a thoroughly intoxicated person of rape, if awareness of lack of consent were an element of the crime, would diminish the protection that our statutes presently afford to potential victims from lustful drunkards. Another related problem would be the admissibility of evidence of other similar behavior of a defendant charged with rape to prove his intent to disregard any lack of consent. Such evidence is now usually excluded as more prejudicial than probative, because only a general intent is necessary to constitute the offense. See State v. Houghton, supra, 791. Although the Supreme Judicial Court of Massachusetts has rejected the contention that a specific intent to have nonconsensual intercourse is an essential element of the crime of rape that the state must prove, it has expressly left open the question "[wjhether a reasonable good faith mistake of fact as to the fact of consent is a defense to the crime . . . Commonwealth v. Grant, 391 Mass. 645, 651, 464 N.E.2d 33 (1984); Commonwealth v. Sherry, 386 Mass. 682, 697, 437 N.E.2d 224 (1982). The California Supreme Court, in holding that a wrongful intent is an element of the crime of rape in People v. Mayberry, supra, construed the California penal code to embody the principle that a mistake of fact based upon a reasonable and good faith belief as to consent negates the existence of the requisite wrongful intent. A corresponding provision of our own penal code, General Statutes § 53a-6 (a), allows the defense that a person has engaged in conduct otherwise criminal under a mistaken belief of fact where "[s]uch factual mistake negates the mental state required for the commission of an offense." This statute, however, applies only to specific intent crimes. Unless we should conclude, contrary to our precedent, that the mental state required of the actor for sexual assault in the first degree includes an awareness of lack of consent, even a reasonably founded, but nonetheless mistaken, belief as to that fact would not be available as a defense under § 53a-6 (a). Our first degree sexual assault statute, § 53a-70, applies to a person who "compels another person to engage in sexual intercourse by the use of force . . . or by the threat of use of force which . . . reasonably causes such person to fear physical injury . . . . " Although the consent of the complainant is not expressly made a defense to such a crime, it is abundantly clear that the draftsmen of our penal code endorsed the principle that "non-commercial sexual activity in private, whether heterosexual or homosexual, between consenting, competent adults, not involving corruption of the young by older persons, is no business of the criminal law." Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969) p. 38. A finding that a complainant had consented would implicitly negate a claim that the actor had compelled the complainant by force or threat to engage in sexual intercourse. Consent is not made an affirmative defense under our sex offense statutes, so, as in the case of the defense of alibi, the burden is upon the state to prove lack of consent beyond a reasonable doubt whenever the issue is raised. While the word "consent" is commonly regarded as referring to the state of mind of the complainant in a sexual assault case, it cannot be viewed as a wholly subjective concept. Although the actual state of mind of the actor in a criminal case may in many instances be the issue upon which culpability depends, a defendant is not chargeable with knowledge of the internal workings of the minds of others except to the extent that he should reasonably have gained such knowledge from his observations of their conduct. The law of contract has come to recognize that a true "meeting of the minds" is no longer essential to the formation of a contract and that rights and obligations may arise from acts of the parties, usually their words, upon which a reasonable person would rely. E. Farnsworth, Contracts § 3.6. Similarly, whether a complainant has consented to intercourse depends upon her manifestations of such consent as reasonably construed. If the conduct of the complainant under all the circumstances should reasonably be viewed as indicating consent to the act of intercourse, a defendant should not be found guilty because of some undisclosed mental reservation on the part of the complainant. Reasonable conduct ought not to be deemed criminal. It is likely that juries in considering the defense of consent in sexual assault cases, though visualizing the issue in terms of actual consent by the complainant, have reached their verdicts on the basis of inferences that a reasonable person would draw from the conduct of the complainant and the defendant under the surrounding circumstances. It is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent, even though there had been some concealed reluctance on her part. If a defendant were concerned about such a possibility, however, he would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented. Thus we adhere to the view expressed in our earlier decisions that no specific intent, but only a general intent to perform the physical acts constituting the crime, is necessary for the crime of first degree sexual assault. We reject the position of the British courts, as well as that adopted in Alaska, that the state must prove either an actual awareness on the part of the defendant that the complainant had not consented or a reckless disregard of her nonconsenting status. We agree, however, with the California courts that a defendant is entitled to a jury instruction that a defendant may not be convicted of this crime if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented. We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact, § 53a-6 (a), which is applicable only to specific intent crimes, but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances. The defendant in this case made no request to charge upon the issue of the mental state required for the crime of sexual assault in the first degree or upon the issue of consent, nor did he except in these respects to the charge as given. On appeal his claim that a realization by a defendant of the absence of consent, or its recklessness equivalent, should be an element of the crime, as courts in Great Britain and Alaska have held, is necessarily limited to the sufficiency of the evidence to establish either an actual awareness that T had not consented or a reckless disregard of her manifestations of nonconsent. Since we have rejected the subjective standard for determining the issue of consent, however, the question for us is whether the evidence is sufficient to prove that a reasonable person would not have believed that T's conduct under all the circumstances indicated her consent. From our review of the evidence detailed previously, it is clear that the jury could properly have found beyond a reasonable doubt that T's words and actions could not reasonably be viewed to indicate her consent to intercourse with the defendant. According to her uncontradicted testimony, she expressly declined his advances, explaining that she did not know him and wanted to pick up her child. She spat in his face and "tried kicking him off." She "gave in" only after the defendant declared that "he could make it hard" for her if she continued to resist. This statement she could reasonably have regarded as a threat of physical injury. General Statutes § 53a-70. Only by entertaining the fantasy that "no" meant "yes," and that a display of distaste meant affection, could the defendant have believed that T's behavior toward him indicated consent. Such a distorted view of her conduct would not have been reasonable. The evidence was more than sufficient to support the verdict. II The defendant's second claim, that § 53a-70, our first degree sexual assault statute, is unconstitutionally vague, is closely related to the first. He contends that, unless the statute is construed to require proof of a guilty mind, "every act of sexual intercourse can be punishable as a class B felony regardless of the mind set of the accused, because all that would be required to establish guilt is the act of sexual intercourse coupled with the statement of the victim that she felt threatened." He suggests that the reasonableness of the complainant's fear of physical injury generated by the threat "could readily be established simply by the differences in size between the man and the woman or the strangeness to the victim of the place she had gone to." The horrendous scenario postulated by the defendant that a sexual assault conviction may be based wholly upon a statement by the complainant of feeling threatened because of the greater size of the person accused, combined with the strangeness of the surroundings, is contrary to the conclusion we have reached in Part I. There we held that the crux of the inquiry on the issue of consent was not the subjective state of mind of the complainant but rather her manifestations of lack of consent by words or conduct as reasonably construed. Further, since § 53a-70 requires that one compel another person to engage in sexual intercourse "by the use of force . . . or by the threat of use of force . . . which reasonably causes such person to fear physical injury," it is clear that a defendant must either use force or threaten its use by words or conduct that would reasonably generate fear of physical injury. "[A] penal statute must be sufficiently definite to enable a person to know what conduct he must avoid." State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). When first amendment freedoms are not involved, a claim that a statute is void for vagueness is determined by its applicability to the particular facts presented. Id., 57. "Hence, that a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue." Id., 58. The hypothetical put forth by the defendant of the wholly passive sexual assault victim intimidated solely by the size of the accused and the unfamiliarity of her surroundings, rather than by the use of force or threats, is far removed from the facts that the jury could reasonably have found in support of the verdict in this case. We conclude that the defendant's claim that § 53a-70 is void for vagueness is without merit in the context of the circumstances of this case. Ill The defendant claims next that the charge to the jury on consciousness of guilt, as well as the prosecutor's conduct during trial and remarks during closing argument, violated the defendant's constitutional right to remain silent. The background of this claim is that, after the defendant had been arrested and had received the standard Miranda warnings, he gave a written statement to the police in which he admitted that, after meeting T and having dinner with her and another couple, T accompanied him to his apartment, where the other couple also had agreed to come, although they never arrived. At the apartment, he watched a movie and T had some ice cream. He called a cab for her and she left about midnight. The statement did not mention any sexual activity between T and the defendant. At the trial, however, the police officer who had taken the statement testified that the defendant had denied "any sexual intercourse of any type" with T. During argument to the jury the state's attorney argued that the omission from the defendant's statement of any reference to having had sexual intercourse with T was an indication of his "consciousness of guilt," because innocent persons would have told the police the truth "when asked what the heck happened when they are accused of a crime." No objection to this argument was raised at trial, but the defendant's counsel responded that, even assuming that the defendant had actually denied having intercourse with T, as the officer had testified despite the omission of such a significant fact from the written statement, the defendant's failure to be completely candid with the police probably stemmed from his concern about his relationship with a woman with whom he had been living at the time, but who had been away from the apartment on the night T had been there. The trial court charged the jury, in reference to the state's claim that the defendant had given a false statement to the police on whether sexual intercourse had occurred, that "from any statements made by the accused subsequent to the alleged criminal act, which are proved to you to be false, you may fairly infer guilty knowledge influenced by the criminal act itself." The defendant excepted "to giving the consciousness of guilt instruction" as "an inaccurate statement of law," but did not specify in what respect it was claimed to be incorrect, as Practice Book § 852 requires. In claiming on appeal that the prosecutor and the court violated his right to remain silent, the defendant assumes that the only basis for the argument and instruction concerning the consciousness of guilt inference to be drawn from a false statement to the police in response to an accusation of crime was the omission from the written statement of any mention of sexual intercourse. On this foundation the defendant has constructed an elaborate argument that, because he had received Miranda warnings advising him of his right to remain silent and to stop answering questions at any time, any comment upon his failure to tell the police he had engaged in intercourse with T infringed upon his constitutional privilege against self-incrimination. He relies upon Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), which held that the silence of an arrested person in the face of police interrogation following Miranda warnings is "insolubly ambiguous" and that "[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Apart from such considerations as the absence of any objection to the prosecutor's argument or the general nature of the defendant's exception to the charge, which never even remotely raised the claim he now advances, the assumption on which the claim is predicated is incorrect. The testimony does not indicate that the defendant remained silent or that he failed to respond to any question asked. The officer who took the statement testified that the defendant, when asked what had happened that night, had given the account contained in the written statement and had "denied any sexual intercourse of any type." On appeal the defendant maintains that this testimony should be construed to mean simply that the officer had inferred such a denial from the defendant's failure to mention the subject of intercourse in his statement. At trial, however, his attorney appears to have understood the officer's testimony to refer to an express denial of such intercourse: "Now [the officer] says that [the defendant] in fact denied he had intercourse." The possible construction of the officer's testimony now proposed by the defendant is not a sufficient basis for further consideration of this claim of error, because any such factual ambiguity must be resolved in favor of upholding the judgment. There is an insufficient factual foundation for the claim that the defendant remained silent after receiving the Miranda warnings. IV The defendant claims finally that the court's instructions in defining reasonable doubt were erroneous and misleading because of the inclusion of the following sentence: "What [the law] does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence, one which you as reasonable and prudent men and women would, be willing to act upon in the more weighty and important matters relating to your own affairs." (Emphasis added.) The defendant concedes that he never excepted to this portion of the charge, but seeks review of this claim pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). This court has permitted Evans review of similar claims that certain language used in the charge in a criminal case had the effect of diluting the state's constitutional burden to prove a defendant guilty beyond a reasonable doubt. State v. Whelan, 200 Conn. 743, 755-56, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Williams, 199 Conn. 30, 33, 505 A.2d 699 (1986); State v. Amarillo, 198 Conn. 285, 299 n.9, 503 A.2d 146 (1986). Accordingly, we review this claim to determine whether the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra. Although we disapprove of the instruc tion, in considering the charge as a whole, we conclude that it does not rise to the level of a constitutional error. In Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954), the defendant on appeal made an attack not made in the trial court upon a jury instruction similar to that before us that defined reasonable doubt as "the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon." The United States Supreme Court declared that "this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 71 App. D.C. 132, 137-138, 107 F.2d 297 [D.C. Cir. 1939], rather than the kind on which he would be willing to act." Id. The court observed, however, that "the instruction as given was not of the type that could mislead a jury into finding no reasonable doubt when in fact there was some" and that "[a] definition of a doubt as something the jury would act upon would seem to create confusion rather than misapprehension." Holland v. United States, supra. The ultimate conclusion was that, "taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury." Id. The reference in Holland to Bishop v. United States, supra, was to a definition of reasonable doubt that included this statement: "It is not a vague, speculative, imaginary something, but just such a doubt as would cause reasonable men to hesitate to act upon it in matters of importance to themselves." Bishop v. United States, supra, 138. Judge Friendly of the Second Circuit Court of Appeals, in reviewing an instruction defining reasonable doubt in terms of acting rather than hesitating to act, opined that "the 'hesitate' language makes the point considerably better and we wish trial judges would use it." United States v. Nuccio, 373 F.2d 168, 175 (2d Cir.), cert. denied, 387 U.S. 906, 87 S. Ct. 1688, 18 L. Ed. 2d 623 (1967). He found it, however, "impossible to believe, in the absence of any evidence such as a request for further instructions, that jurors would retain such a nuance in their minds and be significantly influenced by it." Id. We agree with these authorities that it is incongruous to speak of being "willing to act upon" a doubt, as the instruction in this case suggested, and that it is more consistent with the concept of reasonable doubt to use the "causing one to hesitate" phrase. Bishop v. United States, supra. These cases hold, nevertheless, that such a difference in phraseology does not constitute reversible error, let alone constitutional error in an otherwise adequate charge upon reasonable doubt. The defendant has no other criticism of the trial court's charge on the subject of reasonable doubt, and from our review we find it sufficient as a whole to define the standard of proof necessary for conviction in a criminal case. Accordingly, although we disapprove of the instruction under attack, we conclude that its inclusion does not warrant setting aside the judgment of conviction. There is no error. In this opinion the other justices concurred. General Statutes § 53a-6 (a) provides: "A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense; or (2) the statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (3) such factual mistake is of a kind that supports a defense of justification." The testimony of T that the defendant had told her, after completion of the sexual act, that "he knew that [T] felt [she] was raped but [she] couldn't prove it" is significant evidence that the defendant subjectively may have realized that T had not consented to intercourse. We hold, however, that actual awareness of lack of consent is not essential. Officer John Lyke of the West Haven police department testified in part as follows: "Q. Was [the typed statement] the extent of his response to the question, what happened that night? "Police Officer Lyke: Yes, sir. "Q. Did he deny the sexual assault? "A. Yes, sir. "Q. Did he indicate at any time that he had sexual intercourse with the victim? "A. No, he didn't, sir. "Q. So he denied, any sexual intercourse of any type? "A. That's correct. "Q. And nowhere in State's Exhibit 'P,' that is the statement typed up to you, did he say he had sexual intercourse? "A. That's correct." (Emphasis added.) The portion of the charge defining reasonable doubt was as follows: "Now, a reasonable doubt means this. It is a doubt for which a reasonable man or woman can give a valid reason. The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and a binding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused. A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation, conjecture or an imaginary doubt. A reasonable doubt is not a captious or frivolous doubt, nor is it a doubt which is raised by the ingenuity of Counsel or by a juror and unwarranted by the evidence. Nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence. Absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence, one which you as reasonable and prudent men and women would be willing to act upon in the more weighty and important matters relating to your own affairs. It is proof wholly consistent with the defendant's guilt, and inconsistent with any other rational conclusion."

Shapiro, J. The plaintiff, conservator of the estate of Julie Phelps Revson, brought this action against the town of Weston seeking damages and an injunction in order to restrain it from proceeding with the acquisition of certain of the Revson land intended to be used by the defendant town for school purposes. From a judgment rendered denying the prayer for relief, the plaintiff has appealed to this court. The plaintiff assigns error in the court's refusal to find sixty-six paragraphs of his draft finding which he claims are admitted or undisputed, in the finding by the court of twenty-three paragraphs in its finding which he claims are found without evidence or are of doubtful meaning, and in the failure by the court to reach the conclusions contained in the seventy-one paragraphs of the plaintiff's draft finding. Since these claims of error Have not been briefed or argued, they are treated as abandoned. Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 282 n., 348 A.2d 618; Mahon v. Heim, 165 Conn. 251, 252, 332 A.2d 69; Maltbie, Conn. App. Proc. § 327. The plaintiff's remaining claims of error relate to the court's determination regarding the burden of proof as to the necessity of the taking by the defendant of the Revson property and to various claims regarding the rendering of the judgment by the court. The salient facts found by the court follow, and while seemingly lengthy in our recitation of them, we consider this to be necessary for a proper discussion of the issues involved in this appeal: The defendant filed a "notice of taking" and a "statement of compensation" pursuant to General Statutes §48-6, 48-12 and 8-129, which notice and statement are dated September 18,1970, as the first steps in taldng by eminent domain 10.5 acres of the Revson property. The defendant deposited with the clerk of the Superior Court the amount set forth in the "statement of compensation." Thereafter the plaintiff instituted this action. The 10.5 acres, part of 30.25 acres owned by Julie Phelps Revson, lie immediately north of the present middle school building, and condemnation of this land was sought for the dual purpose of providing playfields and subsurface septic facilities for an 800-pupil addition to that school. The acquisition of this land was recommended by the Weston board of education. This acreage is on the west side of the Revson property and comes within eighty feet of the westerly corner of the dwelling. Located on the 30.25 acres are a house with outbuildings, a swimming pool, a tennis court, a dressing room or a bath. The court together with counsel viewed the premises and surrounding area. In 1965 the Weston board of education adopted a grade organization known as 4-4-4, whereby kindergarten through the fourth grade are housed and administered in one complex known as the elementary school; grades five through eight are housed and administered in the middle school; grades nine through twelve are housed and administered in the high school. This grade grouping was adopted after recommendation by the superintendent of schools, studies and review by the board of education, and was decided upon as being the best and most desirable organization of Weston's school system. The existing middle school building as well as the other school buildings are located on a ninety-acre tract of town-owned land which is immediately adjacent to the condemned Iievson property. Also located on this ninety-acre tract are other buildings including the town hall, the fire house, the town library, the school garage, the town dog pound, and the town highway department with buildings for garaging and storing heavy-duty highway equipment as well as nearby land used for storing piles of sand and salt. The elementary school complex has a capacity of 950 pupils. The high school has a capacity of 750 pupils and, as of October 1, 1970, had 685 pupils. A third wing to the high school has been planned for 1974-1975. The existing middle school was built in 1960, has a capacity of 375-400 pupils, and, because of its limited space, houses only grades seven and eight, comprising 384 pupils. Grade six, comprising 191 pupils, is located in temporary class rooms some distance from the middle school, while grade five is located in the elementary school complex. Thus, the present enrollment in the elementary school complex is 1048, thereby causing an excess in its capacity limit of 950. After completion of the addition to the middle school, its capacity will be 1200 pupils and this will allow some room for expected growth. In 1968, the total pupil capacity for the three schools was 2000 and in that year there were 2079 pupils. Enrollment projections for the town were made in 1969 and such projections were reviewed by the state board of education and found to be reasonable. In the past, by actual experience, such enrollment projections have been proved accurate. Historically, the greatest growth in the Weston school system is in the middle and high schools. After reviewing various matters in connection with its projections, the state board of education was of the opinion that its projections were conservative. The state board of education recommends twenty-seven usable acres for a middle school capacity of 1200 pupils. The addition to the school building will be on the town-owned land connected to the present school. The town explored many sites, including town-owned and other property, in an effort to find a location for the playfields required by the educational program for the expanded middle school. This review covered a period of two years. Physical education is an important part of the curriculum of the middle school as it is in all other schools. The playfields for girls in the middle school will be located on present town-owned property which is adequate. The boys' playfields will consist of two baseball fields of approximately three-and-one-half acres each for use in the spring, and superimposed thereon will be a soccer field and football field for use in the fall. There is no suitable land on the town-owned property for the boys' playfields needed for the middle school addition. The town owns approximately six acres of land lying to the west of the middle school and adjoining a service road, which tract is irregular in shape and very steep. To obtain one baseball field in that area would require construction of a 600-foot retaining wall which would be excessive in cost. If sloping were used instead of a retaining wall, a shoulder on ninety feet would be required to support the service road thereby leaving insufficient area for one baseball field. In addition, this area is presently the site of the subsurface septic leaching field for the existing middle sehool and the leaching field would have to be relocated and rebuilt. Four-and-one-half acres of this land are swampy with a peat bog and very wet. To construct a baseball field thereon would require drainage, clearing, excavation of the peat and refilling to a height above the water table for which the estimated cost was $200,000. Other areas in the town-owned complex are at too great a distance to be suitable for playfields for the middle school. The 10.5-acre Revson site is suitable for providing the area necessary for the boys' playfields for use with the expanded middle school. Adequate subsurface facilities must also be provided for the 800-pupil addition to the middle school. The town explored many sites both on and off its own property in an effort to find a location for such subsurface septic facilities. The state department of health will approve subsurface septic facilities in this area for only an additional 600 pupils and this does not take into account a 100 percent reserve area requirement by this department, effective January 14, 1970, which now must be met by the town. Various areas near the middle and high schools cannot comply with requirements of the state health code for subsurface septic facilities. The area where the temporary classrooms are located shows evidence of capacity for such facilities but its distance from the middle school renders its use too costly for this purpose. There is no suitable land on the town-owned property for the subsurface septic facilities required for the 800-pupil addition. After soil percolation tests of the Revson property, the state department of health approved that site for the subsurface septic facilities. These facilities will consist of two subsurface leaching fields and connecting facilities as well as a reserve area for each field which is necessary in case of a breakdown of the main system. The town made an extensive and exhaustive reevaluation of its educational program and system and only after exploring all alternative sites, considering the requirements of its educational program, was action taken by vote to acquire the Revson land as a solution to the town's immediate educational needs. This review, over a period of two years, included grade groupings, sites off and on the town property and various building combinations, assistance by architects and engineers who designed the proposed middle school addition and who previously designed the high school, and a review of town-owned property and surrounding privately-owned properties. From this review the Revson site was determined to be the most suitable for both playfields and subsurface septic fields. Other private properties reviewed by the town were found unsuitable because they were too wet or swampy, contained springs or were too distant to be feasible. Charles J. Owen, Jr., the town's con- suiting engineer, who had been involved in services related to seventy-five schools and colleges, and is the soils engineer for the architectural firm designing the middle school addition, recommended that the Eevson property would be needed to provide the necessary area for the septic fields and the boys' playfields. Owen worked on the design and location of the high school which was completed in 1968. He is familiar with the entire town property complex on which the schools are located and has spent considerable time in all seasons of the year during the past five years on the town properties in his work as engineer on town projects. He studied the areas between the middle school and the highway department which are upland swamps with a peat bog and the area east and south of the high school and determined that they were unsuitable for Subsurface septic facilities. The opinion of the chief of the bureau of school buildings of the state board of education was that acquisition of the Eevson land was essential to the school expansion to a 1200 pupil capacity. Thereafter, on June 1, 1970, the town board of education resolved to acquire the Eevson property. The plaintiff made no tests and has failed to demonstrate the suitability of any other property for subsurface septic facilities for the proposed middle school. On June 29,1970, by referendum, the town appropriated $305,000 for architects' fees for preparation of final plans and specifications and bid documents for the 800-pupil addition to the middle school. This referendum was preceded by a town meeting on June 19,1970, at which time the proposed condemnation was discussed. For a year or more prior to the town meeting the need and planning for the school were discussed by the town board of education at numerous meetings with, the townspeople. The town board of education, the board of finance and the board of selectmen recommended and approved the acquisition of the Revson site for school purposes and recommended and approved the appropriation of $235,000 for its acquisition and the costs and expenses thereof. After the referendum vote on June 29,1970, the town attempted to agree with the plaintiff on a; sales price for the land but these efforts failed. The final plans and specifications for the construction of the addition to the middle school went out to bid on December 2, 1970. As of the date of the conclusion of the trial, December 15, 1970, no referendum was yet held by the town for the appropriation of funds for the construction of the school addition. The total cost of the 800-pupil addition including the cost of acquiring the Eevson site is estimated at a little over $6,000,000. The town's bonding capacity based on tax receipts as of June 30,1969, is $7,329,464.32. On the facts as found, the court concluded that the defendant complied with General Statutes §48-6, 48-12, 8-128 and 8-129; that the condemnation proceeding was begun in accordance with § 48-12 by the filing of a statement of compensation, lis pendens and service of a notice of taking within six months of a referendum vote as required by § 48-6; that the burden of proof that the decision of the town to condemn the Revson property was arbitrary, unreasonable, in bad faith or in abuse of its power or discretion is upon the plaintiff and the determination of the necessity for such taking is subject to review only for the same reasons; that necessity means only reasonable necessity and there is no requirement that the town plead or prove it; that the town did not act arbitrarily, unreasonably or in bad faith, or abuse the power or discretion conferred upon it, nor did it so act in determining that the Revson property should be condemned for playfields and subsurface septic facilities for the expansion of the middle school as being reasonably necessary for the addition to it; that the town is not required to have a referendum to approve the actual construction of the school or vote the funds therefor prior to the condemnation of the Revson property; and that the plaintiff has failed to sustain the burden of proving unreasonableness, abuse of power, discretion or bad faith in the actions of the town and has failed to demonstrate the suitability of any other land for subsurface septic facilities for the proposed school. In Ms appeal the plaintiff assigns as error the conclusions of the trial court. The court's conclusions are tested by the finding. C & R Connair, Inc. v. Hartford, 166 Conn. 413, 352 A.2d 298; Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 480, 338 A.2d 497. They must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58. The plaintiff's claims will be discussed in the order raised in his brief. The first contention made is that the condemnation was speculative in nature in not being based upon a decision to use the property for public use. The main thrust of this claim is that no town, meeting and referendum had been held to determine whether the proposed middle school addition would ever be built and that the referendum of June 29, 1970, merely appropriated money to prepare a detailed proposal to build to be later submitted to the electorate. The court found that the town plan, published in 1969, included the Revson property as a possible site and this plan proposed that part or all of the Revson property be acquired for middle school purposes to implement the 4-4-4 grade division system. The referendum vote of June 29,1970, appropriated a sum for architects' fees for preparation of final plans, specifications and bid documents for the middle school addition on this site. After this referendum vote the town attempted to agree with the plaintiff on a sales price for the 10.5 acres of the Revson land, but without success. Thereafter, the condemnation proceeding was begun in accordance with § 48-12 by filing a statement of compensation, lis pendens and service of a notice of talcing within six months of the referendum vote as required by § 48-6. The plaintiff argues in his brief and before this court that the town should have waited with regard to these condemnation proceedings, that is, held up finalizing its plans and specifications and not have expended money for architects' fees until it had decided on the construction of the school, and that, therefore, the condemnation proceedings were premature and speculative in nature and could not be construed as intended to utilize the property for a public purpose. The plaintiff cites no authority for this proposition. We view this as an untenable position since it clearly suggests that the first step required is a referendum whereby funds might be appropriated for the actual construction of the school addition, such action to take place prior to the acquisition of the building site. In West Hartford v. Talcott, 138 Conn. 82, 82 A.2d 351, in which the town took land fixed upon as a school site, this court held (p. 88) : "Plans for the use of the properties sought to be taken for an addition to the school and for a playfield, along the lines stated above, were carefully prepared by the principal and the superintendent of schools, were approved by the board of education and formed the basis of the action of the town council in voting to acquire the property." Thereafter, the West Hartford town council authorized and directed its corporation counsel to institute condemnation proceedings for the purpose of acquiring the defendant's land. In the present case § 48-6 in connection with § 48-12 provides the procedures whereby a municipal corporation may take land by condemnation for municipal purposes. As the finding discloses, care was exercised by the town in determining its school needs in discussions held by the board of education with the townspeople at numerous meetings; in reviewing various properties over a two-year period; in receiving the recommendation of the boards of education, finance and selectmen for the acquisition of the site; in concluding that the Eevson property was the most suitable to fill its needs; and in its eventual resorting to condemnation in accordance with the statutory requirements. The conclusions reached by the court that the town has complied with §48-6, 48-12, 8-128 and 8-129 are fully supported by the finding. The claim that the property cannot be condemned without a prior decision by the town that the land is necessary for a specific and determined public use requires some discussion. First, it must be remembered that § 48-6 and 48-12 limit a municipal corporation to taking real estate by condemnation for its municipal purposes. In dealing with a right of condemnation regarding an easement for public use this court held that "it is sufficient to observe that an obligation to devote the easement to the specified public use authorized by the legislature grows out of the acceptance and exercise of the delegated power of eminent domain. Water Commissioners v. Manchester, 87 Conn. 193, 200, 87 A. 870. . . . Should the plaintiff breach its duty . . . [to use the land for some objective foreign to the purpose for which it was taken], there is ample judicial machinery available to the defendants to rectify the wrong. A claim of the nature under dis eussion can be made in almost every condemnation case. It amounts to nothing more than legal bugaboo. By exercising the power of eminent domain granted by the act, the plaintiff becomes bound to devote the property acquired to the purpose for which the legislature has authorized the taking . . . ." Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 588-89, 87 A.2d 139. Thus, it can be seen that the town of Weston, in exercising its power of eminent domain is bound to devote the condemned property to the public use for which it was thus acquired. The claim is without merit. The plaintiff makes the claim that the court was in error in requiring him to go forward with the evidence and assume the burden of proof as to the necessity of the taking. The plaintiff relies upon State v. Simmons, 153 Conn. 351, 216 A.2d 632, as authority for this contention. A careful reading of that case will disclose that such a reliance is unwarranted. The plaintiff alleged in his complaint that the town "has failed and neglected to comply with the General Statutes prescribing the procedure for taking land by eminent domain." The defendant in its answer denies this allegation. This left the burden of proof with the plaintiff as to his affirmative allegation. As already pointed out, the town proceeded under statutory authority to condemn the plaintiff's land. The burden of attacking that authority rested upon the plaintiff. See State v. Simmons, supra, 353; State v. Fahey, 147 Conn. 13, 18, 156 A.2d 463; Bridgeport Hydraulic Co. v. Rempsen, 124 Conn. 437, 442, 200 A. 348; Water Commissioners v. Johnson, 86 Conn. 151, 160, 84 A. 727. The plaintiff makes the claim that the town ignored the existence of its own adequate and unappropriated land adjacent to the existing school. The finding discloses that the town explored many sites both on and off town property; that the land comprising the six acres west of the middle school was too steep and excessive in cost so as to be used as a baseball field; that such construction would require the relocation and rebuilding of the septic leaching fields; that the four-and-one-half acres between the highway department area and the middle school are swampy with a peat bog and very wet, and in order to construct a baseball field thereon the cost to drain, clear, excavate and refill the area would be $200,000, an excessive sum; that the area south and west of the middle school was found unsuitable by the state health department; that the area east of the school is a swamp with peat bog overlaying clay or till and is unsuitable for underground septic facilities; that other areas were either unsuitable, too far removed or too costly to develop; and that there is no suitable land on the town-owned property for the subsurface septic facilities required for the school addition. The court further found that the town's consulting engineer recommended the need for the Bevson land for the septic fields; that the chief of the bureau of school buildings of the state board of education gave his opinion that the land was essential to the completion of the school; and that Charles J. Owen, Jr., the town's consulting engineer, recommended the use of the Bevson land. The plaintiff contends that Owen's recommendation should be disregarded in the light of testimony given by his own expert. "The trier may accept or reject the testimony of an expert offered by one party or the other in whole or in part. Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307. It is elementary that the trier is the final judge of the credibility of the evidence and the weight to be given to it. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641." Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 271, 287 A.2d 374. We find no merit to this claim. The next claim made by the plaintiff is that the court erred in allowing the town to condemn a greater legal interest in the land, here the fee, where a lesser legal interest, an easement, would satisfy the town's need. The plaintiff argues in his brief "that a condemnor cannot take the fee in the land where an easement would completely satisfy its requirements." As his authority the plaintiff cites Northeastern Gas Transmission Co. v. Collins, supra. There the court (p. 592) held: "It is within the province of the legislature to determine both the quantity and the quality of the estate which a condemnor may acquire. 3 Nichols, Eminent Domain (3d Ed.) § 9.2 [1], Thus, authority may be granted to take the fee or an easement. Driscoll v. New Haven, 75 Conn. 92, 99, 52 A. 618. The legislature may likewise authorize the taking of an interest which is either permanent or temporary. Waterbury v. Platt Bros. & Co., 75 Conn. 387, 392, 53 A. 958." In Collins the plaintiff sought to obtain a right of way fifty feet in width to cross the defendant's land of which the inner thirty feet were sought for a permanent easement within which to lay the gas pipe while the outer ten feet on each side temporarily were needed solely for the purpose of providing ample space for the movement of heavy equipment used in the installation of the pipe. In the present case, the court found that the play-fields and subsurface septic facilities are planned to be constructed at the most feasible locations for these facilities and that to locate some of the facilities in other areas would be too costly. Further, the taking line and site of the area condemned conforms with that recommended by the town's consulting engineer. The court concluded that the 10.5 acres of the Revson property .are reasonably necessary to provide playfields and subsurface septic facilities for the expanded middle school. Thus, because of the nature of the use of the Revson land for the school purposes which we have enumerated, the plaintiff's reliance upon the case of Northeastern Gas Transmission Co. v. Collins, supra, does not aid him. Here, the town acted under statutory authority of eminent domain in taking land for municipal purposes. The nature of the use was clearly an essential part of the school program. As already stated, the plaintiff had the burden of establishing that the taking by the town was unreasonable, in bad faith or an abuse of power. This he failed to do. Finally, the plaintiff assigns error in the claim that the court failed to require that the location of the taking be such so. as to minimize the detrimental effect which the taking would have on the remaining Revson property. In his complaint, the plaintiff alleged that the 10.5 .acres are an integral part of the Revson estate and its condemnation will sever approximately one-third of the land of the estate, the effect of which will be drastically to destroy its characteristics. In his brief, the plaintiff refers to this as "severance damage" and argues that the taking can be restrained if it is excessive and that the amount of land to be taken must be reasonable and not arbitrary. Based on the facts before it, the court concluded that the town, in con demning the 10.5 acres, did not act arbitrarily or unreasonably and the property was necessary for the middle school addition. From the facts as found by the court, we cannot say that its conclusions are not legally or logically consistent with those facts. Nor can we say that they involve the application of some erroneous rule of law material to the case. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 48-6. when municipal corporations may take land. Any municipal corporation having the right to purchase real estate for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real estate, within the corporate limits of such municipal corporation, and if, such municipal corporation cannot agree with any owner upon the amount to be paid for any real estate thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void. "[General Statutes] See. 48-12. procedure por condemning land. The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-6, 48-8 and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: The comptroller in the name of the state, any town, municipal corporation or school district, or the trustees or directors of any state institution in the name of the state, shall proceed in the same manner specified for redevelopment agencies in accordance with sections 8-128, 8-129, 8-129a, 8-180, 8-131, 8-132, 8-132a and 8-133. "[General Statutes] Sec. 8-129. agency to determine compensation AND FILE WITH SUPERIOR COURT AND TOWN CLERKS; NOTICE TO OWNERS AND INTERESTED PARTIES. POSSESSION OF LAND. CERTIFICATE OF taking. The redevelopment agency shall determine the compensation to be paid to the persons entitled thereto for such real property and shall file a statement of compensation, containing a description of the property to be taken and the names of all persons having a record interest therein and setting forth the amount of such compensation, and a deposit as provided in section 8-130, with the clerk of the superior court for the county in which the property affected is located. Upon filing such statement of compensation and deposit, the redevelopment agency shall forthwith cause to be recorded, in the office of the town clerk of each town in which the property is located, a copy of such statement of compensation, such recording to have the same effect as and to be treated the same as the recording of a lis pendens, and shall forthwith give notice, as hereinafter provided, to each person appearing of record as an owner of property affected thereby and to each person appearing of record as a holder of any mortgage, lien, assessment or other encumbrance on such property or interest therein . . . ." Article 2 of the town charter of the town of Weston specifies in part as follows: "Section 2.1 . . The legislative powers of the Town, to the extent specified in this article, shall be vested in the Town meeting. . . . Section 2.4 . A Town Meeting Shall be required for the approval of any of the following: . . . (b) after recommendations by the Board of Selectmen and approval by the Board of Finance: (1) an appropriation or an authorization for the issuance of bonds, notes, or other borrowing in excess of the amounts provided for in Section 8.5 of this Charter, but less than $100,000; . . . Section 2.5 Appropriations or Other Action ^Requiring Beferendum A referendum shall be required in the following instances; (a) . . . any appropriation or any authorization for the issuance of bonds, notes or other borrowing of $100,000 or more, after it has been recommended by the Board of Selectmen and approved by the Board of Finance, or any extraordinary appropriation as provided in Section 8.6 in this Charter shall be subject to referendum . . . ." Sections 2.4, 2.5, 8.5 and 8.6 of the charter provide that the extraordinary appropriations for any agency exceeding $2000 must be voted upon by a town meeting (if less than $100,000) and by referendum if they exceed $100,000. "[General Statutes] Sec. 8-128. acquisition or rental or real property in a redevelopment area. . . . The redevelopment agency may acquire real property by eminent domain with the approval of the legislative body of the municipality and in accordance with the provisions of sections 8-129 to 8-133, inclusive, and this section. . . ." The opinion on pages 85 to 87 had discussed the court's finding regarding the need to acquire for school purposes two pieces of land comprising 8.62 acres as being necessary to expand the school's physical plant so as to permit needed area for proper pupil instruction and physical education. The forecasting of school requirements and the sufficiency of future needs as well as the importance of physical education in the curriculum were recited.

The defendant's petition for certification for appeal from the Appellate Division of the Court of Common Pleas is denied.

Per Curiam. This is an appeal from a summary judgment issued on motion of one of the defendants, Nustone Industries, l'nc., hereafter referred to as the defendant. From a stipulation of facts and a finding by the court, the following facts appear: The plaintiff was employed by the defendant and on July 7, 1967, on his way to work, drove his automobile into a parking lot maintained by his employer for employee parking. There, while he was in the process of exiting from his automobile to begin his day's work, he was struck by a truck owned by the defendant and operated by a fellow employee. The defendant was an "employer" within the meaning of that term as used in the Workmen's Compensation Act, chapter 568 of the General Statutes. The plaintiff filed a claim against the defendant for compen sation benefits pursuant to the Workmen's Compensation Act and the defendant has paid him compensation benefits pursuant to the provisions of that act. The plaintiff's attorney wrote a letter to the workmen's compensation commissioner dated August 28,1967, in which he stated that the plaintiff was accepting workmen's compensation benefits "without prejudice to our negligence claim against the employee of Nustone and said corporation." In answer to the plaintiff's complaint, the defendant filed on October 23, 1968, a special defense alleging that at the time of the accident the plaintiff was employed by the defendant, that the accident arose out of and in the course of such employment, that the defendant had taken all actions required of it by the Workmen's Compensation Act, that the plaintiff had filed a claim pursuant to that act, and that under § 31-284 of the General Statutes the benefits of that act constitute the plaintiff's exclusive remedy against the defendant so that the court does not have jurisdiction of the negligence claim alleged against the defendant. On June 19, 1973, the defendant filed the stipulation of facts to which we have hereinbefore referred, executed by the attorneys for the parties, and a motion for summary judgment claiming that there was no genuine issue as to any material fact with respect to its special defense. After hearing, the court rendered judgment, finding that there existed no genuine issue as to any material fact with respect to liability and that the defendant was entitled to judgment as a matter of law. It is from this judgment that the plaintiff appealed to this court. In view of the contents of the stipulation of facts entered into by the parties, the provisions of § 31-284 of the General Statutes, and the holding of such cases as Hughes v. American Brass Co., 141 Conn. 231, 104 A.2d 896, we find no error in the conclusion of the court that there existed no genuine issue as to any material fact and in its rendition of judgment for the defendant. There is no error.

The plaintiff's motion for a review of the clerk's taxation of costs in the appeal from the Superior Court in New Haven County is granted and the relief sought therein is denied.

The named defendant's motion for a review of the action of the trial court dated December 30,1974, in the appeal from the Court of Common Pleas in Fair-field County is granted and the request that the trial court be directed to file a limited finding as to such claims of law as were made in that court is granted.

Hull, J. The defendant, Bernard Thomas, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and carrying a dangerous weapon in violation of General Statutes § 53-206. He received a total effective sentence of thirty-three years imprisonment, suspended after twenty years. On appeal, the defendant claims that the trial court erred: (1) in denying his motions for judgment of acquittal with respect to the charge of burglary in the first degree; (2) in its instructions to the jury with respect to the charge of burglary in the first degree; (3) in failing to order a timely correction of the state's information; and (4) in denying his motion for a new trial. We conclude that the trial court erred in denying the defendant's motions for judgment of acquittal on the charge of first degree burglary and therefore remand the case to the trial court with direction to render a judgment of acquittal on that charge. We find no error with respect to the defendant's remaining claims. The jury could reasonably have found the following facts. At about 5:30 a.m. on April 19,1986, the A-l convenience store located on Maple Avenue in Hartford opened for business. The store was staffed by one clerk, Christopher Dugan. Prior to opening the store, Dugan performed several tasks that he routinely was required to do, including placing a "standard amount" of money—approximately $70—in the cash register located on the store counter. This money was taken by Dugan from a pouch that was situated next to the cash register. At approximately 5:45 a.m., the defendant walked into the store. After picking up a sandwich and a container of juice and putting them on the store counter, the defendant told Dugan that he had left his wallet in his car and that he would be "right back" to pay for the items. He then exited the store. When the defendant reentered the store, Dugan was in a corner of the store preparing coffee. The defendant approached Dugan from behind, placed an arm around his neck, and touched a pointed instrument to his back. He forced Dugan into a bathroom in the rear of the store and ordered him not to move. The door to the bathroom was unlocked. The defendant then went to the front of the store to the area behind the cash register. Meanwhile, Dugan was able to switch on the store's surveillance camera and silent alarm, and then locked himself in the bathroom. Hartford police officer Michael Gerasimovich was less than one block away from the store when he received the report of the silent alarm. Gerasimovich responded without delay and, upon his arrival at the scene, he observed the defendant standing in the open doorway of the store, gesturing him to come inside. The defendant told Gerasimovich that he was the victim of a robbery and that the perpetrator was in the back room of the store. Gerasimovich did not recognize the defendant as a store employee, and when the defendant attempted to force his way past Gerasimovich, Gerasimovich restrained him, and a struggle ensued. At this point, another Hartford police officer, Sebastian Basile, arrived at the scene and immediately went to the aid of Gerasimovich. During the officers' struggle with the defendant, Basile grabbed a knife and a straight razor that he saw underneath the defendant's jacket and threw them to the ground. The officers also removed from the defendant's possession the money pouch that had been on the counter next to the cash register when the defendant first entered the store. The pouch contained $130. The store's surveillance camera recorded much of the incident. The video tape showed a man, identified as the defendant, behind the store counter attempting unsuccessfully to open the cash register. The defendant's scuffle with the police officers was also recorded on the video tape. The video tape was entered into evidence at the trial and viewed several times by the jury and the witnesses. The defendant did not testify on his own behalf at trial nor did he present any witnesses or evidence. I The defendant moved for judgment of acquittal on the charge of burglary in the first degree on three separate occasions during the course of the trial: once at the close of the state's evidence, once after the defense rested, and a final time following the jury's return of a verdict of guilty. See Practice Book § 883, 899. The defendant appeals challenging the trial court's denial of these motions. First degree burglary in Connecticut is defined in General Statutes § 53a-101 (a) as follows: "A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone." For purposes of § 53a-101 (a), the words "enters or remains unlawfully" are further defined in General Statutes § 53a-100 (b): "A person 'enters or remains unlawfully' in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so." In his first motion for judgment of acquittal on the burglary charge, made at the close of the state's evidence, the defendant contended that the evidence introduced by the state at trial was insufficient to establish that his actions fell within the parameters of burglary in the first degree as that crime is defined by § 53a-101 (a) and 53a-100. Specifically, the defendant argued that he could not have "enter[ed] or remainjed] unlawfully" on the premises, as required by § 53a-101 (a), because that element of the crime, as fully defined by § 53a-100 (b), can occur only where the premises are "not open to the public." Since the convenience store was, admittedly, open for business to the public at the time the defendant committed the alleged burglary therein, the defendant claimed that the state had failed to meet its burden of proving beyond a reasonable doubt an essential element of the crime charged, i.e., an unlawful entry or remaining by the defendant, and that a judgment of acquittal should therefore be entered on the burglary charge. In response to the defendant's argument, the trial court noted that a diagram of the A-l convenience store was introduced into evidence at trial and that this diagram included a depiction of the store counter and the area behind the counter. The court stated that an inference could be drawn that the area behind the counter, where the defendant concededly went in an attempt to open the cash register, was for employees only and thus not open to the public. The trial court then denied the defendant's motion for judgment of acquittal on the burglary charge. Presumably, the trial court's denial of the defendant's motion was predicated on its belief that there was sufficient evidence introduced at trial that would reasonably permit the jury to find that the area behind the store counter was not open to the public and, hence, that an unlawful entry or remaining under the burglary statute had indeed been committed by the defendant. On appeal, the defendant has shifted the focus of his argument, claiming that, since an unlawful entry or remaining under § 53a-101 (a) must occur "in a building," the trial court's ruling that there was sufficient evidence to establish that an unlawful entry or remaining occurred in the area behind the store counter can be upheld only if that area may be considered a "building" within the meaning of the statute. The defendant maintains, however, that the area encompassed by the store counter cannot, under any reasonable interpretation, be regarded as a "building" as that term is used in the burglary statute. Thus, it is the defendant's position that the state's evidence was insufficient to establish this essential element of the crime, and that the trial court therefore erred in denying his motions for judgment of acquittal. We agree. For purposes of first degree burglary under § 53a-101 (a), the term "building" is defined separately in § 53a-100 (a) (1) as follows: "Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . . " We conclude that under no stretch of the statutory language can the counter area of the A-l convenience store be deemed a "building" as that term is defined in § 53a-100 (a) (1). The store counter, and the area it encompasses, clearly does not fall within the "separate unit" category of offices, rooms or like structures that may themselves be considered "separate building[s]" under § 53a-100 (a) (1), nor have we discovered a case that even remotely suggests that the counter area of a commercial establishment may be considered a "building" in the context of a burglary statute. Thus, in the absence of a legally identifiable "separate unit" within the A-l convenience store, the entire store itself must be deemed the relevant structure for purposes of determining whether the defendant unlawfully entered or remained in a "building" in violation of § 53a-101 (a). Since it is undisputed that the store was open for business at the time of the alleged burglary, and since the defendant entered no "separate unit" within the store, it follows that his entry and remaining in the area behind .the counter was not "unlawful" under § 53a-101 (a) and 53a-100. Therefore, the state failed to prove an essential element of the crime charged, and it was error for the court to deny the defendant's motions for judgment of acquittal. The state, however, proffers an alternate ground for sustaining the trial court's ruling that merits brief discussion. See Practice Book § 4013 (a) (1). Conceding that the only "building" involved in this case with respect to the burglary charge is the A-l convenience store itself, the state contends, nevertheless, that the defendant "unlawfully remained" in the store in violation of § 53a-101 (a). Since § 53a-100 (b), the relevant definitional section, provides that an unlawful remaining can occur only when the premises are "not open to the public," the fact that the store was open for business to the public at the time of the alleged burglary, would appear to render the state's position untenable. The state, however, advances a novel interpretation of the phrase "not open to the public," contained in § 53a-100 (b), in an attempt to establish that the defendant unlawfully remained on the store premises. The state submits the proposition that a store, like A-l, is "open" to the public only for purposes that are in accord with the store's commercial function, but that a store is "not open" for any purposes inconsistent with that function. Thus, the state argues, when the defendant, once inside the store, manifested an intent to carry out a criminal purpose by forcing the clerk into the bathroom at knifepoint, his actions were incompatible with the store's commercial function and, consequently, the store was no longer "open to the public." The state maintains that under this proposed interpretation there was sufficient evidence introduced at trial to permit the jury to find that the defendant had "unlawfully remained" in a building. The state's argument is an innovative one. We refuse, however, to adopt this unique construction of the phrase "not open to the public" for purposes of defining an "unlawful remaining." Rather, we find that the comments of the Connecticut commission to revise the criminal statutes more accurately reflects the type and scope of activity that was intended by the legislature to constitute an unlawful remaining under § 53a-101 (a) and 53a-100 (b). The commission commented as follows: "enter or remain unlawfully. The purpose of this definition is to make clear that only the kind of entry or remaining which is likely to terrorize occupants is prohibited by the crime of burglary. Thus, when the building is, at the time, open to the public, or the actor is otherwise licensed or priviliged to be there, the element of terror is missing and the requirement is not met. This does not mean, however, that an initial lawful entry followed by an unlawful remaining would be excused. For example, A enters an office building during business hours—a lawful entry since the building is open to the public—and remains, perhaps hidden, after the building is closed, with intent to steal. A is guilty of burglary. " (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969) pp. 52-53. This example cited by the commission, which represents the paradigm of an unlawful remaining under our burglary statutes, clearly does not encompass the conduct of the defendant in this case. Further, we decline to expand the definition of an unlawful remaining, as urged by the state, to include the manifestation of an unlawful intent, such as that exhibited by the defendant, on store premises, while such premises are open for business to the public. Accordingly, we conclude that the court erred in failing to grant the defendant's motions for judgment of acquittal on the charge of burglary in the first degree and, therefore, we remand the matter to the trial court with direction to set aside the judgment of conviction on that charge and to render a judgment of acquittal thereon. II The defendant next claims that the trial court erred in failing to order a timely correction of the state's amended information and that he was denied a fair trial as a result. The following facts are relevant to this claim. The four count amended information alleged, inter alia, that the defendant committed the crime of "carrying dangerous weapons" (emphasis added) in violation of General Statutes § 53-206. The final bill of particulars, however, alleged that the defendant carried only one weapon, a knife, during the incident. The jury was allowed to examine these charging documents during its deliberations. During the course of the trial, the state offered two weapons into evidence: a knife with a six-inch blade, and a straight razor, both of which were found on the defendant's person during his struggle with the police officers. The defendant objected to the admission into evidence of the razor as irrelevant since, under the final bill of particulars, he was charged with carrying only the knife. The state, however, said that it was offering the razor for the limited purpose of demonstrating the defendant's intent to commit the other crimes with which he was charged, i.e., robbery, kidnapping and burglary. After argument by counsel out of the presence of the jury, the court permitted the introduction of the straight razor into evidence to show intent. The defendant claims on appeal that the variance between the charging documents on the weapons charge, coupled with the introduction into evidence of both the knife and the straight razor, confused the jury by leaving them "with the erroneous impression that the defendant was being charged with the possession of more than one weapon." The defendant appears to argue that this variance, taken together with the admission into evidence of the straight razor, misled the jury into believing it could convict the defendant on the weapons charge on the basis of his possession of the straight razor, when in fact the state was limited, under the bill of particulars, to proving that charge by demonstrating that the defendant was carrying a knife only. The defendant maintains that the trial court's failure to prevent this purported jury confusion by ordering a timely correction of the variance constituted an abuse of the court's discretion and denied him his right to a fair trial. We are unpersuaded. The trial court was apprised by defense counsel during the trial of the variance between the amended information and the final bill of particulars with respect to the weapons charge. Instead of ordering a correction of the variance; see Practice Book § 833; the court permitted the jury to review these charging documents with the discrepancy unremedied. This was error. See State v. Avis, 209 Conn. 290, 307-308, 551 A.2d 26 (1988). This determination, however, does not end our inquiry. "In order to constitute reversible error . . . the ruling must be both erroneous and harmful. State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975). The burden of proving harmful error rests on the party asserting it; State v. Dolphin, 178 Conn. 564, 571, 424 A.2d 266 (1979); and the ultimate question is whether the erroneous action would likely affect the result. State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976)." Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). The trial transcript discloses that, after the straight razor was admitted into evidence, the members of the jury were immediately given a cautionary instruction by the court that it was being offered not as the weapon used in any of the crimes charged, but solely to demonstrate the intent of the defendant to commit those crimes. Further, in its final charge to the jury, the court reiterated the limited purpose for which the razor was admitted into evidence: "Some testimony and exhibits have been received for limited purposes. Where I have given a limiting instruction you must follow it. As I recall, the State offered the razor. The straight razor. Not to prove carrying a dangerous weapon in the fourth count. But on the issue of intent. And since it was received into evidence for that purpose, you should use the razor for the purpose for which it is offered[,] on the claim of [the] intent of the defendant." (Emphasis added.) Later, in its instructions with respect to the charge of carrying a dangerous weapon, the court again indicated that the weapon to be considered for purposes of that charge was the knife, not the straight razor. Any potential prejudice to the defendant that might otherwise have arisen due to the uncorrected variance between the charging documents on the weapons possession charge was, in our view, neutralized by the court's instructions to the jury. See State v. Avis, supra, 308. Accordingly, we conclude that the court's failure to order a timely correction of the variance between the amended information and the final bill of particulars was harmless error. III Finally, the defendant assigns error to the court's denial of his motion for a new trial. See Practice Book § 902. A judgment of acquittal having been directed on the burglary charge, our review of the defendant's claim is confined to the remaining charges of which he was found guilty. "Appellate review of the denial of a motion . for a new trial is limited to a determination of whether the trial court abused its discretion. See State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984)." State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). Our review of the record leads us to conclude that the trial court did not abuse its discretion in denying the defendant's motion for a new trial. There is no error. There is error in part, the case is remanded with direction to set aside the judgment of conviction on the charge of burglary in the first degree and to render judgment of acquittal thereon. In this opinion the other justices concurred. The defendant was sentenced on the charges as follows: first degree kidnapping, eighteen years, suspended after five years; first degree robbery, fifteen years, to run consecutively with the sentence for kidnapping; first degree burglary, seven years, to run concurrently with the sentence for robbery; carrying a dangerous weapon, two years, to run concurrently with the sentence for robbery. Practice Book § 883 provides: "Motions for a directed verdict of acquittal and for dismissal when used during the course of a trial are abolished. Motions for a judgment of acquittal shall be used in their place. After the close of the prosecution's case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. Such judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty." Practice Book § 899 provides: "If the jury return a verdict of guilty, the judicial authority, upon motion of the defendant or upon his own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or any lesser included offense, for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt. If the judicial authority directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, he may either: "(1) Modify the verdict accordingly; or "(2) Grant the defendant a new trial as to the lesser included offense." The exchange between defense counsel and the court concerning this issue was as follows: "Ms. Storey: The store here wasn't closed, had not been closed, and I think the State's evidence cannot sustain a burglary in the first degree charge. I think also there is a— "The Court: There was testimony in this case from Mr. Dugan. That [store] counter was drawn at the Court's request, it delineates an area on your diagram to the left of the entranceway, or corridor that's for employees only. "Ms. Storey: I don't believe he said it was for employees only. I believe he drew the counter on there, and he did testify there were no signs, I believe that said employees only. There were no chains across. It doesn't have a separate locked door. "The Court: There is an inference to be drawn that the area where the register, the gas counter and the other machinery are located on your diagram, the left front are not available to the public. The testimony is clear in reference that it is not for public use." The second and third motions for judgment of acquittal made by the defendant on the burglary charge were denied by the court without oral argument from counsel. The state offers no rebuttal to the defendant's attack upon the court's ruling and, in fact, concedes that the counter area is not a "building" for purposes of the burglary statute. The state does, however, offer alternate grounds upon which the court's ruling may be affirmed; see Practice Book § 4013 (a) (1); which are addressed later in this opinion. Our ruling on this point renders moot the defendant's second claim of error regarding the court's instructions to the jury on the burglary charge and, thus, we decline to address it. "[General Statutes] Sec. 53-206. carrying and sale of dangerous weapons, (a) Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or a switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length . . . or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. No permit shall be issued to any applicant who has ever been convicted of a felony. The issuing authority may request the applicant's fingerprints and full information concerning his criminal record and make an investigation concerning the suitability of the applicant to carry any such weapon. Refusal of fingerprinting by the applicant shall be sufficient cause to refuse issuance of a permit. Whenever any person is found guilty of a violation of this subsection, any weapon or other implement within the provisions hereof, found upon the body of such person, shall be forfeited to the municipality wherein such person was apprehended, notwithstanding any failure of the judgment of conviction to expressly impose such forfeiture. Any person who has been granted a permit to carry any martial arts weapon pursuant to this section may carry such weapon anywhere within the state. The provisions of this subsection shall not apply to any officer charged with the preservation of the public peace nor to any person who is found with any such weapon or implement concealed upon his person while lawfully removing his household goods or effects from one place to another, or from one residence to another, nor to any person while actually and peaceably engaged in carrying any such weapon or implement from his place of abode or business to a place or person where or by whom such weapon or implement is to be repaired, or while actually and peaceably returning to his place of abode or business with such weapon or implement after the same has been repaired." " 'The bill of particulars does not become part of the [information]. See 4 Wharton, Criminal Law and Procedure, § 1870. See generally 41 Am. Jur. 2d, Indictments and Informations, § 168-65.' State v. Glass, 107 R.I. 86, 92, 265 A.2d 324 (1970). It does, however, limit the state to proving that the defendant committed an offense 'in substantially the manner described.' State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976). . . ." (Citations omitted; brackets in original.) State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). The state's final bill of particulars mentions only that a knife, not a straight razor, was used by the defendant in connection with the crimes charged. Thus, with respect to the weapons charge, the state was limited to proving that the defendant was carrying a knife. Practice Book § 833 provides: "When any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions." "[The Court:] I want the record to reflect the jury is back. A straight razor with the tag in your absence was marked as a full exhibit. If you will recall in my preliminary suggested instructions to you, it is possible in a trial for something to be admitted for a limited purpose and not for other purposes. I am instructing you that this razor has been admitted as a full exhibit. As you may recall, there are four counts. The bill of particulars indicates the State claims a confrontation by the defendant with the clerk with a knife. Now, the knife is already marked Exhibit A. This razor, Exhibit E, is offered not to show a use under any of the counts as the instrument used. This razor is used for the purposes of showing or intending to show intent, which is an element in the crimes, in the crimes charged. So, this is just a preliminary caution. This is not to be used for all purposes. It is admitted to show on the issue of intent. I will again state that in the final charge for you." "[The Court:] As to the fourth count, the defendant is charged with carrying a dangerous weapon. A person who carries on his person any knife, the edged portion of the blade of which is four inches or over in length, unless such person has been granted a written permit authorizing the person to carry such weapon or instrument within the town, such person commits the crime of carrying a dangerous weapon. . . . There has been evidence adduced that there was no written permit issued and signed by the police or the chief of police authorizing Bernard Thomas . . . to carry a knife. And if you believe the elements someone who carries on his person a knife the edged portion of the blade which is four inches or over unless the person has a permit such person without a permit commits the crime of carrying a dangerous weapon." Practice Book § 902 provides: "Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant's noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion: "(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or "(2) For any other error which the defendant can establish was materially injurious to him. "If the trial was by the court and without a jury, the judicial authority, with the defendant's consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment." In view of the fact that the defendant's seven year sentence on the burglary charge was to run concurrently with his fifteen year sentence on the robbery charge; see footnote 1, supra; resentencing of the defendant is unnecessary.

Glass, J. This is an appeal by the respondent, Elba M., from the judgment of the trial court terminating her parental rights to Luis C., her son, pursuant to General Statutes § 17-43a (b) (2) and (4). On appeal, the respondent claims that the trial court erred in concluding that she had failed to achieve a degree of personal rehabilitation that would allow her to assume a responsible position in the child's life. She also claims that General Statutes § 17-43a (b) (4) violates the due process clauses of the Connecticut and United States constitutions. We find no error. As a result of allegations that Luis had been physically abused, on April 2,1982, the department of children and youth services (DCYS) filed a petition in the trial court alleging that Luis was a neglected child. Luis was eighteen months old at the time the petition was filed. Pursuant to an order of temporary custody, Luis, whose biological parents were Hispanic, was taken into custody by DCYS, and was placed in the home of non- Hispanic foster parents in May, 1982. Luis has been in their care since that time. Following a hearing on the petition, the trial court on September 9,1982, adjudicated Luis a neglected child because of parental abuse, and committed him to the care and custody of the commissioner of DCYS for a period up to eighteen months. With the respondent's agreement, Luis's commitment to DCYS was extended for a period of eighteen months in February, 1984, and for an additional eighteen months in August, 1985. On October 23,1986, the commissioner of DCYS filed a petition to terminate the parental rights of the respondent and Victor, Luis's father. The commissioner alleged that Victor had abandoned Luis, and that the respondent's parental rights to Luis should be terminated on the basis of § 17-43a (b) (2) and (4). Section § 17-43a (b) (2) provides that the trial court may grant a petition to terminate parental rights based upon proof by clear and convincing evidence that the parents of a child, previously adjudicated by the Superior Court to be neglected, have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the child's age and needs, they could assume a responsible position in the child's life'. Section 17-43a (b) (4) provides that parental rights may be terminated if by clear and convincing evidence it is proven that there is no ongoing parent-child relationship. In March and April, 1986, the trial court conducted a hearing on the commissioner's petition to terminate the respondent's parental rights to Luis. The trial court heard testimony from several counselors who had worked with Luis and the respondent. Louise Leavenworth, a social worker, testified that she observed twenty-three visits by the respondent with Luis during the period from December, 1984, to July, 1986. She testified that she found very little interaction initiated by the mother with Luis, and that Luis reacted negatively toward his mother. Leavenworth testified that Luis had become concerned about the court proceeding and where he was going to live. She further testified that adoption by the foster parents would have a positive influence on Luis and that a reunification with his mother would be negative. She concluded that no meaningful relationship between Luis and his mother would be likely to develop. The respondent engaged in counseling at two separate facilities beginning in 1982. In October, 1982, she was referred by DCYS to Hartford Community Health Services for parenting skills counseling. The scheduled weekly sessions were discontinued in May, 1983, because of her absences. The substance of the testimony of her counselor from Hartford Community Health Services was that the respondent did not experience any substantial increase in parenting skills as a result of the sessions. In 1984, the respondent began counseling with the Institute for the Hispanic Family, initially for the purpose of dealing with the respondent's problems of getting independent housing, reunification with Luis and parenting of her newborn child, Carlos. The main efforts of this counseling activity were directed toward Carlos, who had been a difficult child to raise. The respondent's counselor, Gloria Gerena, testified that she observed a visit between the respondent and Luis in November, 1985. She described the visit as friendly and not negative, but that Luis treated the respondent as a friend and not as his mother. Gerena also testified that, based on her work with the respondent over a two and one-half year period, it was her opinion that the respondent had the "potential" to develop adequate parenting skills. Pursuant to the trial court's order, in September, 1985, Dr. Julia Ramos-McKay, a psychologist, performed an evaluation of the respondent, the foster mother and Luis. She testified that the respondent's and Luis's relationship was "friendly" but was not that of a mother and child. She further testified that Luis's foster mother was the child's "psychological" parent, and that Luis referred to his foster mother as "Mom." Ramos-McKay suggested that, as of September, 1985, the respondent may not have had command of common parental techniques. Dr. Henry Kranzler, a specialist in cultural psychiatry, testified for the respondent. Kranzler was unable to render a definitive opinion on whether it would be possible to reunite the respondent and Luis in the future. He also testified that it would be "disastrous" for Luis to return to an Hispanic cultural environment in light of the fact that Luis had spent the previous four and one-half years in an Anglo-American environment with his foster parents. The trial court also heard testimony that, at the time of DCYS' initial involvement with Luis in connection with the original abuse allegation, the respondent lived on Groton Street in Hartford. Thereafter, she moved to Vine Street. She was evasive about her other residences. Housing had been difficult to obtain because of a lack of housing units and a lack of money. Gerena, one of the respondent's counselors, contacted the Hartford Housing Authority on behalf of the respondent and furnished other housing leads to her. At the time of the termination hearing, the respondent had an apartment in the Charter Oak public housing project, but according to Gerena, the street on which the respondent lived was considered the worst street in the project because of a high crime rate. Luis, who was almost seven years old at the time of the termination hearing, did not testify. The trial court found that the parties had stipulated that Luis loved his foster parents, considered them to be his mother and father, and wanted to live with them and not the respondent. The trial court determined that because Luis has grown up as a non-Hispanic child in the foster home, his relationship to his Hispanic mother had suffered, that the difference in cultures between mother and child adversely affected their relationship, and that Luis's return to an Hispanic culture after this stay in the Anglo-American foster home would be disastrous. The trial court further found that the respondent's visits with her son at his foster home had not been productive. The visits caused Luis to experience tension and anxiety. Following the respondent's visits, Luis experienced nightmares, maladjustment at school, mood changes and bed wetting. A pediatric nurse and a kindergarten teacher confirmed Luis's negative reaction to the respondent's visits. The trial court sanctioned the cessation of the respondent's visits in January, 1986, and thereafter Luis no longer suffered from the negative reactions identified as having been caused by the respondent's visits. The trial court further found that the respondent's parenting skills were deficient and that her relationship with Luis had suffered because of this deficiency. Pursuant to General Statutes § 17-43a (d), the trial court, in its memorandum of decision, made specific findings regarding the six statutory factors necessary for consideration in a proceeding to terminate parental rights. While many of these findings are evident from our recitation of the facts, for emphasis, we will recapitulate those findings here. The court found that the counseling services provided to the respondent had little effect in improving her parenting skills. It also found that the respondent had displayed little dedication to meeting obligations that she had agreed to, such as maintaining contact with DCYS and attending parenting skills programs. It further found that Luis, who was six years of age at the time of the termination hearing, had bonded with his foster parents, and that the respondent had made only limited efforts to adjust her conduct and circumstances so that Luis's return to live with her would be in his best interests. It also found that the respondent's efforts to maintain a meaningful relationship with Luis had not been interfered with by any other person. Accordingly, the trial court found that the evidence was clear and convincing that the respondent had failed to achieve the necessary level of rehabilitation required under § 17-43a (b) (2) and that there was no ongoing parent-child relationship as provided by § 17-43a (b) (4). The trial court also concluded that the evidence was clear and convincing that it was in Luis's best interests to grant DCYS' petition to terminate the respondent's parental rights. I The respondent's principal claim is that the trial court erred in finding by clear and convincing evidence that she had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of her child, she could assume a responsible position in his life. General Statutes § 17-43a (b) (2). "The termination of parental rights is defined as 'the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . . ' General Statutes § 17-32a (e) (Rev. to 1972) [now § 45-61b (g)]. Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 [1972]; see In re Appeal of Kindis, 162 Conn. 239, 240, 294 A.2d 316 [1972]; Cinque v. Boyd, [99 Conn. 70, 82, 121 A. 678 (1923)]." Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Termination of parental rights is "a most serious and sensitive judicial action." Id., 430. "Section 17-43a carefully sets out . . . four situations that, in the judgment of the legislature, constitute 'countervailing interests' sufficiently powerful to justify the termination of parental rights in the absence of consent. The commissioner of children and youth services, in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing 'best interests' standard vitiates the requirement of compliance with the statutory criteria. See Alsager v. District Court of Polk County, [406 F. Sup. 10 (S.D. Iowa 1975), aff'd, 545 F.2d 1137 (8th Cir. 1976)]; In re Adoption of Children by D., 61 N.J. 89, 293 A.2d 171 (1972); Malpass v. Morgan, 213 Va. 393, 192 S.E.2d 794 (1972); Ketcham & Babcock, 'Statutory Standards for the Involuntary Termination of Parental Rights,' 29 Rutgers L. Rev. 530, 539 (1976); comment, 'Termination of Parental Rights in Adoption Cases: Focusing on the Child,' 14 J. Fam. L. 547, 550 (1975)." In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671-72, 420 A.2d 875 (1979). The respondent mounts a three pronged attack on the trial court's decision granting the petition to terminate her parental rights to Luis. She argues that the evidence adduced at the hearing showed that she did in fact successfully rehabilitate herself to the extent that, with some supportive counseling services, she currently could be a responsible parent to Luis. She also maintains that the trial court narrowly and improperly construed the term "rehabilitation" under § 17-43a (b) (2) and further, that the court based its decision in part on factors for which the respondent was not responsible. She maintains, therefore, that the trial court's determination that the evidence was clear and convincing that the respondent had failed to rehabilitate herself was clearly erroneous. We are not persuaded. A determination by the trial court under § 17-43a (b) (2) that the evidence is clear and convincing that the parent has not rehabilitated himself or herself will be disturbed only if that finding is "not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980)." In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In the present case, the trial court's findings, which are amply supported by the record, indicate that the respondent's visits with Luis were not productive toward maintaining or reinforcing a parent-child relationship, that Luis reacted negatively toward her, that the progress the respondent had made in improving her parenting skills with respect to Luis was unpromising, that the prospects of the respondent achieving a useful and constructive role as a parent to Luis were crucially impaired by language and cultural barriers, that Luis had psychologically bonded with his foster parents with whom he had lived for the last five years of his almost seven year life, and that the respondent continued to have difficulty in obtaining adequate housing. Moreover, the trial court found that DCYS had made reasonable efforts to reunify the respondent with Luis. In light of these findings as supported by the record, we are not persuaded that the trial court was clearly erroneous in concluding that the evidence clearly and convincingly demonstrated that the respondent had failed to achieve a level of rehabilitation that would encourage the belief that, within a reasonable time, considering Luis's age and needs, the respondent could assume a responsible position in Luis's life. General Statutes § 17-43a (b) (2). The respondent argues, however, that the term "rehabilitation," as used in § 17-43a (b) (2), does not require the parent to be able to assume full responsibility for a child without the use of available support programs. She also claims that her failure to fulfill all court expectations does not equate with a conclusion that she could not assume a responsible position in the child's life. See In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986); In re Juvenile Appeal (84-3), supra. We have no quarrel with the propositions to which the respondent alludes. We note, however, that as it is presently written, § 17-43a (b) (2) requires parental rights to be terminated if by clear and convincing evidence it is established that the respondent's level of rehabilitation falls short of the level which would "encourage the belief that within a reasonable time, considering the age and needs of the child, " the parent could assume a responsible position. (Emphasis added.) Thus, the statute requires the trial court to analyze the respondent's rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable "within a reasonable time." There may be instances in which the evidence does not establish that parental rights should be terminated under this section, despite the fact that continuing support programs for the parent may be suitable or even necessary. The trial court in the present case, however, determined that, with regard to Luis's age and needs, the respondent had not been rehabilitated. Further, the record discloses that the trial court based its conclusion on a plenary consideration of the factors identified in § 17-43a (d), and did not grant the petition to terminate the respondent's parental rights solely on the basis of the respondent's failure to abide consistently by agreements entered into with the court. The respondent also suggests that the trial court's decision was erroneous because it was based in part on financial, language and cultural barriers "not of her own making" which rendered difficult the task of reunification with Luis. The record, however, indicates that the trial court found that the respondent's failure to reunify with Luis was not primarily the result of her financial difficulties. Moreover, although it is true that the cultural and linguistic barriers between the respondent and Luis resulted from Luis's placement with a non-Hispanic foster family, the trial court found that "[wjhile placement within the extended family or in an Hispanic foster home might have been better than use of this non-Hispanic home, those alternative options have not been available." We recognize that some of the facts relied on by the trial court in granting the petition to terminate parental rights cannot be attributed to a lack of moral responsibility or commitment on the part of the respondent. Under § 17-43a, however, the trial court's obligation is not to make an unguided investigation of the respondent's "fault" in determining whether to grant a petition to terminate parental rights, any more than its disposition is intended to reflect some kind of moral judgment respecting a parent whose rights are terminated. Nor may this court invalidate the statutory criteria of § 17-43a merely because that criteria may in some instances implement the legislature's judgment that parental rights should be terminated despite the fact that a particular parent, with the best intentions, personally may be incapable of overcoming deficiencies in parenting skills. "This court has '[i]nsist[ed] upon strict compliance with the statutory criteria [of § 17-43a] before termination of parental rights and subsequent adoption proceedings can occur . . . . ' " (Citation omitted.) In re Juvenile Appeal (84 -BC), 194 Conn. 252, 257 n.9, 479 A.2d 1204 (1984). "Insistence upon strict compliance with the statutory criteria . . . enhances the child's best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child's 'best interests.' " In re Juvenile Appeal (Anonymous), supra, 672. In the present case, the trial court strictly complied with the requirements of § 17-43a by giving plenary consideration to both subsections (b) (2) and (d) of that statute. We have reviewed the record together with the transcript, exhibits and briefs in this case, and we are unable to find that the facts found by the trial court as set out in its memorandum of decision are clearly erroneous. II The respondent next claims that § 17-43a (b) (4) violates the due process clauses of the Connecticut and United States constitutions. She argues that the state's attempt to terminate her parental rights on the grounds that there is no ongoing parent-child relationship, and that it would be detrimental to the child's best interests not to terminate her parental rights, without any showing of parental unfitness, unconstitutionally infringes upon her fundamental right to family integrity. See Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973); Joyner by Lowry v. Dumpson, 712 F.2d 770, 777 (2d Cir. 1983); In re Juvenile Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983). Because we have concluded that the evidence was sufficient to support termination of the respondent's parental rights under § 17-43a (b) (2), it is not necessary to address the respondent's constitutional challenge to § 17-43a (b) (4). "In a petition to terminate parental rights under section 17-43a, the petitioner must list the grounds relied upon and, if any one of these grounds may be upheld, the order to terminate must stand. In re Juvenile Appeal (83-BC), 189 Conn. 66, 69, 454 A.2d 1262 (1983) (where a mother claimed there was insufficient evidence to terminate her rights on either of two grounds under § 17-43a [b], our conclusion that one of the grounds was supported by the evidence made it unnecessary to consider whether the second ground was supported). Since the [respondent unsuccessfully challenges] one of the statutory bases on which the trial court terminated her parental rights, we do not decide the constitutional issues she has raised in connection with the other . . . [ground]." In re Juvenile Appeal (8k-BC), supra, 258. There is no error. In this opinion the other justices concurred. General Statutes § 17-43a (b) provides in pertinent part: "The superior court upon hearing and notice . . . may grant such petition [to terminate parental rights] if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year . . . (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child . or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child." The court on September 9,1982, issued additional orders, providing for the mother to visit the child regularly, to participate in child counseling and parenting skills programs, and to maintain adequate housing. The abandonment allegation was based on General Statutes § 17-48a (b) (1) which provides: "The superior court upon hearing and notice . . . may grant such petition [to terminate parental rights] if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child." Regarding the father the trial court stated: ' 'No services could be offered to the father [by DCYS] who failed to maintain contact with DCYS," and "[t]he father has made no observable effort to adjust his circumstances, conduct or condition to make it in the best interests of Luis to return to his parents in the foreseeable future." "The father last attended court on the initial commitment hearing on September 9, 1982, when he acknowledged in writing the expectations of the court. The father last saw his son in April, 1982, and has had no further contact. The father has disappeared from his son's life. The mother admits in her answer that Victor has abandoned the child without visitation since commitment." The trial court concluded: "As of October 21,1986, father has abandoned his son by the test of Section 17-43a (b) (1)." Accordingly, the parental rights of Victor to Luis were terminated, and Victor has not appealed from the court's adjudication. See footnote 1, supra. General Statutes § 17-43a (d) provides: "Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent." The respondent has not challenged the constitutionality of General Statutes § 17-43a (b) (2).

The defendant's "Request for Representation" dated October 29,1974, in the appeal from the Superior Court in Hartford County is denied.

The plaintiff's motion to dismiss the appeal from the Superior Court in New Haven County is denied.

The plaintiff's motion to dismiss the appeal from the Superior Court in Fairfield County is denied:

Santaniello, J. The defendant was found guilty of the crime of arson in the first degree in violation of General Statutes § SSa-lll. Upon conviction, he was sentenced to a definite term in prison and transferred to the Whiting Forensic Institute, the trial court having found that the defendant was mentally ill and dangerous to himself and others. After commitment and confinement from January 9, 1985, to January 7,1986, the defendant was presented in court, in accordance with General Statutes § 17-251 (b), to determine whether he was eligible for discharge from Whiting and to determine his disposition if discharged. As a consequence, he was returned to the custody of the commissioner of correction to serve the balance of his sentence. On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court, Kelly, J., erred in determining that it had no discretion to release the defendant from incarceration pursuant to § 17-251. The Appellate Court concluded, however, that the trial court had no discretion to release the defendant because he was not otherwise eligible for release under the penal code. State v. Hanson, 12 Conn. App. 32, 45, 529 A.2d 720 (1987). This court granted the defendant's petition for certification to determine whether the Appellate Court erred in affirming the judgment of the trial court. We reverse the decision of the Appellate Court and remand the case with direction. Although the facts that the trial court could reasonably have found are set forth in State v. Hanson, supra, we summarize those facts pertinent to the issues in this appeal. The defendant was charged with two counts of attempted murder in violation of General Statutes § 53a-54a and 53a-49 and one count of arson in the first degree in violation of General Statutes § 53a-lll. He was tried to the court, Hale, J., and acquitted of the two counts of attempted murder, but found guilty of the count of arson in the first degree. During the course of the trial, the court heard psychiatric testimony from two physicians regarding the defendant's mental state. On January 9,1985, after considering a report from the Whiting Forensic Institute, the testimony presented and the arguments of both counsel, the trial court sentenced the defendant to the custody of the commissioner of correction for a term of fifteen years. Because the court also found that Hanson was dangerous to himself and to others, it ordered him confined to the Whiting Forensic Institute for custody, care and treatment in accordance with General Statutes § 17-245. The court stated: "If the Director should find that the defendant is sufficiently improved to be discharged from the institute, it is the strong recommendation to the Court hearing the matter under [General Statutes § 17-251] that the defendant serve at least a portion of this sentence." On January 7,1986, the defendant appeared before the trial court, pursuant to General Statutes § 17-251 and asked the court to enter an order transferring him to another institution, such as Connecticut Valley Hospital, or in the alternative to heed Judge Hale's recommendation at sentencing and require him to serve some lesser portion of his fifteen year sentence. Judge Kelly, however, discharged the defendant from Whit ing and transferred him to the commissioner of correction to serve the remainder of his fifteen year sentence, stating that he could not resentence the defendant because "[h]e has already been sentenced." The defendant appealed to the Appellate Court claiming that the trial court erred in finding that it lacked the authority to release the defendant before he was eligible for release under his original fifteen year sentence. The Appellate Court sustained the trial court ruling and concluded that the trial court had no discretion to release the defendant because he was not otherwise eligible for release under the penal code. State v. Hanson, supra, 45. The sole issue raised on appeal is whether the Appellate Court erred in concluding that in a proceeding pursuant to § 17-251, the court may not modify the sentence previously imposed if modification is otherwise prohibited under the penal code. Under § 17-251 (b), a hearing is held to determine whether a defendant who is confined to Whiting for psychiatric care under General Statutes § 17-244 and 17-245 should be discharged from the institute. If the court determines that the patient should be discharged, it must then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction. The Appellate Court concluded that the word "release" in § 17-251 (b) was to be read in conjunction with its use in the penal code, and therefore "to vest the court with discretion, upon its determination that the defendant should be discharged from the institute, to modify the original sentence of the defendant if he would otherwise be eligible for release under the penal code." State v. Hanson, supra, 45. The Appellate Court upheld the denial of relief to the defendant under § 17-251 (b) by concluding that the defendant was ineligible for release under the penal code for two reasons. We find error in both reasons offered by the Appellate Court and disagree in its reading of the word "release" in § 17-251 (b). The first ground relied upon by the Appellate Court was that the defendant's conviction of a class A felony made him ineligible for conditional or unconditional release under General Statutes § 53a-28 and 53a-29. The Appellate Court did not consider the possibility of a suspended sentence and probation, apparently assuming that such a sentence would be contrary to General Statutes § 53a-35a and 53a-29 (a). This court, however, in State v. O'Neill, 200 Conn. 268, 511 A.2d 321 (1986), held that a sentencing court has discretion to enter a suspended sentence for a first degree arson conviction. In O'Neill, we found that the trial court's failure to exercise its discretion to consider any suspension of a sentence for first degree arson was a violation of the defendant's equal protection rights. Because the defendant was convicted for first degree arson, he could have received a suspended sentence. Therefore, the Appellate Court erred in concluding that General Statutes § 53a-28 and 53a-29 prohibited the defendant's release under § 17-251 (b). The second ground relied upon by the Appellate Court was that General Statutes § 53a-39 prohibits the early release of a defendant who has been sentenced to a definite term exceeding three years. Noting that the defendant had been convicted and sentenced under the penal code to a definite sentence of fifteen years, the Appellate Court concluded that the defendant was therefore ineligible for discharge or intensive probation under § 53a-39. While the Appellate Court accepted that the court could grant parole to an eligible defendant, or order him to be returned to the custody of the commissioner of correction pursuant to § 17-251 (b), it concluded that the word "release" in the statute must be construed in accordance with the statutes regarding sentencing and punishment, for "[t]o hold otherwise would lead to the bizarre and irrational result that persons who are criminally responsible for their actions, who have been convicted and sentenced and who would not be otherwise eligible for discharge from the custody of the commissioner of correction, might serve only six months in a psychiatric institute, and then upon reexamination and a hearing, be released from any further confinement." State v. Hanson, supra, 46. The Appellate Court concluded, therefore, that § 53a-39 served to limit the discretion of the trial court to order release under § 17-251 (b). We find our decision in Murray v. Lopes, 205 Conn. 27, 529 A.2d 1302 (1987), dispositive on the issue of the correct interpretation of the word "release" in § 17-251 (b). While Murray v. Lopes dealt with the application of statutory sentence reduction credit to individuals sentenced and confined at Whiting for custody, care and treatment pursuant to General Statutes § 17-245 (c), we noted that "the benefit of early release under § 17-251 is in addition to, not in lieu of, the statutory sentence reduction credit that automatically accrues to all prisoners," and "the fact that there are two different statutory release systems does not compel the conclusion that they are inconsistent or conflict with each other." (Emphasis added.) Murray v. Lopes, supra, 35-36. The possibility of release through sentence modification under § 53a-39 is distinct from the possibility of release under § 17-251 (b). Although both statutes operate similarly by giving the court discretion to order release, they are different mechanisms for release. The word "release" as used in § 17-251 (b) is clear and unambiguous. To find support for the Appellate Court's position, this court would have to ignore its previous decisions that have held that if the language of a statute is clear and unambiguous, courts cannot, by construction, read into statutes provisions that are not clearly stated. See State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); Johnson v. Manson, 196 Conn. 309, 314, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). We acknowledge the Appellate Court's concern that reading "release" under § 17-251 (b) independent of the penal code could result in the release of a defendant convicted and sentenced under the penal code from any further confinement after six months at Whiting. If, for instance, an individual were convicted and sentenced to a nonsuspendible sentence of ten years in the Connecticut correctional institution at Somers, that individual would not be eligible for sentence reduction and would serve the full ten year term. If that same individual had been found to be in need of custody, care and treatment under General Statutes § 17-244 and 17-245, early release from his previously imposed sentence of ten years would be possible upon his discharge from Whiting pursuant to § 17-251 (b). Furthermore, an individual found to be in need of observation and treatment in a mental hospital following sentencing and transferred to such a facility pursuant to General Statutes § 17-194d or 17-194e must be returned to the custody of the commissioner of correction to complete his sentence upon recovery and discharge from the mental hospital. General Statutes § 17-194f. Although we might disfavor the inconsistent results outlined above, "[i]t is not the function of this court to alter the will of the legislature merely because the results are unfair." McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984). "Where statutory language is clearly expressed . . . courts must apply the legislative enactment according to the plain terms and 'cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.' " Johnson v. Manson, supra, 315. " 'It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature.' " State v. Perrucio, 192 Conn. 154, 163 n.4, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), quoting Duart v. Axton-Cross Co., 19 Conn. Sup. 188, 190, 110 A.2d 647 (1954). We go no further than to point out that revision and clarification of General Statutes § 17-251 by the legislature is necessary. As it stands, the statute appears to authorize the director of Whiting and the trial court to grant "parole" to a patient sentenced and committed by the court. If that option was ever truly available to the director or the trial court under the statutes relating to parole, it is no longer a viable option with the advent of definite sentencing in Connecticut in 1980. As has already been pointed out, that portion of § 17-251 (b) that authorizes the trial court to release a sentenced patient upon discharge from Whiting produces questionable results. Cognizant of our responsibility to afford the defendant his right to equal protection, we believe a remand to the original sentencing court is in order with the direction that it resentence the defendant with the knowledge that a suspended sentence is now available, though not mandatory, for first degree arson. As we stated earlier, State v. O'Neill, supra, held that the trial court erred in refusing to exercise its discretion to consider any suspension of the defendant's sentence for first degree arson. Because our decision in O'Neill followed the defendant's sentencing in the present case, the trial court was unaware that it had discretion to give the defendant a suspended sentence. There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction that it be returned to the original sentencing court for resentencing in accordance with this opinion. In this opinion the other justices concurred. "[General Statutes] Sec. 53a-lll. arson in the first degree: class a FELONY, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury. "(b) Arson in the first degree is a class A felony." "[General Statutes] Sec. 17-251. review of cases after periodic examinations, disposition of cases: further treatment, transfer, leave of absence, parole, (a) As soon as is practicable the director shall act upon the examination reports of his staff. Upon review of each report and upon consideration of what is for the benefit of the patient and for the benefit of society, the director shall determine that such patient: (1) Remain in the institute for further treatment or be transferred to some other facility under the control of the commissioner or (2), if such patient is under commitment, be granted a leave of absence or extended visit or (3), if such patient is under sentence and is eligible for parole, be granted a parole; or (4) has sufficiently improved to warrant his discharge from the institute provided if such person was sentenced and confined in the institute under section 17-245, he shall not be released except upon order of the court by which he was confined under said section, after notice to said court by the director. "(b) The court, upon its own motion or at the request of the defendant or his attorney, may at any time hold a hearing to determine whether such person should be discharged from the institute prior to the expiration of the maximum period of his sentence. Prior to such hearing, the institute shall file a report with the court concerning the patient's mental condition. The court may appoint a physician specializing in psychiatry to examine the patient and report to the court. Such hearing shall be held at least once every five years. If the court determines the patient should be discharged from the institute, it shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction." "[General Statutes] Sec. 17-245. disposition of defendant after REPORT. . . . "(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. If the court finds that such person is in need of outpatient psychiatric treatment, it may place him on probation on condition that he receive such treatment. If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence." General Statutes§ 17-244 provides in part: "certain convicted persons TO BE EXAMINED. REPORT AND RECOMMENDATION, (a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel or the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. ." "[General Statutes] See. 53a-28. authorized sentences, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title. "(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73 or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge. "(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction." General Statutes § 53a-29 provides in part: "probation and conditional discharge: criteria; periods, (a) The court may sentence a per son to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of the guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice. "(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate. . . ." "[General Statutes] Sec. 53a-35a. imprisonment for ANY felony COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a; (2) for class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime." Having ruled, in State v. Dupree, 196 Conn. 655, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985), that a sentencing court has authority to suspend a portion of a sentence for arson murder in violation of General Statutes § 53a-54d this court, in State v. O'Neill, 200 Conn. 268, 511 A.2d 321 (1986), found that the trial court's failure to exercise discretion to consider a suspended sentence for first degree arson constituted a violation of the defendant's right to equal protection under our federal and state constitutions because it resulted in a harsher penalty for a defendant who acted with less culpable intent and who caused a less serious result. General Statutes § 53a-39 provides in part: "reduction of definite SENTENCE OF THREE YEARS OR LESS. DISCHARGE OF DEFENDANT. INTENSIVE probation. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge shall refer any application of a defendant seeking placement in the intensive probation program to the office of adult probation for assessment and recommendations and may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year but not more than the unexpired portion of the sentence. . . ." "[General Statutes] Sec. 17-194Í. discharge from hospital of inmates of correctional institutions. The provisions of section 17-192 shall apply to any person committed to such hospital pursuant to sections 17-194d and 17-194e, except that upon such discharge (1) the person shall be returned to any such institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated and (2) the commissioner of correction shall notify the prosecuting official of any court in which any such person has criminal charges pending against him." "[General Statutes] Sec. 54-125. PAROLE. Any person confined for an indeterminate sentence, after having been in confinement under such sentence for not less than the minimum term, or, if sentenced for life, after having been in confinement under such sentence for not less than the minimum term imposed by the court, less such time as may have been earned under the provisions of section 18-7, may be allowed to go at large on parole in the discretion of the panel of the board of parole for the institution in which the person is confined, if (1) it appears from all available information, including such reports from the commissioner of correction as such panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law and (2) such release is not incompatible with the welfare of society. Such parolee shall be allowed in the discretion of such panel to return to his home or to reside in a residential community center, or to go elsewhere, upon such terms and conditions, including personal reports from such paroled person, as such panel prescribes, and to remain, while on parole, in the legal custody and control of the board until the expiration of the maximum term or terms for which he was sentenced. Any parolee released on condition that he reside in a residential community center may be required to contribute to the cost incidental to such residence. Each order of parole shall fix the limits of the parolee's residence, which may be changed in the discretion of such panel. Within one week after the commitment of each person sentenced for more than one year during any criminal term of the superior court, the state's attorney of each county and judicial district shall send to the board of parole the record, if any, of such person. In the case of an inmate serving a sentence at the John R. Manson Youth Institution, Cheshire, or at the Connecticut Correctional Institution, Niantic, the board of parole shall establish, by rule, the date upon which said board shall notify the inmate that his eligibility for parole will be considered. At any time prior thereto the commissioner of correction may recommend that parole be granted and, under special and unusual circumstances, the commissioner may recommend that an inmate be discharged from the institution." Public Acts 1980, No. 80-442, § 9 and 10 provide: "Sec. 9. Subsection (a) of section 53a-35 of the general statutes is repealed and the following is substituted in lieu thereof: "(a) [A] FOR ANY FELONY COMMITTED PRIOR TO JULY 1,1981, THE sentence of imprisonment [for a felony] shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d). "Sec. 10. (NEW) For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court . . . ." The defendant was sentenced on January 9, 1985, and our decision in State v. O'Neill, 200 Conn. 268, 511 A.2d 321 (1986), was released on June 24, 1986.

It appearing that the plaintiff in the above-entitled case has failed to prosecute its appeal from the Court of Common Pleas in New Haven County with proper diligence, it is, under Practice Book § 696, ordered by. the Supreme Court, suo motu, that the appeal be and hereby is dismissed unless the plaintiff files its brief on or before January 20,1975.

Callahan, J. The plaintiff, the Watertown Police Union Local 541, AFSCME, AFL-CIO, appeals from the judgment of the Superior Court denying its application, brought pursuant to General Statutes § 52-418 (a), to vacate an arbitration award. On appeal the plaintiff claims that the arbitration board exceeded its authority because the award it rendered was in contravention of public policy and the trial court, therefore, erred in refusing to vacate it. We find no error. The following facts, disclosed by the record, are relevant. The named defendant, the town of Watertown (town), and the plaintiff entered into a labor contract on October 31, 1984, in which they designated the codefendant, the Connecticut board of mediation and arbitration (board), as the arbitrator empowered to resolve disputes between them. The contract also addressed the standards by which the town could discharge union members. Pertinent to our discussion are article VI, § 8 of the contract which applied specifically to probationary employees and stated that such employees "may be terminated by the Town in its sole discretion for any reason whatsoever," and article XIII, § 1 which was a general provision providing that "fn]o employee covered by this Agreement shall be discharged . . . except for just cause, and the Town shall be required to prove, beyond a reasonable doubt, that just cause exists in those instances." In February, 1985, the town discharged Michael Thompson, a probationary police officer. The plaintiff, claiming the discharge was not justified, grieved the town's action to arbitration. After an arbitration hearing on March 5,1986, the board, in a written decision, cited the following findings of fact concerning Thompson's discharge: On January 5, 1985, Thompson was assigned to a patrol car with a part-time police officer. Because he was still in training at the police academy and the town did not want him involved in court appearances which would interfere with his training, Thompson's supervisor, Sergeant James Sheehan, ordered him "not to make any motor vehicle stops." Contrary to this order, Thompson did make a motor vehicle stop during his tour of duty that night. In addition, when Thompson made the stop, he failed to radio a "signal seventeen" into police headquarters which is a required procedure designed to protect officers by keeping the police department apprised of their whereabouts. Shortly thereafter, Thompson was discharged by the town under the provisions of article VI, § 8 of the contract pertaining to probationary employees. The reasons cited by the town for discharging Thompson were both his failure to follow the orders of a superior and his violation of a routine police procedure. The plaintiff grieved Thompson's discharge arguing that article VI, § 8 of the contract must be read in conjunction with article XIII, § 1, thereby requiring the town to show just cause for the discharge of a probationary employee. Based on its reading of the contract, the plaintiff claimed that the town had failed to meet its burden of showing just cause for dismissing Thompson and that his discharge was, therefore, in violation of the contract. Because the parties disagreed as to the relevant contract provision to be applied, they were unable to reach an agreement on the issue to be submitted to the board. The board decided to reject the plaintiff's interpretation of the contract, stating that Thompson, a probationary employee, was not entitled to the protection of the "just cause" standard. It then adopted the town's formulation of the issue and framed the submission as follows: "[Wjhether the discharge of Michael Thompson was consistent or in violation of Article VI, Section 8 [of the labor contract]." Citing Thompson's failure to follow the orders of his superior, the board rendered an award in favor of the town stating that "there was a reason for [his] termination and that [because he was a probationary employee] the Town did, under Article VI, Section 8 have the right in its sole discretion to terminate [him]." The plaintiff subsequently applied to the Superior Court to vacate the board's award. In support of its application to vacate, the plaintiff argued that the board had exceeded or imperfectly executed its powers in violation of § 52-418 (a) (4) both in framing the issue, because it "prejudged the merits of the dispute and precluded, ab initio any possibility of relief to be awarded to the plaintiff," and in rendering an award that sanctioned the disciplining of an officer who did not follow an order of his superior that is against public policy. On March 24, 1987, the trial court issued a memorandum of decision in which it rejected both of the plaintiff's claims. The court concluded that the board's adoption of the town's version of the issue, disregarding the "just cause" provision set out in article XIII, § 1 of the contract, was proper because any other formulation of the issue "would render Article VI, Section 8, surplusage." In rejecting the plaintiff's second claim that the board's decision countenanced an order contrary to public policy, the trial court distinguished the facts in this case from those of cases in which awards had been vacated as against public policy because they licensed serious violations of the law, and held that "as a pragmatic matter police departments do, and probably have to, adopt policies of selective enforcement when it comes to relatively minor failures to conform to motor vehicle laws, and I simply cannot buy the view that such a restraint on Thompson rises to the level of a violation of public policy." On May 4, 1987, the plaintiff appealed the decision of the trial court to the Appellate Court. The plaintiffs claim on appeal is that the board exceeded its powers in violation of § 52-418 (a) (4) in that its award sanctioned the order of Sheehan "not to make any motor vehicle stops," and that this order is contrary to public policy. On April 28, 1988, we transferred the case to ourselves pursuant to Practice Book § 4023. Because Sheehan's order does not violate established public policy, we hold that the trial court did not err in refusing to vacate the board's award. "We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes." Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); International Union v. Fafnir Bearing Co., 151 Conn. 650, 653, 201 A.2d 656 (1964); Board of Education v. Local 818, 5 Conn. App. 636, 639, 502 A.2d 426 (1985). "A challenge of the arbitrator's authority is limited to a comparison of the award to the submission." Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987); Board of Education v. AFSCME, supra, 271; Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981); Board of Education v. Local 818, supra. An award, therefore, will normally be vacated only if it fails to conform to the submission, and the party challenging it has the burden of producing evidence sufficient to show that it does not conform to the submission. Bic Pen Corporation v. Local No. 134, supra, 585. " 'Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 [1977].' " Id., 584, quoting Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979); Caldor, Inc. v. Thornton, supra, 340-41. In spite of the general rule that challenges to an arbitrator's authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986); Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); Stamford v. Stamford Police Assn., 14 Conn. App. 257, 259, 540 A.2d 400 (1988); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961). This challenge is premised on the fact that the parties cannot expect an arbitration award "approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them." Stamford v. Stamford Police Assn., supra, 259; Board of Trustees v. Federation of Technical College Teachers, supra, 195. When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is "not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award." Board of Trustees v. Federation of Technical College Teachers, supra. Accordingly, the public policy exception to arbitral authority should be narrowly construed and " '[a] court's refusal to enforce an arbitrator's interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate "some explicit public policy" that is "well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests.' " '[United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 43, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987)]; see W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) . . . . " New Haven v. AFSCME, Council 15, Local 530, supra, 417. The party challenging the award "bears the burden of proving that illegality or conflict with public policy is clearly demonstrated." Id. Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the board's award clearly violates an established public policy mandate. The plaintiff claims that Sheehan's order directed Thompson not to enforce the state motor vehicle laws which directly conflicts with the public policy that requires police officers to have unbridled discretion to protect the safety of the citizens of the community for which they work. The public policy mandate on which the plaintiff relies is allegedly expressed in General Statutes § 54-If (a), entitled "Arrest without a warrant. Pursuit outside precincts," which states in pertinent part that peace officers may act within their jurisdiction and "shall arrest" any person without a warrant who is in the commission of a crime in that jurisdiction. According to the plaintiff, when the history of § 54-If (a) is studied, police officers have a " 'duty to arrest for any offense.' " Viewed in its historical context, the plaintiff claims § 54-If (a) is a sufficient starting point on which to establish a public policy edict. We disagree. Section 54-If (a) has no application to the facts in the present case because Sheehan's order did not prohibit Thompson from making arrests under it. Rather, his order was to make no "motor vehicle stops." (Emphasis added.) Implicit in that order is that Thompson was to make no routine or investigative stops for minor infractions of the state motor vehicle laws. Section 54-If (a) is not a motor vehicle law, but rather, is a criminal procedure statute that is invoked when police officers arrest, without a warrant, those who have committed the serious crimes set out in the state penal code. Had Thompson seen or been asked to respond to a serious crime, Sheehan's order would not have prohibited him from making an arrest pursuant to § 54-lf (a). A perusal of the state motor vehicle laws set out in title 14 of the General Statutes, reveals no statute creating a duty requiring police officers to stop and investigate every person they observe violating the state traffic laws. General Statutes § 14-138 states that the commissioner of motor vehicles may call upon the state police to help aid in enforcing the laws pertaining to motor vehicles and highway use. The statute also states that "[t]he state police shall, upon such request, make arrests in all cases of violations . . . which they witness or upon speedy information thereof." This section would apparently apply to municipal police officers also. See General Statutes § 7-281. To date, however, there is no evidence of a request by the commissioner requiring police officers to make investigative stops or arrests in every instance where they observe a possible minor violation of the motor vehicle laws. . In addition to the absence of any statute or administrative ruling establishing a duty requiring police officers to stop every person they see violating traffic laws, there is no case law setting forth such a policy mandate. While the United States Supreme Court and federal court cases cited by the plaintiff do state that police officers have a duty to preserve law and order, those cases are not on point. Absent a clear contrary policy statement by the legislature or the agencies empowered to enforce the motor vehicle laws in this state, we are inclined to agree with the trial court that as a practical matter, police departments, operating with limited resources, may on occasion adopt policies of selective enforcement in cases involving relatively minor infractions of the motor vehicle laws. Orders, such as the one in the present case, do not hinder an officer in exercising his discretion to carry out his duty to protect the community to the extent that they clearly rise to the status of a violation of established public policy. Finding that the plaintiff has no explicit public policy on which to rely, we are bound by the decision of the board. New Haven v. AFSCME, Council 15, Local 530, supra. We find, therefore, that the trial court did not err in refusing to vacate the board's award. There is no error. In this opinion Shea, Covello and Hull, Js., concurred. General Statutes § 52-418 (a) provides in pertinent part: "vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." In its brief, the plaintiff recites facts beyond those cited by the board in its written opinion. This court, however, is bound by the board's findings of fact. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977) (on appeal courts will not review the evidence presented to an arbitrator). See generally discussion, infra. Prior to the court's ruling, the town filed a motion to strike a portion of the plaintiff's application and a motion for nonsuit. Because the trial court denied the plaintiff's motion to vacate, both of the town's motions were rendered moot. Subsequently, the plaintiff motioned the trial court to open its judgment denying its application to vacate the arbitration award stating that the court prematurely ruled on its motion to vacate and should have ruled only on the town's motion to strike at that time. The Superior Court denied the plaintiff's motion to open on November 19, 1987. In the few cases where arbitration awards have been vacated on public policy grounds it was because they contravened a well defined public policy mandate. See Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986) (awards were set aside pursuant to General Statutes § 54-418 [a] [4] because they were found to be in direct conflict with the provisions of a state statute); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984) (arbitration award set aside that upheld the disciplin ing of a police officer for refusing to falsify an arrest warrant); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961) (arbitration board was held to have exceeded its authority when the award rendered was found to contravene public policy because it called for the reinstatement of an employee who had been convicted under a state statute for gambling on his employer's premises). The plaintiff cites three primary cases. In the first case, Cady v. Dombrowski, 413 U.S. 433, 440-42, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), .a search and seizure case, the plaintiff relies on a general discussion by the United States Supreme Court of the "community caretaking functions" state and local police officers perform. While the court's discussion does indicate that police officers have a great deal of contact with motor vehicles and often make investigative stops, it creates no public policy regarding motor vehicle stops. Also cited by the plaintiff are United States v. Markland, 635 F.2d 174 (2d Cir. 1980), cert. denied, 451 U.S. 991, 101 S. Ct. 2332, 68 L. Ed. 2d 851 (1981), and Thurman v. Torrington, 595 F. Sup. 1521 (D. Conn. 1984), for the proposition that it is a police officer's duty to preserve law and order. Neither of these cases, however, dealt with the enforcement of traffic laws. In United States v. Markland, supra, the court validated a police officer's seizure of a container of alcoholic beverages at the scene of an accident based on his duty to protect society. Thurman v. Torrington, supra, involved a civil rights action in which the plaintiff was assaulted by her estranged husband after the defendant police officer failed to respond to her calls.

Arthur H. Healey, J. The plaintiff brought this negligence action to recover damages for personal injuries he sustained when he fell on a sidewalk allegedly under the control of the defendants. The defendants denied the material allegations of the plaintiff's complaint and filed a special defense in which they claimed that the plaintiff's injuries were caused by his own negligence. The jury were instructed on the doctrine of comparative negligence ; see General Statutes § 52-572h; and returned a verdict for the defendants. From the judgment rendered the plaintiff has appealed, claiming error in the court's denial of his motion to set aside the verdict on the ground that the jury were hopelessly confused concerning the doctrine of comparative negligence. We agree with the plaintiff and order a new trial. At the conclusion of the case, the court instructed the jury on the law of comparative negligence. At no time was any exception taken by either party to the court's instructions to the jury on this subject. After deliberating, the jury returned a verdict that stated: "The jury finds the issues for the defendants William Grünewald and Robert Gillespie. 'We feel both parties are equally responsible.' " Although this verdict was initially accepted by the court, after conferring with counsel, the court vacated the verdict, summoned the jury, and recharged them on the law of comparative negli genee. In that charge, the court made it clear to the jury that if they were to find that each party was equally negligent they "must come in with a plaintiff's verdict, and the plaintiff [would he] entitled to fifty percent of the damages" they would find to he proven. The jury were likewise instructed that if they were to find that the plaintiff's negligence was fifty-one percent or greater then they would he obliged to render a verdict for the defend ants. At the conclusion of this additional instruction the court asked the jury: "Do you understand?" to which they responded: "No." The court then, in the absence of the jury, discussed the matter with counsel and thereafter summoned the jury and reinstructed them on the law of comparative negligence. After additional deliberation, the jury returned a verdict for the defendants. Before accepting the verdict, the court, through the clerk, directed the following question to each of the jurors: "[D]id you find the plaintiff fifty-one percent or more negligent, or did you find the plaintiff fifty percent or less negligent?" Each of the six jurors then responded by saying: "Fifty or less." Defense counsel then stated: "I think the jury is confused." After some discussion with counsel, the court presented to the jury an interrogatory that read: "[I]f you find that both the plaintiff and the defendants were negligent, what percent do you find the plaintiff negligent? What percent do you find the defendant negligent?" The court informed the jury that the total of the percentages had to be one hundred percent. To this interrogatory the jury later responded in writing: "Your Honor, none of the [members of the] jury feels that anyone was negligent in this case. This being the case, it is impossible for us to complete this interrogatory form." The plaintiff then made an oral motion seeking to have the court declare a mistrial in view of the inconsistencies in the verdicts. The court denied this motion and proceeded to poll the jury and to accept the verdict for the defendants. Thereafter, the plaintiff filed a motion to set aside the verdict, which the court denied. In reviewing a trial court's action on a motion to set aside a verdict, the question is whether the trial court clearly abused its discretion. See Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978); Bansak v. Pawelczyk, 173 Conn. 520, 521, 378 A.2d 569 (1977); Spiess v. Traversa, 172 Conn. 525, 528, 375 A.2d 1007 (1977). Although the trial court's decision in this regard is entitled to great weight; Mansfield v. New Haven, 174 Conn. 373, 375, 387 A.2d 699 (1978); Murphy v. Soracco, 174 Conn. 165, 169, 383 A.2d 1350 (1978); where it is clear that the jury could not reasonably and logically have reached the conclusion they did, the court's refusal to set aside the verdict rendered will not be sustained. See Rosenblatt v. Berman, 143 Conn. 31, 37-39, 119 A.2d 118 (1955); cf. Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968) (trial court's decision to set aside verdict sustained where jury could not reasonably and logically have concluded as they did); Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (1960). In this case, the jury's confusion regarding the law of comparative negligence is apparent. In their first verdict for the defendants they stated their belief that the parties were "equally responsible" for the plaintiff's injuries. Such a conclusion would have required a verdict for the plaintiff under the court's instructions and the law of this state. See General Statutes § 52-572h. Under the circumstances, it can hardly be presumed that the jury followed the instructions on the law. See State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1972); State v. Smith, 156 Conn. 378, 383, 242 A.2d 763 (1968). After receiving another charge on comparative negligence, the jury informed the judge that they still did not understand the application of that rule of law. When they returned with their final verdict, after reinstruction, each member responded to the court's oral question in a manner inconsistent with the court's instruction and the verdict they had rendered. To the court's written interrogatory the jury again responded in a manner inconsistent with their own earlier statement that the parties were "equally responsible" for the plaintiff's injuries. Where it is clear that the jury were confused and that the verdict rendered is illogical and unreasonable in light of the instructions given; Rosenblatt v. Berman, supra; the evidence presented; Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959); or the interrogatories addressed; O'Brien v. Connecticut Co., 97 Conn. 419, 422-23, 117 A. 498 (1922); the trial court is obliged to set the verdict aside. See Silvester v. Kerelejza, 158 Conn. 433, 437, 262 A.2d 157 (1969); Bottaro v. Schoenborn, 157 Conn. 194, 197, 251 A.2d 79 (1968). There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. A verdict must not only be intelligible, it must be capable of supporting a judgment. See Barnett Motor Transportation Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 67, 291 A.2d 234 (1971); Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106 (1959). The verdict rendered, although intelligible, clearly could not have supported a judgment for the defendants in view of its patent inconsistency as a matter of law. The supervision which a presiding judge has over a verdict that may be rendered is an essential part of the jury system. See Cables v. Bristol Water Co., 86 Conn. 223, 224, 84 A. 928 (1912). That supervision tends to make jurors more careful in reaching their conclusion. See Cruz v. Drezek, 175 Conn. 230, 242, 397 A.2d 1335 (1978). The court's decision to vacate the verdict was a proper exercise of that supervisory power. "The Court: . . . Now, ladies and gentlemen, the problem with comparative negligence, it's a new concept, and I think there might have been a misunderstanding on your verdict, so I want to explain it to you, and then I want you to go back and let us know what you will do. "The law is in comparative negligence, if you find both sides equally responsible, that means that each is fifty percent negligent. If you find that it is fifty percent, then you must come in with a plaintiff's verdict, and the plaintiff is entitled to fifty percent of the damages which you find. Now, if you find that the plaintiff is fifty-one percent or more responsible, then you come in with a defendant's verdict, but if the plaintiff is fifty percent negligent or less, then you must write in on the plaintiff's form that percentage. It's got to be either fifty, forty-nine, forty-eight, all the way down to one percent. But if you find its equally — they are equally responsible, we take that to mean fifty-fifty. So, I think what I'm going to ask you to do is to go back into the deliberating room, and you will have to decide — redeeide your decision." Although technically the plaintiff's negligence would only have to exceed fifty percent in order for the defendant to prevail, this instruction was a substantially correct statement of the operation of General Statutes § 52-572h which provides in part: "(a) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from injury to persons or damage to property, if such negligence was not greater than the combined negligence of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering. (b) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party." The plaintiff's counsel took exception to the court's decision to reinstruet the jury on the ground that a verdict had previously been rendered in which the jury had stated its conclusion that the parties were equally at fault. At that time he also sought to have the jury indicate, by interrogatory or in the verdict form, the exact percentage of negligence they attributed to the plaintiff. The defendant's counsel stated: "I think what has happened here is the jury has misunderstood the charge . . . and I think your charge hopefully will straighten out the question of comparative negligence." The court declined to grant the plaintiff's motions at that time. Defense counsel pressed the eourt to accept the verdict and the plaintiff's counsel renewed his request to have the jury indicate the percentage of negligence they attributed to the plaintiff.

Bogdanski, J. In May of 1976, the defendant was tried and found guilty of the crime of failure to appear, in violation of § 53a-172 of the General Statutes. He appealed from the judgment rendered, alleging that the trial court erred in denying his pretrial motions, in certain evidentiary rulings, and in its charge to the jury. The defendant also challenges the constitutionality of § 53a-172. The facts leading up to the above offense may be summarized as follows: In July of 1974, the defendant was charged with the crime of arson in the third degree, a felony, and bail was set in the amount of $10,000. A bond was posted and the defendant was released from custody. In May of 1975, the state proceeded to trial in the arson case. After one week of trial during which extensive testimony was taken, lengthy cross-examination was conducted, and an offer of proof as to other fires was made by the state, and before the state had rested its case, the defendant failed to appear in court. The court inquired as to the defendant's whereabouts and was advised by his attorney that neither he nor the defendant's wife knew where he was or the reason for his absence. The court thereupon declared a mistrial over objection by the state. When the defendant subsequently returned to the area, he phoned his bondsman to tell bim that he was back and asked if he would be willing to post bond again if he turned himself in. In that conversation with his bondsman the defendant admitted that he knew he had done wrong by running away but that "things had been building up against him." The defendant thereafter entered a plea of not guilty to the crime of failure to appear and the case was placed on the trial list. When the state indicated that it intended to proceed to trial in the failure to appear case before retrying the arson case, the defendant filed a motion for a sequence of trials, which the court, after a hearing, denied. The defendant claims that he was prejudiced by the court's action in permitting the failure to appear ease to be tried before the arson case. He contends that this sequence of trials enabled the state to use the conviction obtained in the failure to appear ease as evidence of consciousness of guilt in the arson case and that this was more detrimental to him than would have been the use for impeachment purposes in the trial of the failure to appear case of a conviction for arson obtained in the retrial of the arson case. The defendant argues that the trial court therefore abused its discretion in denying his motion for a sequence of trials. The order in which eases are called for trial is within the sound discretion of the court and may be set by the court as the ends of justice and the business before it require. State v. Kelly, 27 N.M. 412, 202 P. 524 (1921); Stenner v. Colorado-Montana Mines Assn., 116 Mont. 261, 149 P.2d 546 (1944). Moreover, the state, in the exercise of its prosecutorial function, has considerable latitude as to how and in what manner it shall proceed against an accused. State v. Villafane, 171 Conn. 644, 664, 372 A.2d 82 (1976). In this case the state indicated to the court that it preferred to proceed first in the failure to appear case because that trial would be less time-consuming, less costly and would require fewer witnesses than the retrial of the arson ease: The trial court found those grounds sufficient to constitute good cause for the state's request. On those facts the court was well within its discretion in denying the motion. The defendant next argues that the court should have suppressed the statements which he made to his bondsman. He claims that the bondsman did not give him his Miranda warnings before talking with him and that the defendant's statements should, therefore, have been excluded. He also claims that his statements to his bondsman should be privileged communications, such as is the ease between attorney and client. Neither argument has merit. At the time that he made the statements the defendant was not in police custody. The person to whom he made the statements was neither a police officer nor a member of the prosecutor's office. Miranda warnings were not, therefore, necessary. In this state, as in most states, communications which are deemed privileged from disclosure are founded upon statutory authority. We find no bondsman-client privilege in the statutes of this state, nor does the defendant point to any authority for such a claimed privilege. Moreover, the exclusionary rule of Miranda, enforcing adherence to the intendment of the fifth amendment, has long been construed as a restraint only upon the activities of a sovereign authority, and not as a limitation upon other than governmental agencies. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 65 L. Ed. 1048 (1921); cf. United States v. Blum, 329 F.2d 49, 52 (2d Cir. 1964), cert. denied, 377 U.S. 993, 84 S. Ct. 1920, 12 L. Ed. 2d 1045 (1964). This court has recently held that incriminating statements made by a defendant are admissible in evidence, whether or not the Miranda warning has been given, when the statements were not made during the course of a "custodial interrogation." State v. Smith, 174 Conn. 118, 120-21, 384 A.2d 347 (1977). This principle has repeatedly been affirmed by decisions of the United States Supreme Court, most recently in Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). Courts in this and other jurisdictions have often held that where statements are made to persons who are not law enforcement officers or their agents, there is no "custodial interrogation" within the meaning of Miranda, and therefore such statements need not be suppressed. See United States v. Antonelli, 434 F.2d 335, 337 (2d Cir. 1970). The trial court therefore did not err in denying the motion to suppress. The defendant further claims that the conviction should be reversed on the ground that the trial court "lost jurisdiction" because the surety bond, for the violation of which he was charged, was defective in that it did not contain the appropriate certification or acknowledgement. There is no question but that the court had jurisdiction over the person of the defendant. Nor can it be seriously claimed that the court lacked the power to hear felony cases, such as was involved in the prosecution under § 53a-172 of the General Statutes. The defendant's claim, though framed as a jurisdictional issue, is in reality more in the nature of an evidentiary objection and, as such, should have been raised at trial by the defendant. At trial the defendant objected to the admission into evidence of the appearance bond only on the grounds that it was not admissible as a judicial record. As to that issue, the record reveals that the appearance bond was in the defendant's court file, and was identified by the clerk as a business entry prepared and kept in the normal course of business by the clerk's office of the Superior Court. That foundation was clearly sufficient to warrant the admission of the bond into evidence as a judicial record. See Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966) (judicial notice taken of file in declaratory judgment action); Wawrzynowicz v. Wawrzynowicz, 164 Conn. 200, 202, 319 A.2d 407 (1972) (court took judicial notice in declaratory judgment action that judgment in divorce action had assigned bank account). The defendant claims that there was error in the court's instruction on the definition of "wilfulness" as that term is used in § 53a-172. The record reveals that this issue was not raised nor ruled upon by the trial court. This court will not review claimed errors on the part of the trial court unless there has been a compliance with the provisions of Practice Book § 3063, effective July 1, 1978. See State v. Evans, 165 Conn. 61, 65, 327 A.2d 576 (1973). The defendant's final claim involves a challenge to the constitutionality of § 53a-172. The defendant argues that § 53a-172 is inconsistent with our decision in State v. Parham, 174 Conn. 500, 391 A.2d 148 (1978). We do not agree. In Parham, supra, we held that a defendant who voluntarily absents himself from trial may have waived his con stitutional right to he present at trial. Section 53a-172, as previously noted, makes it a felony for a defendant who has been released on bond to fail to appear when legally called upon to do so. We see no inconsistency between this statute and our holding in Parham. The defendant in this ease was being tried for failure to appear when legally called according to the terms of his bail bond; he was not being tried for failure to be present at trial. The holding in Parham is, therefore, inapplicable on the facts of the present case. In attacking the constitutionality of the statute the defendant bears a heavy burden of proof. The rule is that every intendment in favor of constitutionality will be made by the court and that invalidity must be established beyond a reasonable doubt. State v. Rao, 171 Conn. 600, 602-603, 370 A.2d 1310 (1976); State v. Clemente, 166 Conn. 501, 506, 353 A.2d 723 (1974). The defendant concedes, as he must, that the legislature has the power to make criminal a defendant's failure to live up to his promise to appear in court when legally called. "To be constitutionally valid, a regulation made under the police power must have a reasonable relation to the public health, safety, morality and welfare." (Emphasis added.) State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477 (1956); Figarsky v. Historic District Commission, 171 Conn. 198, 207, 368 A.2d 163 (1976). That the state has a valid interest in assuring the smooth functioning of its courts cannot seriously be questioned. Nor can it seriously be claimed that the present statute is not reasonably related to that interest. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-172. failure to appear in the first degree: class d felony, (a) Any person who, while charged with the commission of a felony and while out on bail or released under other procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the first degree, (b) Failure to appear in the first degree is a class D felony." "[Practice Book, 1978] Sec. 3063. errors considered. The supreme court shall not be bound to consider any errors on an appeal unless they are specifically assigned or claimed and unless it appears on the record that the question was distinctly raised at the trial and was ruled upon and decided by the court adversely to the appellant's claim, or that it arose subsequent to the trial."

Bogdanski, J. The defendant was charged with the crime of murder and found guilty after a trial to a three-judge panel. On this appeal the defendant claims that the court erred (1) in concluding that he failed to establish his defense of extreme emotional disturbance; (2) in concluding that he acted with the intent to cause death; and (3) in the instruction to the grand jury that "every person is presumed to intend the natural and necessary consequences of his acts." Some background review is in order: On December 19, 1974, the grand jurors for Hartford County returned a true bill of indictment charging the defendant with the crime of murder in violation of Public Acts 1973, No. 73-137, § 2, later codified as General Statutes § 53a-54a. The defendant elected to be tried by a jury of twelve. On May 16, 1975, the jury returned a guilty verdict from which the defendant appealed. This court ordered a remand for a new trial. State v. Zdanis, 173 Conn. 189, 377 A.2d 275 (1977). Thereafter, the defendant withdrew his jury election and chose to be tried by a three-judge panel. He thereafter filed a notice of intent to rely upon the defense of mental illness. The defendant first claims that the evidence establishes that he acted under the influence of extreme emotional disturbance and that the court erred in concluding otherwise. Section 53a-54a of the General Statutes provides that: ". . . it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be . . . ." As with other affirmative defenses, the defendant has the burden of proof by a fair preponderance of the evidence. General Statutes § 53a-12(b); State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979). In determining whether the defendant has established the affirmative defense of an extreme emotional disturbance by a fair preponderance of the evidence as a mitigation of murder to manslaughter, the trier of fact must find that: (a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions. Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act. State v. Elliot, supra, 9-10. The defendant does not contest the fact that the court had before it sufficient evidence to find that he caused the death of Pamela O'Neill on the night of October 21, 1974. Rather, the thrust of his argument is that the court should have accepted his affirmative defense that his act should have been reduced to manslaughter in the first degree because of extreme emotional disturbance. Although this case presents an unusual procedural posture where a three-judge panel serves as the finder of facts (instead of a jury) and where the burden is on the defendant to prove his affirmative defense, the normal rules for appellate review of factual determinations apply and the evidence must be given a construction most favorable to sustaining the court's verdict. State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Moreover, the question is whether upon the facts established and the inferences drawn therefrom the fact-finder could have reasonably concluded that the cumulative effect of the evidence failed to establish that the defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse. In sum, except where an abuse of discretion is clearly shown, the conclusion of a trial court should be affirmed so long as it is a reasonable one on the basis of the evidence adduced and the inferences drawn therefrom. The evidence before the court included the following: Pamela O'Neill, 8 years of age, was the child of the marriage of Barbara Meny and Lawrence O'Neill. After that marriage was terminated by divorce, Barbara Meny O'Neill married the defendant and the couple resided together with Pamela in an apartment at 1465 Willard Avenue, Newington. The defendant had also been previously married. After his divorce from that prior marriage, the defendant lived for a time with the family of his niece, Laurie. He developed a close affection for his niece. Laurie subsequently developed leukemia. On October 18, 1974, the defendant and his wife Barbara journeyed to Philadelphia where his niece lay dying. The defendant was quite upset by his niece's condition. On October 20, 1974, the defendant and Barbara returned to Connecticut. There was testimony that Mrs. O'Neill saw the defendant on the afternoon of October 21, 1974, at Advo-Systems in Windsor where she worked; that the defendant was in the cleaning business and was going to clean the Advo building that night. At about 4:45 p.m. she brought the defendant to her boss's office to discuss the cleaning job. Thereafter, the defendant walked his wife to her car and told her he would be home about 9:30 that evening. Mrs. O'Neill then picked up her daughter at the home of a friend and proceeded to her parents' home in West Hartford. They later returned to the apartment in Newington and, at about 8:30 p.m., she put Pamela to bed and awaited the defendant's return. After a while, she heard the door of the apartment open. She got np and approached the hallway where she saw the defendant. She saw that he was holding a gun and she said, "[w]hat are you doing with the gun? I thought you had sold it." She then saw the defendant's finger on the trigger. The defendant said, "[d]on't worry" and made a move towards her. When the defendant approached her with the gun, Mrs. O'Neill ran out of the apartment building. Running outside, she looked back and saw the defendant behind her with the gun raised to his shoulder pointing it at her. She then heard an explosion and felt something pierce her back. She crawled to an adjacent apartment and told the occupants "[h]e killed me . go back and get my baby. She is asleep in the bedroom." The defendant testified that he watched the first half of a Monday night football game in a local bar and that when he got home, his wife gave him a hard time about being so late; that he turned to one side and ignored her complaints. When he turned to her again, he saw his wife naked with a shotgun in her hands. He approached her and asked her what she was doing. She answered that she was tired of his staying out late at night and never being at home, and that as a result of all this, she was going to shoot herself. The defendant then reached for the gun. His wife pulled backwards towards Pamela's room. The defendant lunged to grab the gun and, during the struggle that ensued, the gun went up in the air and fired twice, both of which shots hit Pamela. The defendant further testified that he finally wrested the shotgun from his wife and started to run after her. He did not remember what happened after that. He did not contest the fact that he shot his wife outside the apartment building and that he also shot himself. The defendant's rendition of the factual sequence of events was contradicted by the testimony of two witnesses, a neighbor and a police officer who arrived on the scene soon after the shooting of Mrs. O'Neill. The neighbor testified that he heard two shots being fired in the Zdanis' apartment after Mrs. O'Neill had been wounded. The police officer testified that he heard three shots being fired in the apartment after Mrs. O'Neill had been shot, i.e., the two which killed Pamela and the one fired, presumably, in an unsuccessful suicide attempt. If the defendant's testimony were to be credited, it would suggest that it was Mrs. O'Neill who was emotionally upset, not he, and that the gun had twice gone off accidentally. Since the burden of proving that he acted only because of his extreme emotional disturbance was on the defendant, the claim of an accidental shooting as well as the claim of action under the influence of extreme emotional disturbance cannot be reconciled. Either the defendant was upset about the impending death of his niece, his marriage problem and the possible suicide by his wife, or he was not. If the shooting of Pamela took place accidentally, the extreme emotional disturbance of the defendant would seem irrelevant. As to the defense of extreme emotional disturbance, the expert psychiatric testimony was of utmost importance. The state called Dr. Robert Doherty, a psychiatrist, who testified that after an examination of the defendant, it was his professional opinion that the defendant was not under the influence of extreme emotional disturbance. Dr. Walter Borden, the defendant's witness, testified that the defendant was not psychotic but was in a borderline state, having difficulty with impulse control and reaction to anxiety or frustration. Cross-examination, however, revealed that much of Borden's determination as to extreme emotional disturbance was predicated on what the defendant had related to him as to the factual sequence of events; that in addition to the undisputed fact that the defendant did have a close relative who was about to die and that he had ingested an undetermined amount of alcohol and valium that day, Borden also placed great reliance on what the defendant had told him about his impulsive response to his wife's alleged suicide attempt. In sum, the defendant's psychiatric testimony could reasonably be rejected by the court as being based on the psychiatrist's assessment of facts which the trial testimony could reasonably have shown to have been erroneous. In the final analysis, however, the ultimate determination of the presence or absence of extreme emotional disturbance was one of fact for the trier, aided by the expert testimony of both sides, but left to its own factual determinations. See State v. Elliot, supra. On the basis of the evidence before it, we conclude that the court did not err in refusing to find that the defendant had satisfied his burden on this issue. The defendant next claims that the court erred in finding that the state established that the defendant acted with intent to cause death. Section 53a-54a(a) of the General Statutes requires that the state prove beyond a reasonable doubt that the defendant acted with the specific intent to cause death. State v. Holley, 174 Conn. 22, 25, 381 A.2d 539 (1977). Intent is a mental process which ordinarily can be proven only by circumstantial evidence. An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. See State v. Holley, supra. The pre-1979 law in Connecticut was that a defendant was presumed to intend the ordinary consequences of his voluntary acts. The constitutional infirmities of this rule were exposed in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979). Those cases held that a jury instruction that is worded in terms of a "presumption" and not an "inference" without a clear instruction on the legal effect of the presumption is unconstitutional. The instruction invalidated in Sandstrom read as follows (p. 517): "The law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom demonstrates that the impact upon the minds of a jury of such an instruction may be either to establish the defendant's intent as a conclusion, or to shift the burden of proof on the element of intent to the defendant. The defendant contends that because there was insufficient circumstantial evidence of intent, the court must have applied the constitutionally impermissible presumption to find the necessary intent. The claim lacks merit. The verdict rendered by the three-judge panel was a general one. The panel, of course, would not receive any instructions on the law. The defendant has not pointed to anything in the transcript to show that the court applied the impermissible presumption. Moreover, a review of the United States Supreme Court's rationale in Sandstrom indicates that the emphasis throughout Justice Brennan's opinion was on the coercive impact of the charge on the jury. There was no charge here and no jury. A review of the circumstantial evidence supports the finding of intent. The finding of intent is a reasonable inference from the testimony of Mrs. O'Neill, and from the testimony of the shot sequence by the neighbor and police officer, i.e., two shots close in time coming from the victim's bedroom after the defendant had already wounded his wife. We conclude that the court did not err in finding the requisite intent. Lastly, the ease of State v. Stepney, 181 Conn. 268, 435 A.2d 701 (1980), recently decided by this court, is dispositive of the claim that the court erred in instructing the grand jury. There is no error. In this opinion the other judges concurred.

Parskey, J. The plaintiff landlord brought this action seeking to recover damages, including reletting costs and rent due for the balance of a five year lease, arising out of a breach of a lease of commercial premises in the Danbury Shopping Center by the defendant tenant. The lease agreement between the parties provided for a five year term commencing June 1, 1971, with an option for the defendant to renew for an additional five years. The defendant could assign the lease with the prior written consent of the landlord. On September 23, 1973, the defendant proposed to assign the lease, remaining liable under the terms of the lease for the balance of the original five year term but not for the renewal period in the event the new tenant exercised the renewal option. The prospective tenant would not rent the premises without the option. Although the plaintiff was willing to accept the proposed tenant for the balance of the five year term, it did not wish the proposed tenant to have the renewal option contained in the original lease. Negotiations broke down on this point; the defendant vacated the premises shortly thereafter and ceased paying rent. The store was not relet until July 1, 1975. The plaintiff thereafter commenced this action against the defendant for breach of lease seeking $18,333.36 for twenty months rent, $3492 for a broker's commission, $350 for repainting the store and $300 to clean the carpet for a total of $22,475.36. The tenant defended primarily on the basis of the landlord's breach of lease and failure to mitigate damages stemming from the failure to accept the proposed tenant in 1973. The trial court concluded that the plaintiff could not recover rent or reletting expenses but did award $650 in renovation costs, which were disputed. From this decision, the plaintiff has appealed. Although other avenues were available, the plaintiff chose to bring an action for damages for breach of the lease, thereby manifesting an intention to terminate the lease. Sagamore Corporation v. Willcutt, 120 Conn. 315, 318, 180 A. 464 (1935). In these circumstances it was entitled to recover those damages which would naturally flow from a total breach of the lease. Id. It was also under an obligation, however, to minimize the damages occasioned by the defaulting tenant's breach of contract. Willametz v. Goldfeld, 171 Conn. 622, 627, 370 A.2d 1089 (1976); Brown v. Middle Atlantic Transportation Co., 131 Conn. 197, 199, 38 A.2d 677 (1944). The duty to mitigate damages did not require the plaintiff to sacrifice any substantial right of its own; Eastern Sportswear Co. v. S. Augstein & Co., 141 Conn. 420, 425, 106 A.2d 476 (1954); or to exalt the interests of the tenant above its own. Id.; Raff Co. v. Murphy, 110 Conn. 234, 243, 147 A. 709 (1929). It was required to make reasonable efforts to minimize damages. What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier. Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 442, 288 A.2d 415 (1971). Since the general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed; Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 404-405, 365 A.2d 1086 (1976); in assessing the reasonableness of the landlord's efforts to mitigate damages the trier may consider whether the landlord was justified in refusing to rent the demised premises to a prospective tenant who was otherwise satisfactory and who would have put him in at least as good a position as if the original contract had been fully performed. Under the terms of the lease the tenant could not assign or sublet its interest without the prior written consent of the landlord. The plaintiff correctly argues that under this provision it could refuse to consent to an assignment and the reasons for its action were immaterial. Robinson v. Weitz, 171 Conn. 545, 549, 370 A.2d 1066 (1976). The plaintiff then argues that to prevent it from recovering rent because of its refusal to rent the leased premises to the proffered assignee compelled it to permit the very assignment which it had an absolute right to reject. This argument, while superficially appealing, misses the point because the landlord still need not accept the prospective tenant. It can relet the premises to a tenant of its own choice at a rent greater than that which the proffered tenant was willing to pay. Therefore, while the holding of this case has the practical effect of limiting the landlord's right to refuse an assignment, it does not render the right meaningless. Moreover, given the posture of the present case, we are not concerned with either the tenant's right to assign or the landlord's right to refuse to consent to an assignment. The proper focus in the present case is on the landlord's duty to minimize damages. In weighing the reasonableness of the landlord's conduct under these circumstances the trial court was justified in concluding that it was unreasonable for the landlord to reject an offer which would have placed it in statu quo ante. See cases collected in annot., 21 A.L.R.3d 534, 592-94. There is no error. In this opinion the other judges concurred.

Spallone, J. This is a consolidated appeal involving three separate contract actions against a common defendant. The trial court rendered judgment for the plaintiff in each of the actions, and the defendant appealed from each of the judgments. We find error in the second case and no error in the first and third cases. The following facts are not in dispute and are common to all three appeals. The defendant is a partner in a general partnership (D & T Construction Company) which was, at the time of the matter in question, engaged as a general contractor. The plaintiff in the first case, Crest Plumbing and Heating Company (Crest), is a plumbing contractor. The plaintiff in the second case, Mac's Car City, Inc. (Mac's), is a new and used car dealership in Berlin, Connecticut. The plaintiff in the third case, Howard Asal Construction Company, Inc. (Asal), is a paving contractor. Pursuant to a written building construction contract dated October 5, 1978, the defendant agreed to construct a building to house Mac's dealership. Thereafter, the defendant entered into agreements with Crest and Asal to perform subcontracting work on that project. Disputes arose between the defendant and each of the plaintiffs which ultimately resulted in each plaintiff filing a lawsuit against the defendant. The defendant filed an answer and counterclaim in each of the three lawsuits. All three cases were consolidated and tried together to the court. After trial, the court, Shaughnessy, J., rendered judgment for the plaintiff on both the complaint and the counterclaim in each case, from which judgments the defendant has filed three appeals. The appeals were consolidated and this opinion will serve all three. Appeal No. 3101-Crest Plumbing & Heating Co. v. DiLoreto Pursuant to a written contract between the defendant and Crest dated November 3,1978, Crest agreed to perform plumbing work on the project. Upon completing the required performance, the defendant was indebted to Crest in the amount of $2090, which he refused to pay. Accordingly, Crest commenced a contract action against the defendant to recover the unpaid balance. As a result of the suit brought by Mac's against the defendant, the defendant counterclaimed against Crest seeking damages for alleged unfinished and improper work. After a trial, the trial court rendered judgment for Crest on the complaint and on the defend ant's counterclaim. The court awarded Crest the claimed $2090, plus interest equal to $752.40, for a total judgment of $2842.40. The defendant has appealed from the judgment, claiming that the trial court erred in concluding that Crest performed its agreement with the defendant. The defendant asserts that the court's conclusion was inconsistent with its conclusion in Mac's Car City, Inc. v. DiLoreto, where the court found that the plumbing work was not done in accordance with the agreement between Mac's and the defendant. We find no merit in this contention. The defendant has failed to establish that Crest's agreement with the defendant was identical in relevant part with the defendant's agreement with Mac's. Without such proof, we cannot find that the court's conclusions in the two cases were inconsistent. See also Ryan v. Mill River Country Club, Inc., 8 Conn. App. 1, 5-6, 510 A.2d 462 (1986). The court's conclusion that the plaintiff properly performed its obligation under the contract is supported by the evidence and is not clearly erroneous. Practice Book § 4061; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Buddenhagen v. Lugue, 10 Conn. App. 41, 45, 521 A.2d 221 (1987). Consequently, we find no error. Appeal No. 3102-Mac's Car City, Inc. v. DiLoreto This appeal involves a suit for breach of a contract for the construction of premises to be used by Mac's as an automobile dealership. The contract was prepared by the defendant and essentially provided that the defendant would construct, ready to use, a building and parking facilities to accommodate a functioning automobile dealership. The construction was to be completed within 100 days and called for total payment of $256,000. There were two approved change orders, bringing the total due for the job to $263,380. Up to the time of the defendant's default, the defendant had been paid $236,400, plus $4000 to a subcontractor for a total of $240,400. Construction delays eventually resulted in the defendant's default under the contract. Consequently, Mac's completed the construction on its own. On June 5,1980, Mac's commenced a breach of contract action against the defendant, alleging incomplete and improper workmanship. The defendant counterclaimed for the balance due him under the contract. After a trial, the court rendered judgment in favor of Mac's on its complaint and on the defendant's counterclaim. The court awarded cost of completion damages in the amount of $46,469.33, inclusive of attorney's fees equal to $6750, plus interest from July 1,1979 to March 1, 1984, for a total award of $63,817.88. The defendant has appealed and has claimed that the trial court erred (1) in determining the plaintiffs damages, (2) in awarding the plaintiff prejudgment interest, (3) in rejecting the defendant's counterclaim for the cost of extra work performed, (4) in refusing to admit into evidence the periodic progress reports of the construction mortgagee's engineer, and (5) in failing to conclude that the measure of the defendant's performance, and therefore his right to payment, was established by the approval of the periodic payment requisitions. We agree with the defendant's fourth claim of error, that the court erred in refusing to admit the reports of the mortgagee's project engineer as business records under General Statutes § 52-180. The facts pertinent to this claim are as follows. American National Bank, the construction mortgagee, entered into an agreement with Alfred Wilner, Inc., a corporation engaged in the business of construction management. Pursuant to this agreement, Alfred Wilner, Inc., periodically sent an engineer or architect employed by it to the job site to make an inspection of the work in progress in order to determine if the work conformed with the approved plans and specifications governing the defendant's performance. During the course of construction, Alfred Wilner, Inc., sent six reports to the mortgagee bank. The bank, through the testimony of one of its officers, stated that it was in the bank's general course of business to keep a record of the reports and that the reports were of field inspections made by an engineer employed by the bank. When the defendant attempted to introduce the reports into evidence, the trial court sustained the plaintiff's objection, holding that because the reports were not business records of the bank but were business records of someone else, they were inadmissible under General Statutes § 52-180. We disagree. The business record exception to the hearsay rule is codified in General Statutes § 52-180. Section 52-180 (a) provides that "[a]ny writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter." In the present case, the trial court excluded the engineer's reports because they were prepared by a party other than the organization whose business records they were purported to be. There is no requirement in § 52-180, however, that the documents must be prepared by the organization itself to be admissible as that organization's business records. All that is required is that it be in the regular course of the business to make the "writing or record." We believe the keeping of a report in a bank's file that serves as a basis of whether the bank will pay out money under a loan agreement satisfies the statutory requirement of "record" and that such a record could reasonably be found to have been made in the course of the bank's business. We hold that the trial court erred in holding that the reports Alfred Wilner, Inc., made to the bank were inadmissible as business records of the bank because they were business records of another organization. We do not hold that the trial court could not have found that the keeping of such reports was not in the bank's general course of business. See Orzechowski v. Higgins, 146 Conn. 463, 466, 152 A.2d 510 (1959). The court, however, based its ruling on the fact that the record was the business record of a party other than the bank. The reason given by the court was erroneous, and the record does not clearly establish an alternative ground of inadmissibility on which the trial court's ruling should be sustained. Further, had the report been admitted, the court was under no obligation to accept the opinions expressed therein. The trier may accept or reject the testimony of a witness, offered by one party or the other, expert or otherwise, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); Filipetti v. Filipetti, 2 Conn. App. 456, 459, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). The trial court, however, by erroneously excluding the evidence, was denied the opportunity to determine what weight should be given the evidence. We cannot say that the failure to admit the reports was harmless error because, in content, the reports seem to contradict the testimony and other evidence offered by the plaintiff. While the plaintiff claims that the reports were reports of the bank or its agent, and were not binding on the parties, this contention misses the point. The relevancy of the reports depends not on whether they were binding on the parties, but on whether they provided probative evidence as to whether certain of the contract specifications had been properly performed. The plaintiff does not contend that the engineer's reports are unrelated to the disputed contractual matters in this case. Because we must remand for a new trial, we need not discuss the other claims of error made by the defendant. Appeal No. 3103-Howard Asal Construction Co. v. DiLoreto Pursuant to a contract dated April 24, 1979, Asal agreed to pave 40,000 square feet at a price of $10,000 and to provide additional paving as requested at $.22 per square foot. Asal also orally agreed to rent equipment to the defendant and provide top soil as needed. Upon completion, the defendant was indebted to Asal in the amount of $8384.25, which he refused to pay. Asal brought suit against the defendant for breach of contract. The defendant denied liability for any ser vices provided during June of 1979. As a result of the suit brought by Mac's against the defendant, the defendant counterclaimed against Asal for improper workmanship. After a trial, the court rendered judgment for the plaintiff on the complaint and on the defendant's counterclaim. The court awarded Asal damages of $8034.25, plus interest from June 1,1979 to March 1, 1984, at 1 percent per month pursuant to the contract, and attorney's fees equal to $4400, for a total judgment of $16,933.43. Subsequently, the parties agreed to reduce the interest by $160.69 which resulted in a final judgment of $16,772.74. The defendant claims that the trial court erred (1) in imposing liability upon the defendant for additional paving services and for equipment and materials furnished during June, 1979, (2) in awarding Asal prejudgment interest, and (3) in awarding Asal attorney's fees. We find no merit in these claims. The defendant's first claim of error implicates the factfinding function of the trial court. The record supports the findings of facts and the legal conclusions drawn by the trier. We will not retry the case. Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986); Pandolphe's Auto Parts, Inc. v. Manchester, supra. In his second claim, the defendant contends that the trial court erred in awarding the plaintiff prejudgment interest. "The allowance of interest as an element of damages is . . . primarily an equitable determination and a matter lying within the discretion of the trial court." Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). We find no abuse of discretion here. See H. B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 348, 446 A.2d 1 (1982); Wells Laundry & Linen Supply Co. v. Acme Fast Freight, Inc., 138 Conn. 458, 463, 85 A.2d 907 (1952). Nor can we find error in the court's calculation of the interest award. The defendant asserts that the court erred by awarding interest on the entire judgment at a rate of 1 percent a month, the amount provided by the written contract. The defendant contends that because the plaintiff performed work for the defendant under both an oral and a written contract, the court could only legally award interest at 1 percent a month on those damages that resulted from a breach of the written contract, and could only award the lower statutory rate of interest on those damages that resulted from a breach of the oral contract. See General Statutes § 37-3a. The trial court, however, never specified whether any of the $8032.25 damage award resulted from a breach of the oral contract. It is the appellant's responsibility to provide an adequate record for review. Practice Book § 4061; Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1052 (1986). Without an adequate record specifying whether any part of the damages award was attributable to the oral contract, we cannot say that the trial court's interest award was clearly erroneous. In his third claim, the defendant contends that the trial court erred in its award of attorney's fees. The trial court based its award on a contractual provision providing that "all costs of collection, including attorney's fees, will be added, if necessary to place this account for collection." At trial, the plaintiff introduced evidence as to reasonable attorney's fee for an attorney in the relevant geographical area, but introduced no evidence as to the actual fees incurred. The defendant claims that the court erred in awarding attorney's fees in the absence of such evidence. We agree that the trial court could reasonably construe the term "attorney's fees" in the parties contract as a provision for "reasonable attorney's fees," thereby permitting it to base its award on factors other than the actual expense incurred by the prevailing party. In cases where there is a contractual provision allowing "reasonable attorney's fees," our Supreme Court has required that there be an evidentiary showing of reasonableness, with the award to be based on a number of considerations not limited to the actual fee incurred by the party. See Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982). We construe the term "attorney's fees" as an award for "reasonable attorney's fees" in this case because the term "reasonable" is implied by law even when it is absent in the contractual provision. Cf. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982) (contract clause providing for award of attorney's fees "incurred" requires reimbursement of actual expenses, provided amount is reasonable). While the defendant claims that an award of attorney's fees not based on the plaintiff's actual expenses could result in excess damages to the plaintiff, the plaintiff's right to recovery derives from its contract and not from a claim for damages. Storm Associates, Inc. v. Baumgold, supra, 245; Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978). In such cases, the method of determining damages used by the trial court is permissible. Piantedosi v. Floridia, supra. In Appeal No. 3101, Crest Plumbing & Heating Co. v. DiLoreto, there is no error. In Appeal No. 3102, Mas's Car City, Inc. v. DiLoreto, there is error, the judgment for the plaintiff on both the complaint and the counterclaim is set aside and the case is remanded for a new trial. In Appeal No. 3103, Howard Asal Construction Co. v. DiLoreto, there is no error. In this opinion the other judges concurred. While two of the plaintiffs brought suit against other defendants in addition to Paul DiLoreto, only DiLoreto defended the cases at trial, and only DiLoreto has appealed. The agreement provided, in pertinent part, that Alfred Wilner, Inc., would provide services as follows: "During construction the job will be visited no less than once a month by an engineer or architect in our employ. A written report will be prepared each month that includes the following: "1. A trade-by-trade description of the job indicating the status of completion. "2. Confirmation by our inspector that, to the best of our knowledge, the work is proceeding in general accordance with approved plans and specifications based on our periodic visits to the site. In the absence of such compliance known to us, we may recommend corrective action. "3. Examination of test reports available to us affecting such items as compaction of fill materials, structural steel, pile logs, concrete strengths, etc. Substantial deviation from allowable values will be brought to the lender's and contractor's attention and corrective measures may be suggested. "4. The percentage of completion of the job is reported. If desired, the contractor's monthly requisition can be reviewed. The time of the inspection will be coordinated with the lender and borrower so that draw schedules can be met. "5. A set of Polaroid or color progress photographs. "6. Such other information as we deem to be in the lender's best interest such as weather affecting project progress, strikes, etc. When construction of the building is completed, we will perform a final inspection. If the results so indicate, we will issue a letter stating that to the best of our knowledge work was accomplished in general accordance with the approved plans and specifications based on our periodic visits to the site and terms of our contract evidenced by local documentation such as certificates of occupancy, fire underwriter certificates, etc. as are available to us." The pertinent portions of the testimony and rulings by the court are as follows: Direct Examination by Mr. Pontacoloni: "Q. Mr. Schmeltz, could you tell-the Court please your occupation? "A. Yes. I'm the manager of portfolio administration for the Installment Loan Department at American National Bank. "Q. And in that capacity, Mr. Schmeltz, are you familiar with the loan of American National Bank to Mac's Car City in December of 1978? "A. Yes "Q. And what is the basis of that familiarity? "A. Reviewing the documentations in the file. "Q. Were you employed by the bank at that time? "A. No, I was not. "Q. But you have had an opportunity to review the bank's file with respect to that loan transaction? "A. Yes, I have. "Q. And in the course of your review did you familiarize yourself with the documents on record? "A. To a certain degree, yes. "Q. And would you tell the Court please is the bank's general course of business to keep a record of those documents that you found on file? "A. Yes. "Q. Mr. Schmeltz, I'm going to show you this collection of papers here and I ask you if you can identify those papers? "A. They are documents from the mortgage files. There are some reviews by the engineer, there's some disbursement records and there's an appraisal of the property dated June 17, 1980. "Q. Excuse me, Mr. Schmeltz. "A. Yes. "Q. Just one moment. I hate to interrupt. I believe this was picked up accidently. Basically these items that you're now holding— "A. There are memos in the file, field inspections by the engineer. "Q. When you say the engineer, what engineer? "A. Alfred Wilner. "Q. And do you know what his involvement was with this transaction? "A. To my knowledge he would do a physical inspection of the property prior to releasing of funds on the construction mortgage. "Q, And those were his reports with respect to the inspections that he made? "A. Yes. "Mr. Pontacoloni: Your Honor, at the present time I'm going to move for the admission of the documents as business records and for the submission of copies in lieu of the originals on the basis of the evidence that has been presented. [objection interposed] "The Court: Were these records made by the bank? "Mr. Pontacoloni: They were made by an agent of the bank, Your Honor. "The Court: That's not quite what I asked you. I said were they made by the bank? "Mr. Pontacoloni: To that extent I guess I can only say they were made by an agent of the bank. He was employed by the bank for the purposes of compiling these records. "The Court: You mean they hired some other business to do something for them? "Mr. Pontacoloni: Yes, your Honor. "The Court; Well, now, that doesn't make it a record of the bank. It makes it the record of some other business, doesn't it? "Mr. Pontacoloni: Technically speaking, your Honor, I believe that it does, "The Court: Objection sustained. "Mr. Pontacoloni: May I also have an exception, your Honor? "The Court: Why not." While we do not address the remaining claims of error, we note that the plaintiff has conceded, and we agree, that the trial court erred in its computation of the interest award. It is evident from the trial court's memorandum of decision that interest was awarded to the plaintiff at a rate of 8 percent per annum for the fifty-six month period from July 1, 1979, to March 1, 1984. During the period from July 1, 1979, through September 30, 1979, however, the plaintiff was entitled to interest at only 6 percent per annum. See General Statutes § 37-3a; Public Acts 1979, No. 79-364, § 2. Furthermore, we also note that the plaintiff has conceded that the trial court erred in the calculation of damages, stating that the damage award plus interest should be modified to reflect damages of $45,183.43 and not $46,469.33. In response to the defendant's motion for articulation, the trial court articulated the factual basis for its award of $8034.25 as follows: "[I]n reaching this conclusion the court relied on the testimony of Howard Asal and the exhibits before the court. The work performed consisted of paving work done under a written contract and rental of equipment, top soil, etc. requested orally and supported by signed slips for each item rented and/or delivered. These totaled $16,384.25. . . . Toward this, payments of $8000 were made leaving $8384.25 outstanding. From this item was deducted $350, disputed by the defendant, leaving a balance due of $8034.25." Although the court found that the defendant paid $8000 toward the total balance owed on both the oral and written contracts, it did not specify towards which contract this sum was attributable. It is possible that the trial court could have found that this sum covered the balance owed under the oral contract and that the $8034.25 damage award was attributable solely to a breach of the written contract. We cannot determine, therefore, whether any portion of the trial court's damage award was attributable to the oral contract.

Loiselle, J. The defendant appeals from the denial of his motion to disqualify every prosecutor affiliated with the office of the state's attorney for the judicial district of New Haven on grounds of failure to preserve the confidences and secrets of a former client and conflict of interest. The motion was granted in part by the Superior Court, Kinney, J., and from that decision the defendant appeals. The court's finding sets forth the following facts. The defendant Reginald Jones, a minor at seventeen years of age, is charged with the offense of murder. His father Sammie L. Jones, hereinafter referred to as Mr. Jones, has been appointed guardian ad litem in this prosecution. The defendant has filed notice that he may rely upon a defense of mental disease or defect in this case. Richard P. Sperandeo is the chief assistant state's attorney for the judicial district of New Haven. His responsibilities include the prosecution of crime and representation of the interests of the state. Sperandeo's responsibilities are, on occasion, supervisory when he assigns cases to other attorneys in the office and consults with those attorneys, but he is not so involved in all cases. Sperandeo is also a partner in the law firm of Sperandeo, Weinstein and Donegan, whose two other partners are Josef A. Weinstein and Harold C. Donegan. Sperandeo shares equally with his two partners the responsibilities of his law firm and the representation of all the firm's clients. The law firm of Sperandeo, Weinstein and Donegan represented the defendant Reginald Jones in a civil action which arose out of an automobile accident in September, 1966, when the defendant was five years old. Reginald Jones suffered facial injuries and a possible concussion in that accident. Sperandeo and Donegan worked on the case and helped reach a settlement in 1970. Although the law firm maintained a file containing medical reports and other material on its representation of Reginald Jones in this action, Sperandeo has not represented the defendant in any capacity nor has he looked at the file since the case was settled in 1970. Upon the request of the defendant's present attorney and with the authorization of Mr. Jones, Donegan provided the defendant's attorney with all the medical reports concerning the 1966 automobile accident. The defendant's attorney had requested the entire file, but Donegan refused to give it to him because he did not think the defendant's attorney was entitled to it. In December, 1978, Mr. Jones consulted Donegan about a claim for property damage to his automobile. Donegan talked with Mr. Jones in his office and took information from him, but did nothing more than that. All that Donegan has in his office file regarding this matter is two sheets of paper, one containing notes from his conversation with Mr. Jones, the other indicating the name of the insurance adjuster handling the claim. The property damage claim did not involve the defendant Reginald Jones in any way. Nevertheless, upon the filing of the defendant's motion to disqualify the prosecutors, Donegan terminated his representation of Mr. Jones. The information charging the defendant with murder was filed on December 15,1978. The defendant's motion to disqualify prosecutors was filed on December 26, 1978. As of January 4, 1979, the law firm of Sperandeo, Weinstein and Donegan has not represented the defendant or his father in any pending business. Although Sperandeo has access to the defendant's criminal file in the state's attorney's office, he has not looked at this file nor has he had anything to do with the prosecution of the defend ant. He has not discussed the case with any of the state's attorneys. Sperandeo is not prosecuting Reginald Jones. The court concluded that the defendant failed to establish any substantial relationship between the injuries sustained by him in 1966 and possible defenses to this prosecution. The court concluded that the defendant failed to establish that Sperandeo had acquired confidential information from him as a result of his prior representation, or information which if disclosed would prejudice the defendant in the criminal prosecution. The court also concluded that legal disqualification of Sperandeo was not required, but ordered him not to participate in any way, directly or indirectly, in the prosecution of the case and not to discuss the case with any personnel of the state's attorney's office or other law enforcement authorities. With regard to participation in the case by other prosecutors affiliated with the office of the New Haven state's attorney, the court concluded that there was no actual conflict of interest, nor the appearance thereof, nor any impropriety which would preclude prosecution of the defendant by the remaining prosecutors at that office. The defendant's motion to disqualify them was denied. The defendant assigns error to each of these conclusions, except to the extent that they forbid Sperandeo's participation in the case. The defendant continues to seek legal disqualification of Sperandeo, as well as every other prosecutor affiliated with the New Haven state's attorney's office. The defendant also assigns error to that portion of the finding which overrules his claims of law. These claims of law along with the briefs of the parties argue the standards of professional conduct articulated by other jurisdictions because the issues presented have not been addressed by this court. The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652 (1961); State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863 (1958); General Statutes § 51-80, 51-84 and 51-90. The conduct of attorneys is also regulated by the Code of Professional Responsibility; Practice Book, 1978, pp. 1-52; which has been approved by the judges of the Superior Court. It is the duty of the Superior Court to enforce the canons of ethics. State v. Jackson, 162 Conn. 440, 449, 294 A.2d 517 (1972). In its execution of this duty, the Superior Court has broad discretionary power to determine whether an attorney should be disqualified for an alleged breach of confidentiality or conflict of interest. See Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); Hull v. Celanese Corporation, 513 F.2d 568, 571 (2d Cir. 1975); Waters v. Western Company of North America, 436 F. 2d 1072, 1073 (10th Cir. 1971); Richardson v. Hamilton International Corporation, 469 F.2d 1382, 1385-86 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S. Ct. 2271, 36 L. Ed. 2d 964 (1973). In determining whether the Superior Court has abused its discretion in denying a motion to disqualify, this court must accord every reasonable presumption in favor of its decision. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975). Canon 4 of the Code of Professional Responsibility provides that "A Lawyer Should Preserve the Confidences and Secrets of a Client." Canon 9 provides that "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." Practice Book, 1978, pp. 23, 50. An attorney should be disqualified pursuant to Canon 4 if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior litigation. Allegaert v. Perot, 565 F.2d 246, 250 (2d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., supra, 710; American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1130 (5th Cir. 1971); City of Cleveland v. Cleveland Electric Illuminating Co., 440 F. Sup. 193, 205 (N.D. Ohio 1977). The substantial relationship test has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is "patently clear" or when the issues are "identical" or "essentially the same." Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir. 1978). Before the substantial relationship test is applied, however, the moving party must prove that he had in the past enjoyed an attorney-client relationship with the attorney sought to he disqualified in order to show that the attorney was in a position in which he could have received information which his prior client might reasonably have assumed would be withheld from his present client, in this instance the state. Allegaert v. Perot, supra; American Can Co. v. Citrus Feed Co., supra, 1129; Cord v. Smith, 338 F.2d 516, 523 (9th Cir. 1964). Once the existence of a prior attorney-client relationship is established and a substantial relationship between the matters in issue is found, the court need not inquire whether the attorney in fact received confidential information, because the receipt of such information is presumed. Government of India v. Cook Industries, Inc., supra, 740; Allegaert v. Perot, supra, 250; Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973); Canadian Gulf Lines, Inc. v. Triton International Carriers, Ltd., 434 F. Sup. 691, 693 (D. Conn. 1976); T. C. Theatre Corporation v. Warner Bros. Pictures, Inc., 113 F. Sup. 265, 269 (S.D. N.Y. 1953). The court cannot inquire into whether the lawyer did in fact receive confidential information during his previous employment which might be used to his former client's disadvantage, because a rule requiring the moving party to prove actual disclosures would destroy the very same confidences which Canon 4 protects. The defendant alleges two violations of Canons 4 and 9 which involve Sperandeo. The first is Sperandeo's prior representation of the defendant in a civil action which was settled approximately nine years before the prosecution of this case had begun. In that case, Sperandeo represented the defendant both as an individual attorney and as a member of the firm Sperandeo, Weinstein and Donegan. The second alleged violation is the former representation of the defendant's father, Mr. Jones, in a potential civil action by Sperandeo's partner Donegan and the law firm of Sperandeo, Weinstein and Donegan. Donegan and the law firm have voluntarily terminated their representation of Mr. Jones. Donegan's former representation of Mr. Jones in December, 1978, establishes the existence of a prior professional relationship between Mr. Jones and Donegan, which extends to the law firm of Sperandeo, Weinstein and Donegan and to Sperandeo. American Can Co. v. Citrus Feed Co., supra, 1129. The defendant, however, has failed to establish the second element of the disqualification test. The record does not show a substantial relationship between the criminal prosecution of Reginald Jones and the property damage claim contemplated by Mr. Jones. The court found that Mr. Jones' claim for property damage to his automobile did not involve Reginald Jones in any way. This finding is not attacked by the defendant. Donegan's prior representation of Mr. Jones does not require disqualification of Sperandeo. Sperandeo's prior representation of the defendant in the civil action arising out of the automobile accident in 1966 establishes the existence of a prior attorney-client relationship, a relationship in which Sperandeo could have received medical information concerning the defendant which the defendant might reasonably assume would be withheld from the state in his criminal prosecution. In view of the notice given by the defendant that he may rely on a defense of mental disease or defect and the injuries to his head caused by the automobile accident, there is a substantial relationship between this criminal prosecution for murder and the prior civil litigation. Sperandeo's receipt of confidential information is therefore presumed, and his employment as chief assistant state's attorney for the judicial district of New Haven requires his disqualification pursuant to Canon 4. To the extent that the trial court's order denied the defendant's request to disqualify Sperandeo, it is in error. The defendant contends that disqualification of Sperandeo necessitates disqualification of every prosecutor affiliated with the office of the state's attorney for the judicial district of New Haven. This claim is based solely on Canon 9 because there is no evidence or even a claim that any other attorney in the state's attorney's office has had a prior professional relationship with Reginald Jones. The admonition of Canon 9 that a lawyer should avoid even the appearance of impropriety would not be, without more, enough to disqualify Sperandeo, let alone every prosecutor in the New Haven state's attorney's office. International Electronics Corporation v. Flamer, 527 F.2d 1288, 1295 (2d Cir. 1975); Society for Good Will to Retarded Children, Inc. v. Carey, 466 F. Sup. 722, 724 (E.D. N.Y. 1979); City of Cleveland v. Cleveland Electric Illuminating Co., supra, 205-206. The Connecticut Bar Association has cautioned against the promiscuous use of Canon 9 as a "convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules." International Electronics Corporation v. Flanzer, supra, 1295. Although Canon 9 may be applied together with Canon 4 to disqualify counsel; Schloetter v. Railoc of Indiana, Inc., supra, 709; Canadian Gulf Lines, Inc. v. Triton International Carriers, Ltd., supra, 695; the appearance of impropriety alone is "simply too slender a reed on which to rest a dis qualification order except in the rarest of cases." Board of Education of the City of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979). The cases cited by the defendant in support of his claim that the entire New Haven office must be disqualified are distinguishable. In Canadian Gulf Lines, Inc. v. Triton International Carriers, Ltd., supra, the third party garnishee's motion to disqualify the law firm representing the plaintiff was granted where one partner in the firm had incorporated the corporation in August, 1974, and the other partner proceeded to garnish its assets, alleged to be due and owing to the defendant, in September, 1975. The disqualification motions were based on the theory that the law firm had obtained or could have obtained confidential communications regarding the debt owed the defendant by the garnishee before deciding to represent the plaintiff. Id., 692. In Government of India v. Cook Industries, Inc., supra, an associate who has been assigned to represent the defendant as a corporate client for three years at one law firm left that firm to become associated with another firm where he was assigned within the month to represent the plaintiff in a substantially related action against the defendant. Id., 738-39. The court disqualified the associate and the entire firm which had hired him from the case. Id., 740. In NCK Organization Ltd. v. Bregman, 542 F.2d 128 (2d Cir. 1976), the plaintiff's motion to disqualify the defendant's attorney and his law firm was granted because the attorney was formerly employed as house counsel for the plaintiff corporation and its wholly owned subsidiary and as vice-president of the subsidiary. The Court of Appeals upheld disqualification of the law firm because the defendant's attorney, as counsel for the plaintiff, had participated in drafting a contract for the corporation, but when his employment was terminated counseled both the defendant and the law firm in the litigation of the contract dispute against the corporation. Id., 131. In Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977), the defendant's law firm accepted a retainer from the plaintiff with knowledge that the defendant might be implicated in a securities action brought by the plaintiff. Despite its attempt to create a "Chinese wall" around the matter, the court found that the firm's attempt to segregate all material implicating the defendant and route it to outside counsel it had hired to represent the plaintiff required the firm to apply the knowledge it had gained through its confidential communications with the defendant. Id., 235-36. The court upheld the order granting the defendant's motion to disqualify outside counsel hired to represent the plaintiff. Id., 236. In each of these cases it appeared that the law firm had procured some advantage in the current litigation by virtue of its access to prior confidential communications between the lawyer and his former client in violation of Canon 4. This necessitated disqualification of the entire firm. Canadian Gulf Lines, Inc. v. Triton International Carriers, Ltd., supra, 695; NCK Organisation Ltd. v. Bregman, supra, 135. These cases are distinguishable from the case at bar because the court's finding in this case reveals no real or apparent advantage to the state's attorney's office by virtue of Sperandeo's prior confidential communications with the defendant. Sperandeo has had nothing to do with the prosecution of this case. He has not discussed the case with any of the assistant state's attorneys. He has not even looked at the defendant's criminal file. The defendant does not challenge these findings. Furthermore, it is unrealistic to assume that any prosecutor in the New Haven office has had or will have opportunity to read the private files of Sperandeo, Weinstein and Donegan on the 1966 civil action involving Reginald Jones. All the medical reports concerning Reginald Jones which were gathered by the firm have already been given to the defendant's attorney. "[Ejthical problems cannot be resolved in a vacuum." Emle Industries, Inc. v. Patentex, Inc., supra, 565. A careful consideration of the facts as set out in the finding is required. These facts are not attacked. "Nor can judges exclude from their minds realities of which fair decisions would call for judicial notice." Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corporation, 518 F.2d 751, 753 (2d Cir. 1975). This court will not presume unethical conduct by Sperandeo or by the assistant state's attorneys affiliated with the New Haven office where none has been found. The primary duty of a prosecutor is to seek justice, not merely to convict. Code of Professional Responsibility, EC 7-13; Practice Book, 1978, p. 37. Although, rigid application of the law firm disqualification rule might afford an easy solution, the rule has been subject to severe criticism. NCK Organization Ltd. v. Bregman, supra, 135-36 (Mansfield, J., concurring); "Unchanging Rules in Changing Times: The Canons of Ethics and Intra-firm Conflicts of Interest," 73 Yale L.J. 1058 (1964); American Bar Assn., Committee on Ethics and Professional Responsibility, Formal Opinion 342, November 24, 1975. It can be argued that withdrawal of the entire law firm, here the entire state's attorney's office, when the slightest chance of betrayal of confidential communications exists might better preserve the integrity of the judicial system. But a rule this broad would result in many unnecessary withdrawals, limit mobility in the legal profession, and restrict the state in the assignment of counsel where no breach of confidentiality has in fact occurred. See "Attorney's Conflict of Interests: Representation of Interests Adverse to that of Former Client," 55 B.U. L. Rev. 61, 64 (1975). In view of the unchallenged findings of fact in this case, it cannot he said that the court abused its discretion in denying the motion to disqualify all the prosecutors. There is error in part, the judgment is set aside and the case is remanded to enter an order disqualifying only Sperandeo from participating in the prosecution of this case. In this opinion Bogdanski and Healey, Js., concurred. The defendant assigns as error the trial court's failure to disqualify the prosecutors under Canon 5 which states that "A Lawyer Should Exercise Independent Judgment on Behalf of a Client" and under Disciplinary Rule 5-105. Practice Book, 1978, pp. 25, 32. The scope of Canon 5, its ethical considerations and disciplinary rules, is limited to conflicts of interest: conflicts between attorney and client and conflicts between two or more simultaneous clients. Canon 5 is inapplicable to this case. State v. Chambers, 86 N.M. 383, 524 P.2d 999 (1974), relied on by the defendant, is also inapplicable to this case, because there the prosecutor had previously represented the defendant in the same case. The defendant did not brief his assignment of error on Canon 5. It is therefore considered abandoned. State v. Lockman, 169 Conn. 116, 121, 362 A.2d 920 (1975). The remainder of the cases cited by the defendant in support of his assertion that every prosecutor in the New Haven office should be disqualified are inapplicable because their facts entail simultaneous representation of parties with conflicting interests in the same action; Opinion No. 26, Conn. State Bar Assn., Committee on Professional Ethics, 49 Conn. B.J., 469 (1975); simultaneous representation of parties with conflicting interests in different actions; Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976); Estep v. Johnson, 383 F. Sup. 1323, 1324-25 (D. Conn. 1974); Grievance Committee v. Rottner, 152 Conn. 59, 65, 203 A.2d 82 (1964); and subsequent representation of an opposing party in the same litigation; Waters v. Western Company of North America, 436 F.2d 1072, 1073 (10th Cir. 1971) ; none of which is included in the issues presented by this case. These cases invoke the prohibitions of Canon 5, which is not at issue in this case. See footnote 1, supra. Two cases cited by the defendant are inapplicable because only one attorney and not the whole office was disqualified. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 574 (2d Cir. 1973); Estep v. Johnson, supra, 1327. Formal Opinion. 342 was expressly rejected in Armstrong v. McAlpin, 606 F.2d 28 (2d Cir. 1979) for reasons which, are inapplicable to this ease. In Armstrong the law firm representing the plaintiff conceded that one of its newly made partner's prior personal involvement in an SEC investigation as assistant director of the commission's division of enforcement required his disqualification, because that investigation resulted in the filing of a complaint by the SEO against the defendant. The court disqualified the entire firm as well under DR 9-101 (B) which forbids a lawyer's acceptance of private employment in a matter in which he had substantial responsibility while he was a public employee, and DR 5-105 (D) which provides that where a lawyer is required to decline employment under a disciplinary rule, no partner, associate, or any other lawyer affiliated with him or his firm may accept or continue such employment. The court expressed concern that the lawyer's employment history and the subsequent involvement of his firm had afforded him an opportunity to handle a legal matter, here the government investigation, so as to enhance the prospect of private employment in the future. Id., 32-33. There is no likelihood that Sperandeo accepted employment in the 1966 civil action, which has resulted in his disqualification, with an eye toward the opportunity to prosecute Reginald Jones twelve years later. The court's holding in Armstrong was necessitated by the identity of subject matters involved in the lawyer's former and present endeavors: the investigation led to the lawsuit, creating a conflict of interest within a lawsuit under Canon 5. Here the defendant has alleged a violation of the standard of confidentiality of Canon 4. This does not require rejection of the standards adopted by the American Bar Association in Formal Opinion 342.

Spallone, J. After a trial to a jury, the defendant was convicted of two counts of kidnapping in the first degree, a violation of General Statutes § 53a-92 (a) (2) (A), and two counts of sexual assault in the first degree, a violation of General Statutes § 53a-70 (a). From the judgment rendered following the verdicts, the defendant appeals, claiming that the trial court erred (1) by permitting the state's handwriting expert to testify as an alibi rebuttal witness despite the failure of the state to notify the defendant in advance pursuant to Practice Book § 764, and (2) by allowing the state's handwriting expert to testify from writing samples that were never authenticated. The evidence adduced at trial could reasonably support the following facts. On Saturday, September 3, 1983, at about 11:45 p.m., the victims, two fourteen year old boys, were walking home from a movie in Milford. The defendant, driving a four door Dodge sedan, pulled his car to the side of the road, exited from the car and identified himself to the victims as a Bridgeport juvenile officer. The defendant ordered the boys to the side of his car, handcuffed them, pushed them in the car, fastened them in with seatbelts, and drove off. While driving, he purported to read the boys their Miranda rights and radio into juvenile authorities. The defendant drove into Bridgeport and pulled into a parking lot. At that point, the defendant got out of the car, pulled one of the boys from the back seat, and forced him into the trunk. The defendant pulled a sweater over the other boy's head and drove off. Approximately one-half hour later, the defendant arrived at a building and parked his car inside. When in the building, the defendant forced the victim from the trunk, pulled a shirt over his head, and handcuffed him to a pole. The defendant removed the shirt from the boy's head and placed masking tape over the boy's eyes. The boy was nevertheless able to peep out and identify certain features of the building. The defendant then removed the other boy from the car, handcuffed him to a different pole, and taped his eyes shut. This boy was also able to see out under the tape. The defendant then brought the first victim into another room and sat him in a chair. The defendant, who was now nude, sat on a desk and interrogated the victim. He asked the victim his name, address, telephone number, date of birth, nickname, his parents' names and their places of employment, and the name of his school and grade. The victim was able to observe the defendant writing down the information on a piece of paper. The defendant then returned to the other victim and asked the same biographical questions. The victim was able to see out under the tape and observed the defendant write the information onto a pad of yel low paper. The defendant then brought the victims into a different room and sexually assaulted them. After the sexual assault, the defendant replaced the tape blindfolds with bandages and allowed the boys to get dressed. He then drove them back to Milford and let them off, where they were found by the Milford police. Both claims of error raised by the defendant focus on the testimony of the state's handwriting expert, William Duane. The circumstances surrounding Duane's testimony require some explanation. As part of its casein-chief, the state introduced a yellow sheet of paper that had been seized from the defendant's desk pursuant to a valid search warrant. The paper contained certain biographical information of the victims. After the victims testified that the color of the paper and the information contained on it were the same as that used and elicited by the defendant on the night of the abduction, the trial court admitted the document. To further corroborate this evidence, the state offered an admission by the defendant that the exhibit was in his handwriting and had been in his bedroom. Upon the defendant's motion to suppress, however, the court ruled these statements inadmissible. This ruling was made on Thursday, August 2,1984. The following Tuesday, August 7, the state disclosed that it intended to call Duane as a handwriting expert to testify regarding the handwriting on the sheet of paper. At the same time, the state filed a supplemental disclosure with the defendant's counsel listing Duane as a rebuttal witness to the defendant's alibi testimony. The disclosure was made pursuant to Practice Book § 764, which requires the state to disclose the identity of witnesses who will testify in response to the defendant's alibi defense after the defendant has disclosed his alibi witnesses. The defendant moved to exclude Duane from testifying because the state had not disclosed timely his identity as an alibi rebuttal witness pursuant to Practice Book § 764. The state's attorney responded that the state was unaware of the need for a handwriting expert until the unfavorable ruling on the motion to suppress, and that it had not received Duane's report until that day and had promptly provided defense counsel with a copy. The state's attorney also noted that the disclosure of Duane as a witness was made within ten days of receiving the defendant's written notice of alibi witnesses, and indicated that he would have no objection to a request by defense counsel for a continuance to prepare for cross-examination. The trial court then allowed Duane to testify. The defendant's first claim reiterates his argument that the state violated Practice Book § 764 by failing to file timely a notice of the state's intent to call Duane as a witness. Section 764 provides: "If the written demand and notice have been filed pursuant to Sec. 763, the prosecuting authority, within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant's alibi witnesses." The state argues that even though Duane, out of an abundance of caution, was listed as an alibi rebuttal witness in the state's supplemental disclosure, he should not, under § 764, be considered such a witness. The state points out that Duane's testimony was presented as part of its case-in-chief, that Duane himself did not purport to have any knowledge of the defendant's whereabouts, and that Duane's testimony served only to confirm testimony of the victims, who did know where the defendant had been. We agree that Duane was not an alibi rebuttal witness under Practice Book § 764. Section 764 requires the state to disclose the identity of witnesses who will either "establish the defendant's presence at the scene of the alleged offense [or] . . . rebut testimony of the defendant's alibi witnesses." Duane's testimony fell into neither of these categories. His testimony, if credited, would tend to establish the defendant's authorship of the evidence in question. It could not, without more, establish the defendant's presence or absence at the scene of the crime. Duane cannot therefore be classified as an alibi rebuttal witness. Cf. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1985), cert. denied, 474 U.S. 953, 106 S. Ct. 321, 88 L. Ed. 2d 304 (1985). Even if Duane were considered an alibi rebuttal witness, the state in this case did not know of its need to use Duane until the defendant's motion to suppress was granted in the midst of trial. Where a new alibi or alibi rebuttal witness is discovered in the midst of trial, disclosure requirements are governed by Practice Book § 765. Section 765 provides: "If prior to or during the trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Secs. 763 or 764, the party shall promptly notify the other party or his counsel of the existence and identity of such additional witness." (Emphasis added.) There is no question that the state's disclosure of Duane complied with this section. Finally, although defense counsel claimed he was surprised by the witness and would need more time to find a rebuttal expert, he did not request a continuance. "If the defendant felt that he had insufficient time to prepare, his remedy would have been to request a continuance, which he did not do." State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). The trial court did not abuse its discretion by allowing Duane to testify. See State v. Boucino, 199 Conn. 207, 216, 506 A.2d 125 (1986). The defendant's second claim is that the trial court erred by allowing Duane to utilize exemplars of the defendant's handwriting which the defendant alleges were not properly authenticated. The state was allowed to introduce as exhibits several business and employment records bearing the name of the defendant. Duane used these exhibits in determining that the handwriting on the yellow sheet was that of the defendant. The defendant claims that the state failed to prove that these exemplars were in his handwriting. It is undisputed that where an issue is raised regarding the authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an exemplar, the authenticity of which has been established. Shakro v. Haddad, 149 Conn. 160, 163, 177 A.2d 221 (1961); Tyler v. Todd, 36 Conn. 218, 222 (1869). The authenticity of the exemplar may be proved by circumstantial evidence. McCormick, Evidence (3d Ed.) § 222; annot., 41 A.L.R.2d 575, 589 § 8. The state claims that the authenticity of the signatures on business and employment records was established by their nature and contents, as well as by testimony of the defendant's fiancee on cross-examination that the handwriting on the exemplars was that of the defendant. We conclude that the trial court did not abuse its discretion by admitting the exemplars into evidence. Courts have generally held that handwriting on employment or business records may serve as exemplars where the employee would normally be expected to place his signature on such documents. See United States v. Mangan, 575 F.2d 32, 41-42 (2d Cir. 1978) (personnel file); United States v. Greiser, 502 F.2d 1295, 1298-99 (9th Cir. 1974) (motel registration cards, employment applications); United States v. Reed, 439 F.2d 1, 3 (2d Cir. 1971) (W-4 tax withholding form); United States v. Swan, 396 F.2d 883, 885 (2d Cir. 1968), cert. denied, 393 U.S. 923, 89 S. Ct. 254, 21 L. Ed. 259 (1968) (student's university records); United States v. Liquor, 373 F.2d 304, 305 (2d Cir. 1967) (employment and lease applications, automobile registration); Shapiro v. Equitable Life Assurance Society, 76 Cal. App. 2d 75, 87, 172 P.2d 725 (1946) (signature on loan application); State v. Clark, 552 S.W.2d 256, 264-67 (Mo. App. 1977), aff'd, 592 S.W.2d 709 (Mo. 1979) (employment application, personnel file). Here, the defendant never contended that the exemplars were not genuine, nor did he advance any argument as to who else may have signed the documents. In fact, the defendant's fiancee, on cross-examination at a later point in the trial, confirmed the authenticity of the exemplars. Under these circumstances, there was no error in allowing the exemplars to be introduced into evidence. There is no error. In this opinion the other judges concurred. Although the defendant appealed to this court, the appeal was transferred to the Supreme Court pursuant to Practice Book § 2003 because the subject matter of the appeal is within the direct jurisdiction of the Supreme Court. General Statutes § 51-199 (b) (3), 53a-92 (b), 53a-35a (3). On review, however, the Supreme Court elected to transfer the matter to this court. General Statutes § 51-199 (c). Practice Book § 763 provides: "Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi." The state had previously made a demand pursuant to this section, and the defendant had disclosed to the state the names of alibi witnesses he intended to call in his defense. The state claims that review of this claim should be precluded by the failure of the defendant to comply with the procedures set forth in Practice Book § 3060F (d) (3) regarding the form of the appellant's brief. In the interests of justice and in view of the fact that the reply brief of the defendant sets forth an adequate factual summary, however, we will review the claim. Practice Book § 3164; see Pisel v. Stamford Hospital, 180 Conn. 314, 330, 430 A.2d 1 (1980); Vaiuso v. Vaiuso, 2 Conn. App. 141, 145, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). The exhibits are: (1) a Cablevision employment application and two W-4 forms; (2) a Pepperidge Farms employment application, a Manpower employee record and three receiving forms; (3) receiving reports and purchase orders from Cablevision; (4) a photographic enlargement with side-by-side comparison of key words from the yellow sheet with the victim's biographical information and a composite of the same letters taken from the business and employment records; and (5) a Manpower job application. The exhibits were admitted under the business record exception to the hearsay rule. General Statutes § 52-180. Although the business record rule obviates the hearsay objection, it does not render all business records competent for whatever purpose they may be offered. See State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518 (1986). Thus, the admission of the document did not, in and of itself, establish the authenticity of the defendant's signatures on the documents.

Hull, J. After a jury trial, the defendant was convicted of arson in the second degree, a violation of General Statutes (Rev. to 1979) § 53a-112. He now appeals from the judgment of conviction rendered on the verdict, claiming that the trial court erred: (1) in admitting into evidence statements he made to the police; (2) in permitting the state to make reference to an ethnic stereotype in its examination of several witnesses and in its closing argument; (3) in refusing to strike, as violative of Practice Book § 755, testimony given by a police officer; (4) in admitting "identification" testimony; and (5) in denying his motion for judgment of acquittal. We find no error. The jury reasonably could have found the following facts. Shortly after 11 p.m., on July 10, 1980, three youths who were riding their bicycles on Main Street in Glastonbury noticed smoke coming from Augie's Restaurant. One of the young men went to the nearby police station and reported the fire. The officer who received the information arranged to have the fire department notified and then proceeded to the restaurant. On arriving at the scene of the fire, the officer checked the perimeter of the building and saw that the front doors were unlocked and that one of the doors was ajar. Shortly after the officer completed his initial check of the area, members of the fire department arrived. They immediately smelled gasoline and one of the firefighters noticed that the floor was slippery and covered with some kind of liquid. Later, the firefighters discovered three plastic containers which held an orange liquid that later was determined to be gasoline, behind the restaurant's food counter. A fourth container was found near the locked and bolted rear door. The defendant filed a claim against his insurance company for the damage the fire caused to the restaurant. For several months preceding the fire, business had dropped off at Augie's. Many of the restaurant's suppliers had reduced their credit terms from thirty days to seven days, and then to cash on delivery. On a few occasions during this time period, the defendant approached friends and discussed selling either Augie's, or his other business, Dave's Original Bagels. In the year before the fire, the defendant had discussed burning down one of his businesses with two individuals and had offered money to one of them to do so. Approximately eight months before the fire, the defendant called his insurance agent and asked that the coverage on Augie's be increased from $41,000 to $135,000. The agent felt that the amount the defendant wanted was disproportionate to the value of the building and its contents. In addition, the defendant was already behind in paying his premiums. The agent therefore refused the requested increase. Either the day of, or the day before the fire, the agent called the defendant and informed his wife that the insurance on the restaurant would be cancelled unless he received at least a $1000 payment on the outstanding balance within ten days. On the day of the fire, the defendant called his nephew, who worked at a gas station, and told him that he had run out of gasoline. As a result of this call, the nephew put two and one-half gallons of gas in the trunk of the defendant's car. At around 8 p.m. that evening, Alan Mitchell, the father of one of the defendant's employees, saw an individual pull his car up to the side door of the restaurant. Mitchell noticed that the individual, whom he thought was the defendant, was unloading things from his trunk. He, therefore, went over to offer help. Mitchell took a box, in which he saw four plastic containers with an orange liquid in them, into the restaurant. Later in the evening, the defendant returned to the restaurant and, using the gasoline as an accelerant, set fire to the building. The defendant first claims that the police elicited certain statements from him in violation of his right to remain silent as guaranteed by the fifth amendment to the United States constitution and interpreted by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He argues that the trial court therefore erred in allowing a police officer to testify as to the substance of the statements. Because the defendant withdrew his objection to the admission of the testimony at trial, we decline to review this claim of error. At trial, the state sought to elicit testimony from Steven Oborski, a Glastonbury police officer, concerning certain statements the defendant had made to him. The defendant objected arguing, inter alia, that his oral statements to Oborski were inadmissible because he had not been told, pursuant to the United States Supreme Court's decision in Miranda v. Arizona, supra, that he had a right to remain silent. The defendant argued that he was entitled to Miranda warnings because, at the time the questions were asked, the police had begun to focus their investigation on him. The trial court recessed court to allow defense counsel time to research the issue. When court reconvened, defense counsel conceded "that the threshold question in regard to statements of the defendant is custody." He also stipulated that "there is no question [that the defendant] was not in custody at that time nor is there an issue of voluntariness, that he was [at the police station] voluntarily . . . . " Counsel then expressly withdrew his Miranda-based objection. In general, "appellate review of all issues, even constitutional issues, [is limited] to those on which the trial court has had an opportunity to rule. Practice Book § 3063 . . . ." State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Where a party makes an objection and then withdraws it, the trial court has no such opportunity. The defendant has not shown, nor does the record reveal, any exceptional circumstances which would persuade us to exempt this case from the general rule. Accordingly, we decline to review this claim of error. See State v. Miner, 197 Conn. 298, 305, 497 A.2d 382 (1985) (claim of error in admission of testimony unreviewable where objection to admission withdrawn at trial and where record inadequate as a result). The defendant's second claim is that he was deprived of a fair trial by the state's use of the term "Jewish lightning" in its examination of several different witnesses and in its closing argument, and by the trial court's use of the term during its instruction to the jury. According to the defendant, the use of this term encouraged the jurors to form an inference of guilt based not on the evidence but on an ethnic stereotype: that Jews as a character trait commonly commit arson to defraud insurance companies rather than suffer business failures. The state argues that this court should not review this issue because the defendant never objected on this ground at trial. We agree with the state's position. The challenged references to the term "Jewish lightning" arose in the following situations. To establish a motive for the arson, the state called several members of the "coffee group," regulars at Augie's who were friends of the defendant. They testified about the decline in the defendant's business, the defendant's financial troubles, and his attempts to sell the restaurant. During the direct examination of Rocco Malena, one member of the group, the state asked whether the defendant had ever said anything about what he wished would happen to the business. Malena answered that the defendant had expressed a hope that the building would burn down. When cross-examining Malena, defense counsel, in an attempt to cast doubt on the seriousness of the defendant's statement, first referred to "Jewish lightning" in the following manner: "[Defense Counsel]: Wouldn't it be fair to say that the coffee group and joking around, you used to joke with [the defendant] about 'Jewish lightning' and his business? "[Malena]: Oh, definitely. "[Defense Counsel]: You know that Joel Millstein is Jewish? "[Malena]: Right. "[Defense Counsel]: That was kind of a joke among the guys because he was involved in a restaurant business and he is Jewish: right? "[Malena]: Urn hum." In an attempt to rebut the implication raised during cross-examination that the defendant had been joking when he said he wished his building would burn down, the state, during its redirect examination of Malena, referred to "Jewish lightning" as follows: "This joking about 'Jewish lightning' was a general thing but he wished it would burn down two or three months before the actual fire?" When Malena refused to acknowledge any distinction, the state pressed this point stating: "Are you saying that you took the way he was talking two or three months before the fire in a more serious vein than your normal joking about Jewish Lightning?" Malena still refused to acknowledge any distinction. The third challenged reference to "Jewish lightning" made by the state occurred when Ronald Molina, another member of the coffee group, was being examined on direct. The state asked Molina whether it was "a regular topic — the term 'Jewish lightning' that came up in your conversation?" Again, during the examination of Ronald Cheney, yet another member of the group, the state asked whether the talk about "Jewish lightning" was a common topic. Cheney responded that the topic "came up." Thereafter, the term was mentioned by the state, defense counsel and witnesses in relation to the coffee group's conversations. During closing argument, the state reviewed the evidence given by the coffee group members and, in so doing, made the following reference to "Jewish lightning": "I am just going to hit some of the highlights of each of the testimony. We have Mr. Cheney, Mr. DeBella. These are the friends, Ron [Molina], Rocky Malena, Butch D'Alessandro and Paquin. Ron Cheney, said [the defendant] wanted to sell the business, said business was off, employee problems, 'Jewish lightning' . Ron [Molina] said business 'definitely dropped off,'employee problems,'Jewish lightning.' . . .Some other interesting comments by Rocco Malena, he said that on two or three occasions, the defendant said that he wished the business would burn down. Has 'Jewish lightning' gone down to a wish, a sentiment, an intent, a motive? Is it forming at this time?" The final reference to which the defendant objects was made by the trial court during its charge to the jury. While instructing the jury, the court charged that it could "consider and give such weight as [it felt] appropriate to the comments from the members of the coffee group concerning the constant or apparently continual reference to 'Jewish lightning' and the business." While the defendant now claims that the use of the term "Jewish lightning" deprived him of his right to a fair trial, he never objected or excepted to the state's or the trial court's use of the term. Nor did he request that the jury be cautioned against drawing a prejudicial inference, or move for a mistrial. This court has recently reiterated the general rule that " 'where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state's attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974).' " State v. Salz, 8 Conn. App. 125, 138, 512 A.2d 921 (1986), quoting State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986). This court may, of course, review a claim of error even absent the appropriate objection and exception if the challenged action constitutes plain error; Prac tice Book § 3063; or if the challenged action implicates a fundamental constitutional right and the record adequately supports the claim that the defendant was deprived of that right; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Here, the defendant has claimed that the comments deprived him of his fundamental constitutional right to a fair trial and the record is adequate for us to review that claim. Accordingly, we next consider whether the defendant was deprived of his right to a fair trial. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986). To show that a prosecutor's comments deprived him of a fair trial, a defendant bears the burden of showing that the remarks were prejudicial in light of the entire proceeding. State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984). "The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." Id. Our extensive review of the challenged portions of the testimony and the closing argument shows no unfairness in the proceedings. Contrary to the defendant's claim, the state did not use the term "Jewish lightning" in a manner which would invite or encourage the jurors to convict the defendant based on his ethnicity. Rather, the term was used by both defense counsel and the state as a shorthand way of saying arson. While we agree with the defendant that the use of the term in such a manner was highly offensive and inappropriate, we cannot agree with his further claim that its use deprived him of a fair trial. This is especially so given the overwhelming evidence of the defendant's guilt. Where evidence of guilt is substantial, prejudice is unlikely. We conclude that, under these circumstances, the defendant has not shown that he was prejudiced by the remarks. The defendant also claims that the trial court's comments violated his due process right to a fair trial. The precise nature of this claim is not clear. It appears, however, that the defendant is in effect arguing that, through its charge, the court invited the jury to convict him based on his ethnicity, not on the evidence. We emphatically reject this claim. The use of the term "Jewish lightning" which the defendant challenges consisted of a single comment the court made when reviewing witness testimony: "You may also consider and give such weight as you feel appropriate to the comments from the members of the coffee group concerning the constant or apparently continual reference to 'Jewish lightning' and the business." While it would have been preferable for the court not to use the term, there is no support for the defendant's argument that in so commenting, the court was appealing to ethnic bias. Rather, the court was referring to the evidence in the same language used by defense counsel and then by the witnesses and the assistant state's attorney. We acknowledge that " 'a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.' " State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985), quoting State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977). Additionally, we recognize the invidious and offensive nature of all stereotypes, racial, ethnic, religious, sexual or other. We must conclude, however, that in these circumstances the trial court's comments did not deprive the defendant of a fair trial. Accordingly, the record does not adequately support the defendant's claim that he was deprived of a fundamental constitutional right and we, therefore, decline to consider this claim of error. In his third ground of error, the defendant challenges the trial court's failure to strike, pursuant to Practice Book § 755, testimony given by a police officer despite the fact that statements he had previously made relating to the subject matter of his testimony were not available for inspection at trial. The state called officer Thomas McKee of the Glastonbury police department, the shift supervisor the night of the fire. McKee testified that he had informed the defendant of the fire. During cross-examination, McKee admitted that he had prepared a written report in connection with his conversation with the defendant. He was then asked if he had his report with him, and he indicated that he did not because the report had been lost. The state interrupted the questioning and acknowledged a duty under Practice Book § 752, Connecticut's version of the Jencks Act, to disclose the statement. It then outlined the efforts that had been made to find the reports. The court noted the state's remarks but did not strike the witness' testimony. The defendant now claims that the trial court erred by not striking the testimony. In so arguing, he relies on Practice Book § 752, 753 and 755. Under Practice Book § 752, "[a]fter a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified." Practice Book § 753 provides that where, as here, "[t]he entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant and or his counsel for his examination and use." (Emphasis added.) If the prosecution chooses not to comply with the court's order to deliver the statement, "the judicial authority shall strike from the record the testimony of the witness . . . . " (Emphasis added.) Practice Book § 755. Our Supreme Court has interpreted the provisions of Practice Book § 752 as mandatory. See State v. Anonymous (83-FG), 190 Conn. 715, 732, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982). Accordingly, the defendant argues that the trial court erred by not striking the testimony and claims that his conviction, therefore, must be reversed. While the defendant is correct in claiming that the requirements of Practice Book § 752 are mandatory, he is incorrect in implying that the trial court always lacks discretion to decide whether to strike witness testimony under Practice Book § 755. In several recent cases; State v. Vessichio, 197 Conn. 644, 661, 500 A.2d 1311 (1985); State v. Milum, 197 Conn. 602, 617, 500 A.2d 555 (1985); State v. Myers, 193 Conn. 457, 467, 479 A.2d 199 (1984); and State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); our Supreme Court considered whether a trial court must strike witnesses' testimony when otherwise discoverable statements they made are not produced at trial because of unavailability. In those cases, our Supreme Court concluded that sanctions for nondisclosure are not automatic. Rather, the court held that under such circumstances the decision on whether to strike the testimony should be resolved by applying a balancing test: the extent of the state's culpability for failure to produce the statement weighed against the amount of prejudice to the defendant which resulted from nondisclosure. State v. Shaw, supra, 386; see also State v. Zayas, 3 Conn. App. 289, 295-96, 489 A.2d 380, cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985). Here, the record discloses very little culpability on the state's part. The only testimony on this issue at trial revealed that the statement was lost. There was no indi cation that it had been intentionally destroyed, or that it had been destroyed in accordance with routine police department practice. Cf. State v. Myers, supra, 467-70. Nor is there any indication that the defendant was in any way prejudiced by nondisclosure, and the record shows that the defendant was given ample opportunity to cross-examine McKee, the maker of the missing statement. When faced with a similar situation in State v. Shaw, supra, our Supreme Court found "both halves of the balance opposed to the imposition of a sanction." State v. Myers, supra, 467. We conclude that the trial court did not err by reaching the same conclusion in this case. In his fourth claim of error, the defendant challenges the trial court's decision to admit certain testimony which he characterizes as "identification testimony." The defendant does not allege an unnecessarily suggestive pretrial identification procedure. Nor does he contend that the courtroom setting was unnecessarily suggestive so as to taint the in-court identification. Rather, the defendant claims that the evidence should have been excluded because it was irrelevant in the light of the witness' uncertainty about a key point. We disagree. It is the function of the trial court, not this court, to rule on the relevancy of offered evidence. "On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling." State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). We conclude that in this case the trial court did not abuse its discretion by admitting the testimony. The challenged testimony was given by Alan Mitchell, the father of one of the defendant's employees. Mitchell was called as a witness by the state. During his direct examination, Mitchell testified that he usually waited in his car in Augie's parking lot for his son, John, to finish work. The state asked Mitchell if he saw the defendant while waiting for his son on the evening of July 10, 1980. He responded: "[t]he night of the fire, I believe he drove in while I was waiting and he drove in with his car which was a, I believe was a, Cadillac Coupe DeVille." After asking a few additional questions, the state then asked Mitchell whether the defendant was the person he saw unloading the car. Mitchell replied that "[i]t has been so long I would have to say I think so, but I am not that well acquainted with him to say for sure." He further stated that he believed the person he saw that night was the owner of the restaurant. The state then asked Mitchell what he did when he saw this person unloading the car. The defendant objected arguing that the witness' inability positively to identify the person as the defendant made his testimony irrelevant. The state asked a further question to overcome the objection and Mitchell explained his hesitation as follows: "I feel that I did not know the gentleman that well and it's been three years and I assume it is that gentleman, but you could put four or five other people in front of me that might have the same general appearance, and I would have to say that I am pretty sure but I just don't know." The court overruled the defendant's objection finding that it went to the weight of the evidence rather than to its admissibility. The court also indicated that it was for the jury to determine whether the person Mitchell saw drive up in a Cadillac was the defendant. The defendant excepted to the ruling. Mitchell then testified that he helped the individual unload a box from his truck in which, were four plastic jugs of orange liquid. "The rules governing the determination of relevancy are well established. '[EJvidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.' State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985)." State v. Franko, 199 Conn. 481, 485-86, 508 A.2d 22 (1986). Here, the challenged testimony related to a material fact: the identity of the arsonist. Mitchell's testimony included a description of the man who was driving the car. He also testified that the man whom he had assisted was driving a Cadillac Coupe DeVille, the type of car the defendant owned at the time. He testified that the individual was unloading his trunk and taking the contents into the restaurant through' a side entrance. From these facts, the jury could reasonably have concluded that the person Mitchell saw was the defendant. From this evidence, the jury could reasonably have inferred that the defendant was the person who started the fire. Accordingly, the evidence did "[tend] to establish the existence of a material fact." State v. Talton, supra, 285. The defendant's claim to the contrary amounts to an argument that evidence is probative only where it proves a material fact. This is not the law. Testimony need not prove a material fact to be relevant but need only make the existence of that fact more probable than it would have been without the testimony. State v. McClendon, 199 Conn. 5, 9, 505 A.2d 685 (1986). The trial court did not err in admitting the evidence. The defendant's final claim is that the trial court erred by denying his motion for judgment of acquittal based on the sufficiency of the evidence. According to the defendant, the state failed to produce sufficient evidence that the setting of the fire subjected "another person to substantial risk of bodily injury" as required under General Statutes (Rev. to 1979) § 53a-112. The defendant concedes that the state presented evidence that firefighters were subjected to a substantial risk of bodily injury. He argues, however, that because General Statutes (Rev. to 1979) § 53a-111, as amended by Public Acts 1979, No. 79-570, § 3, arson in the first degree, specifically mentions firefighters as a protected group and General Statutes (Rev. to 1979) § 53a-112, the second degree arson statute, does not, this court must find that the legislature intended not to authorize prosecution for arson in the second degree where only firefighters were subjected to substantial risk of bodily injury. General Statutes (Rev. to 1979) § 53a-112 defines arson in the second degree as an intentional burning which "subjects another person to substantial risk of bodily injury." Accordingly, to accept the defendant's argument, this court would have to hold that firefighters are not "persons." "A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the General Assembly in enacting the statute is to be derived from the words used. See State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983). A corollary rule is that the words of a statute are to be construed with common sense and 'according to the commonly approved usage of the language.' General Statutes § 1-1; State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983)." State v. Pellegrino, 194 Conn. 279, 284, 480 A.2d 537 (1984). Here, the language of the statute is unusually plain and unambiguous: liability attaches where "another person" is subjected to a substantial risk of injury. The commonly approved usage of the word "person" certainly includes firefighters. Nor do we see anything in the language of § 53a-lll or 53a-112 or the history of those statutes which would persuade us that the legislature did not intend to include firefighters within the definition of the word persons. The trial court did not err in denying the defendant's motion for judgment of acquittal. There is no error. In this opinion the other judges concurred. Practice Book § 752 provides: "After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified." Pursuant to Practice Book § 755, if the prosecution chooses not to comply with the court's order to disclose the statement, "the judicial authority shall strike from the record the testimony of the witness . " The defendant's failure to include references to the transcript in his statement of facts as required by Practice Book § 3060F (c) has severely limited our ability to review his claims of error. We decline as well to review this claim under the fundamental rights-fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Under Evans and its progeny, appellate review of claims of error which were not properly preserved at trial will be reviewed only in the rare circumstances where a defendant asserts deprivation of a fundamental constitutional right and a fair trial and the record adequately supports that claim. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). The defendant has satisfied the first prong of Evans by alleging violation of his right to remain silent as guaranteed by the fifth amendment to the United States constitution. The record, however, does not adequately support the defendant's claim that he was deprived of this right. The United States Supreme Court has held that the fifth amendment to the United States constitution requires the police to inform an individual of his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This requirement applies, however, only where the individual is in custody and subject to interrogation. At trial, the defendant's counsel conceded that the defendant was not in custody. Accordingly, the record does not support the defendant's claim that admission of the statements violated his fifth amendment rights. 18 U.S.C. § 3500. In State v. Myers, 193 Conn. 457, 469 n.7, 479 A.2d 199 (1984), our Supreme Court held that "[s]ince access to the statements of witnesses for the prosecuting authority is not a constitutional right. . . the burden of showing prejudice rests on the defendant." (Citations omitted.) General Statutes (Rev. to 1979) § 53a-112 provides in part: "A person is guilty of arson in the second degree when he starts a fire or causes an explosion: (1) With intent to destroy or damage a building (A) of another, or (B) whether his own or another's to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage." General Statutes (Rev. to 1979) § 53a-111, as amended by Public Acts 1979, No. 79-570, § 3, provides in part: "A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) a peace officer or firefighter is so close to such building that he is subjected to a substantial risk of bodily injury." Our decision on this claim of error is supported by our Supreme Court's decision in State v. Moye, 199 Conn. 389, 398-99, 507 A.2d 1001 (1986).

Per Curiam. This is an action to recover a real estate broker's commission which the plaintiff claimed to have earned by producing a lessee for the defendant's commercial property. The trial court found, in part, as follows: In the summer and fall of 1968, the defendant Henry Santa Barbara, president of the Pine Plaza Corporation, had been engaged in discussions with James Troy, a vice-president of the Waterbury National Bank, with respect to the bank's interest in leasing the defendant's property for a branch site. Other officials of the Waterbury National Bank were informed of the discussions between Troy and Santa Barbara. As late as December 3, 1968, the defendant was told by Troy that the bank was interested in leasing his property. There was no meeting between the plaintiff and Santa Barbara with regard to the subject property prior to December 17, 1968. On December 17, 1968, the plaintiff urged the defendant to let him show the property to interested parties. Santa Barbara expressed a willingness to talk to anyone the plaintiff might produce as a lessee, but specifically instructed Halperin not to bring any banks and especially not the Waterbury National Bank because he was already engaged in conversations with the bank as a possible lessee. Halperin had no written agreement with the defendant, did not seek one, and had no exclusive listing. On December 18, 1968, nevertheless, the plaintiff brought Harold Sullivan, a vice-president of the Waterbury National Bank, to view the defendant's property. Sullivan was unaware of the site location the plaintiff was seeking to show him but was cognizant that bank officials had discussed the defendant's property as a desirable site for the bank to lease for a branch. When Sullivan and the plaintiff met the defendant Santa Barbara on the site on December 18, 1968, a dispute immediately arose between Santa Barbara and the plaintiff. Santa Barbara rebuked the plaintiff for bringing him a representative of the Waterbury National Bank as a prospective lessee. Sullivan, then realizing and recalling that the site had been previously brought to his attention, immediately withdrew from any further discussions as to the property with the plaintiff and reported his meeting with the plaintiff to the bank's president. From January, 1969, to August, 1969, the Waterbury National Bank carried on negotiations with the defendant Santa Barbara through his attorney; these negotiations resulted in a twenty year lease. Shortly after the December 18, 1968 incident, the plaintiff was informed by the president of the Waterbury National Bank and the defendant Santa Barbara's attorney that he was not the broker of either the bank or the defendant and was to make no further efforts on their behalf. The plaintiff did not participate in any way in the negotiations between the bank and the defendant which took place between January, 1969, and August, 1969. The plaintiff, on appeal, claims that the trial court erred in including twenty-three paragraphs in the finding without evidence and in failing to include fifty-eight paragraphs of the draft finding in the finding. This court has repeatedly indicated that it disfavors such wholesale challenges to the findings which result in attempts to have this court retry issues of fact. See, e.g., Toffolon v. Avon, 173 Conn. 525, 527, 378 A.2d 580; Kateley v. Kateley, 172 Conn. 361, 362, 374 A.2d 1049; Southern New England Contracting Co. v. State, 165 Conn. 644, 646, 345 A.2d 550. In the present case the attack on the findings is unavailing: the facts found are either supported by the evidence or based on inferences reasonably drawn from the evidence; New Haven v. United Illuminating Co., 168 Conn. 478, 483, 362 A.2d 785; Schurgast v. Schumann, 156 Conn. 471, 475, 242 A.2d 695. It is futile to assign error where the weight of the testimony or the credibility of the witnesses is involved because these matters are for the determination of the trier of fact. Toffolon v. Avon, supra; Scott v. General Iron & Welding Co., 171 Conn. 132, 138, 368 A.2d 111. Similarly, the facts the plaintiff would have us add to the finding are either immaterial or not admitted or undisputed. Such facts cannot be added to the finding. See, e.g., Cutler v. MacDonald, 174 Conn. 606, 609, 392 A.2d 476; El Idrissi v. El Idrissi, 173 Conn. 295, 297, 377 A.2d 330; Practice Book, 1978, § 3039. That a witness has testified to a fact without direct contradiction is in itself insufficient to demonstrate that the fact was admitted or undisputed. Klepp Wood Flooring Corporation v. Butterfield, 176 Conn. 528, 531, 409 A.2d 1017; Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619. A real estate broker is entitled to recover a commission when he has met the burden of proving his employment as a broker to sell or lease the owner's real estate upon certain named terms, and when, but only when, he produces a customer willing, ready and able to purchase or lease upon those terms. Menard v. Coronet Motel, Inc., 152 Conn. 710, 711, 207 A.2d 378; Rosenfield v. Wall, 94 Conn. 418, 419-20, 109 A. 409. In a case like the present one, when the agency of a broker is not exclusive, his "efforts must be the predominating producing cause of the sale." Marshall v. Sturgess & Jockmus, Inc., 150 Conn. 59, 62, 185 A.2d 472. The trial court, applying this law, concluded that the plaintiff was not the agent of the defendants in securing the lease, had not been the predominating procuring cause of the lease agreement entered into by the defendant Santa Barbara and the Waterbury National Bank, and that therefore judgment should enter for the defendants. Since the trial court's conclusions are neither inconsistent with the facts found, as the plaintiff's wide-ranging attack on the trial court's finding implicitly acknowledges, nor a violation of law, logic, or reason, they must stand. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491, 400 A.2d 726; Bell v. Planning & Zoning Commission, 174 Conn. 493, 496, 391 A.2d 154. Finally, the factual findings fail to support the plaintiff's claim grounded on Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679, that an implied-in-law contract existed because, inter alia, the plaintiff rendered services he expected to be paid for and the defendant availed himself of those services. The defendant Santa Barbara cannot possibly, under the facts of this case, be deemed to have availed himself of the plaintiff's services. There is no error. The parties stipulated that any liability accruing against the defendant corporation by reason of the acts of the defendant Henry Santa Barbara, its president and majority stockholder, would attach to the defendant Santa Barbara. The events upon which this action is based took place prior to the enactment of General Statutes § 20-325a (b) in 1971.

Borden, J. The defendant, the commissioner of transportation, appeals from the trial court's judgments in favor of the plaintiff. In these combined actions, the plaintiff claimed damages for personal injuries and for property damage arising out of a one car accident on a state highway. The principal issue in these appeals is whether the trial court erred by finding as a matter of law that the plaintiff had provided the defendant with sufficient notice to meet the requirements of General Statutes § 13a-144. We find error. Certain facts are not in dispute. On March 23,1982, the plaintiff was injured as a result of a one car accident in which his automobile was also damaged. The accident occurred on Camp Meeting Road in Bolton. One month later, the plaintiff's attorney purported to give the requisite statutory notice of his injuries and losses to the defendant. See footnote 1, supra. This notice, however, described the place of the accident as route 6 in Bolton instead of Camp Meeting Road, and failed to state the time of the accident. After receiving this notice, an employee of the defendant wrote to the plaintiff, on May 6,1982, advising him to submit all further correspondence to the defendant's insurance company. Within the ninety day notice period required by General Statutes § 13a-144, the plaintiff's attorney sent the following items to the defendant's insurance company: the police accident report, an investigator's diagram of the area, photographs of the accident site, and a cover letter. The police accident report properly described the time and place of the accident. The diagram and photographs, however, incorrectly identified the accident site as route 6. The cover letter made no reference to the time or place of the accident, nor did it state that it was a supplement to or substitute for the original notice of the plaintiff's claims. The defendant does not dispute that his insurance carrier received these items within the statutory ninety day notice period. The plaintiff's personal injury complaint was issued on September 14,1982, and the property damage complaint was issued on June 22, 1983. Both complaints alleged that the accident occurred on route 6 and that statutory notice was provided to the defendant on April 21, 1982. The defendant moved for summary judgment in both actions on the ground that the notice was defective as a matter of law. Attached to these motions was, inter alia, a map and a sworn affidavit of a department of transportation official which indicated that Camp Meeting Road and route 6 are two distinct and separately maintained highways. The plaintiff argued, inter alia, that the items sent to the defendant's insurer were sufficient as a matter of law to meet the statutory notice requirements and that the defendant should be estopped from challenging the validity of that notice because the defendant's employee had informed the plaintiff to submit all correspondence to the insurance company. The trial court, Hale, J., denied the motions for summary judgment. At trial, the plaintiff presented his cases without introducing any evidence regarding the notice given to the defendant. The defendant moved for directed verdicts at the close of the plaintiff's cases and, later, after all the evidence had been introduced. After the plaintiff rested, the trial court, Allen, J., held a hearing on the notice issue outside of the jury's presence in order to preserve this issue for purposes of appeal. The plaintiff marked three items as exhibits for identification: the original letter of notice dated April 21, 1982, the defendant's letter of May 6,1982, to the plaintiff advising him to forward all correspondence to the defendant's insurer, and the cover letter from the plaintiff to the defendant dated May 24,1982. The trial court held that, as a matter of law, the plaintiff had provided the defendant with sufficient notice to meet the requirements of General Statutes § 13a-144. Consequently, the trial court denied the defendant's motions for directed verdicts and charged the jury that as a matter of law the plaintiff had provided adequate notice to the defendant. The defendant excepted to the charge to the jury. The jury returned verdicts for the plaintiff and judgments were rendered accordingly. The trial court denied the defendant's motions for judgment notwithstanding the verdicts and to set aside the verdicts, and these appeals followed. The defendant first claims that because the evidence of statutory notice was insufficient, the trial court erred by refusing to direct ver diets, by failing to render judgments notwithstanding the verdicts, and by denying his motions to set aside the verdicts. The plaintiff concedes that the original notice of April 21, 1982, to the defendant was inadequate but argues that the other items, which were sent to the defendant's insurer, were sufficient as a matter of law to provide the defendant with notice. In addition, the plaintiff asserts that because the defendant advised the plaintiff to forward all correspondence to the insurer, the defendant should be estopped from challenging the validity of that notice. We disagree. General Statutes § 13a-144 created a cause of action "wholly unauthorized by the common law." Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958). "In view of the fact that Section [13a-144] is in derogation of the common law and that during its successive reenactments a saving clause has not been inserted, the statute must be strictly construed." Wright & Fitzgerald, Conn. Law of Torts (2d Ed.) § 95, p. 224; cf. General Statutes § 13a-149 (notice savings clause in municipal highway liability statute). "The giving of the statutory written notice of injury is a condition precedent to the cause of action, whether the action is against the state or any subdivision thereof." Wethersfield v. National Fire Ins. Co., supra. Ordinarily, the question of the adequacy of notice "is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice "patently meets or fails to meet"; id; the statutory requirements. In the present case, the trial court correctly removed the threshold question of the validity of the statutory notice from the jury. The court erred, however, by determining that the notice in question was legally sufficient to meet the requirements of General Statutes § 13a-144. General Statutes § 13a-144 requires, inter alia, that notice properly describing the place where the alleged injury occurred "[be] given in writing within ninety days thereafter to the commissioner." As the plaintiff concedes, his first purported notice, which was timely sent to the defendant, failed properly to describe the place where the accident occurred. Similarly, the items subsequently forwarded to the defendant's insurer failed properly to describe the place where the accident occurred. At best, those items were ambiguous with respect to the description of the accident location. The police accident report properly described the site of the accident as Camp Meeting Road, but the diagram and photographs indicated that the accident occurred on route 6. Even if we were to assume that such an ambiguous notice was sufficient to meet the threshold requirements of General Statutes § 13a-144 so as to permit the question of validity to go to the jury, it is clear that this notice was not sent "to the commissioner" as the statute requires. Construing the statutory requirements strictly, as we must, we conclude that the plaintiff's correspondence, which was forwarded to the defendant's insurance company, failed to meet the requirement Of notice "to the commissioner." We also reject the plaintiff's claim that the defendant should be estopped from claiming that the subsequent notice materials were not sent "to the commissioner." This claim is based on the May 6,1982 letter from the defendant's employee to the plaintiff advising the plaintiff to forward all further correspondence to the defendant's insurance company. The defendant argues that the plaintiff has failed to meet the criteria necessary to invoke estoppel against a governmental defendant. We agree. Estoppel against a governmental agency may be invoked only in limited instances and with great caution. Greenwich v. Kristoff, 2 Conn. App. 515, 522, 481 A.2d 77 (1984). "Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982). In order to invoke a claim of estoppel against a government agent, the claimant must also show that the government agent who induced the detrimental reliance had authority to act in such matters and that special circumstances exist which make it highly inequitable or oppressive to enforce the applicable law. West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). Further, the party claiming estoppel in such cases must establish that he exercised due diligence in ascertaining the legality of his conduct, "and that he not only lacked the knowledge of the true state of things but had no convenient means of acquiring that knowledge." Greenwich v. Kristoff, supra. Even if we assume that the evidence was sufficient to establish that the defendant's employee intended to induce the plaintiff to believe that the plaintiff could send the statutorily required notice to the insurance company instead of to the defendant, and that the plaintiff relied to his detriment upon that inducement, the evidence is insufficient to warrant the application of the estoppel doctrine against this defendant. There is no evidence that the plaintiff "lacked both knowledge of the true state of things and a convenient way to ascertain it." Id., 523. To the contrary, it is clear that had the plaintiff "exercised due diligence in ascertaining the legality" of his conduct; id., 522; he would have known that the statute specifically required notice to the defendant rather than to the defendant's insurance carrier. This is not, therefore, one of those limited instances in which estoppel may be invoked against a government agent. There is error, the judgments are set aside and the cases are remanded to the trial court with direction to render judgments for the defendant. In this opinion the other judges concurred. General Statutes § lSa-144 provides in pertinent part: "No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner." The attorney who gave this notice was not the attorney who represented the plaintiff in this appeal. The defendant also moved to strike the property damage complaint on the ground that the notice failed to include a general description of the damage to the plaintiffs automobile and failed to specify the time of the accident. The trial court, Kelly, J., denied the motion to strike without prejudice, indicating that "[wjhile the notice comes exceedingly close to being insufficient, the court is unable to conclude that it [is] insufficient as a matter of law." Because this issue is dispositive of these appeals, we do not reach the other issues raised by the defendant.

Bogdanski, J. This appeal concerns an order of the Juvenile Court terminating the parental rights of the plaintiffs with respect to their two infant children. From that order, the plaintiffs appealed to the Superior Court under the provisions of § 17-70 of the General Statutes. After reviewing the record of the proceedings in the Juvenile Court, the Superior Court found the issues for the defendant welfare commissioner and dismissed the appeal. From that judgment, the plaintiffs have appealed to this court, assigning error in the court's conclusions. We first address ourselves to the defendant's assertion that the record is insufficient for proper review by this court. Citing Martin v. Connecticut Personnel Commissioner, 167 Conn. 377, 379, 355 A.2d 256, the defendant claims that the plaintiffs should have requested a finding in both their appeal to the Superior Court and their appeal to this court, and that without a finding of facts on which the Juvenile Court and the Superior Court based their conclusions, this court is in no position to do other than affirm the judgment of the Superior Court. A review of appellate procedure set forth in the Practice Book disposes of that argument. Section 404 of the Practice Book has, since 1971, provided that "[t]he hearing on appeal shall be upon the record of the proceedings in the juvenile court. The superior court shall review the certified record of those proceedings and determine whether or not the juvenile court has found facts without evidence or has reached conclusions which cannot be reasonably derived from the facts found or the law applicable thereto or both, or has acted illegally or arbitrarily." See General Statutes § 17-70 (b). The record of the proceedings before the Juvenile Court was, therefore, properly before the Superior Court, and it was solely upon the basis of that record that the appeal was decided. We, in turn, review the action of the Superior Court and may properly consult its memorandum of decision to ascertain the conclusions on which it based its judgment; A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 187, 355 A.2d 91; and in testing those conclusions we review the facts in the record submitted to us pursuant to Practice Book § 645 as it may be supplemented by any relevant portions of the Juvenile Court record which are printed in the appendices to the briefs. Practice Book 714-716. In this appeal, the parents have relied on the extensive appendix to the brief filed on behalf of their two children. That appendix, combined with the record, is sufficient for our review of the assigned errors. The defendant has also filed an appendix of even greater length, composed of over fifty pages of verbatim testimony of the proceedings in the Juvenile Court. That testimony quoted in the defendant's appendix, however, has no sequence or continuity, with excerpts beginning and ending in the middle of sentences. It is sufficient to point out that the resulting confusion greatly complicates our review of this appeal, and that Practice Book § 720 requires that evidence be stated in appendices in narrative form whenever possible without unnecessary or repetitious printing of testimony. The plaintiffs have assigned error in the Superior Court's conclusion that the order of the Juvenile Court to terminate parental rights was reasonably derived from the legally admissible evidence before it. Specifically, the plaintiffs complain that the Juvenile Court order was based (1) on voluminous medical records concerning the mental health of the parents, which records were improperly admitted into evidence, and (2) on a medical report furnished by a court-appointed psychiatrist, which report was not admitted into evidence. The defendant in his brief and the Superior Court in its memorandum of decision rely primarily on the premise that a Juvenile Court proceeding is essentially civil in nature and that certain informalities in procedure are constitutionally permissible. In re Appeal of Bailey, 158 Conn. 439, 445, 262 A.2d 177; Cinque v. Boyd, 99 Conn. 70, 84, 121 A. 678. While that proposition cannot be challenged as a general statement of the law, it cannot justify procedural irregularities in so serious a matter as the termination of parental rights. The termination of parental rights is defined as "the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . ." General Statutes § 17-32a (e) (Rev. to 1972). Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551; see In re Appeal of Kindis, 162 Conn. 239, 240, 294 A.2d 316; Cinque v. Boyd, supra, 82. "It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'eome[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95 [69 S. Ct. 448, 93 L. Ed. 513] (1949) (Frankfurter, J., concurring)." Stanley v. Illinois, supra. Therefore, laxity in procedural safeguards cannot be swept away by mere reference to the so-called "informalities" of Juvenile Court procedure. The defendant filed petitions for termination of the plaintiffs' parental rights in their two children on May 24, 1973, alleging that the "parents have been or are nnable by reason of a continuing physical or mental condition to offer the care necessary for the child [ren] and there are reasonable grounds to believe that such condition will exist for an indeterminate period of time." See General Statutes § 17-43a (c) (Rev. to 1972). The parents received notice of the petitions and were represented by counsel at all subsequent proceedings. In October of 1973, hearings were held on the defendant's petitions. During those hearings the defendant offered into evidence certain hospital records concerning the parents' prior hospitalization for mental illnesses. The parents objected to the admission of those records on the ground that the psychiatrist who prepared those reports was not present for examination in violation of Rule 17-7 of the Juvenile Court, now § 1119 (6) of the Practice Book, which states that "[p]roperly validated reports of physicians and clinical tests, both psychological and physical, may be admitted by the court if, in its judgment, the adjudication does not pivot around the contents of the report in question. Where such a report appears likely to be determinative of the decision, its authors should be present for proper examination." The Juvenile Court overruled the parents' objection and admitted the records as "hospital records under the regular hospital records rule." See General Statutes § 52-180. As already noted, the petition alleged that the parents were unable to provide necessary care for their children because of a continuing mental condition. Thus, the mental health of the parents was a pivotal issue and the hospital reports in question might arguably have been determinative of the decision. Moreover, the parties and the court did not consider the applicability of the statutory privilege of confidentiality of communications and records of a patient's mental condition. General Statutes 52-146d, 52-146e. Since the parents made timely objection to their admission, they cannot be deemed either to have consented to the disclosure of those records or to have waived their privilege. See State v. Vennard, 159 Conn. 385, 406, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625. We therefore conclude that the records in question were not admissible as business entries under § 52-180 of the General Statutes, and that the Juvenile Court erred in receiving them in evidence. The further claim is made that the Juvenile Court based its decision on a medical report which was not admitted into evidence. The appendices to the briefs disclose that, prior to the hearing on October 15, 1973, the Juvenile Court ordered that the parents be examined by a psychiatrist. After examining the parents the court-appointed psychiatrist prepared a medical report concerning both parents. That report, however, was never introduced into evidence. In its memorandum of decision, the Juvenile Court made reference to that report and quoted directly from it. Since the report was never made a part of the record, it was error for the Juvenile Court to use it in any way to support its conclusions. It is thus clear that the order of termination could not properly have been based on either the past hospital records of the parents' mental illnesses or the report of the court-appointed psychiatrist. If those documents were the source of the underlying facts on which the Juvenile Court based its conclusions, the errors would be harmful. We must, therefore, examine the other evidence which was before the Juvenile Court. The appendices disclose that the court-appointed psychiatrist testified as to the results of his examination of the parents, notwithstanding the fact that his report was never admitted into evidence. He was further subjected to cross-examination by counsel for the parents. He testified that both parents were suffering from chronic schizophrenia; that while both parents would like to care for their children, they were unable to do so; that the nature of their illness was quite severe, requiring an intensive, structured hospital setting for some time; and that their conditions would continue for an indeterminate period of time. Other evidence before the court included the unchallenged testimony of a social worker who had supervised the plaintiffs' children for the two years preceding the hearings, and the testimony of the parents themselves. That evidence discloses that the parents met while they were both patients at a mental institution and that they were married in early 1971; that the two children were born shortly thereafter; and that the parents were unable to care for the children properly. In October of 1971, the two children were placed in foster homes after being declared uncared for and neglected children. The plaintiff father had been institutionalized for over a decade. During six months of 1973, when he was in the community, he was neither employed nor involved in vocational rehabilitation. At the time of the hearings, he was once again back in a mental institution. During a visit by the social worker in the summer of 1972, he appeared to be infantile, and in a later telephone conversation with her, he was violent, abusive and threatening. The plaintiff mother had been institutionalized since 1961. During an eighteen-month stay outside the hospital, which was her longest period without institutionalization since 1961, her employment record was sporadic, with no job being held for more than a few months. She had been faithful in visiting her children after the 1971 adjudication of neglect until the spring of 1973, when her husband rejoined her in the community. After he came to live with her, she stopped visiting her children and twice returned voluntarily to the mental hospital. The social worker had suggested to her that she might be able to make a stable plan for her children apart from her husband, but she was unwilling or unable to do so. As of the last hearing in the Juvenile Court, neither parent was involved in any form of vocational rehabilitation or in any form of therapy other than medication. The above evidence which was properly before the Juvenile Court overwhelmingly supports its conclusion that the parents were unable by reason of continuing mental conditions to offer the care necessary for the well-being of their children, and that their conditions would be prolonged for an indeterminate period of time. See General Statutes §17-43a(c) (Rev. to 1972). "We have held in numerous cases that, where the facts contained in testimony admitted into evidence by an erroneous ruling are established by other evidence, the ruling is harmless and does not constitute reversible error. DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798; see Sondik v. Beth El Temple of West Hartford, Inc., 152 Conn. 712, 714, 207 A.2d 583. 'The ultimate question in such a situation is whether the erroneous ruling of the court would have been likely to affect the result. Guerrieri v. Merrick, 145 Conn. 432, 435, 143 A.2d 644. . . . [T]he appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153; Sears v. Curtis, 147 Conn. 311, 316, 160 A.2d 742; Guerrieri v. Merrick, supra, 434; DeCarufel v. Colonial Trust Co., supra.' Obermeier v. Nielsen, 158 Conn. 8, 13, 255 A.2d 819." Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 316, 268 A.2d 639. Since the parents' histories of mental illness were otherwise established by the evidence, including their own testimony, and since the psychiatrist himself testified as to the essential contents of his report, neither the admission into evidence of the parents' past medical records nor the consideration by the court of the psychiatrist's report which was not introduced into evidence can be said to constitute reversible error. We recognize the gravity of our decision and emphasize that the termination of parental rights is a most serious and sensitive judicial action. The natural rights of the parents, however, cannot be permitted to overshadow the best interests of the children, and in this context, we note that counsel, who was appointed by the court pursuant to the provisions of § 17-66c of the General Statutes to represent the children, has consistently supported the action of the Juvenile Court. By terminating the plaintiffs' parental rights, the children can now be removed from their temporary foster home and placed in a permanent family environment through the adoption process. See General Statutes A 17-43a, 45-61.7 (c). Accordingly, we conclude that the Superior Court was correct in concluding that the Juvenile Court's decision conld reasonably be derived from the evidence properly before it. There is no error. In this opinion the other judges concurred. Section 17-32a was subsequently repealed with new language substituted by Public Act No. 73-146 § 20, Public Act No. 73-625 $ 2, and Public Act No. 74-164 § 18. The latest definition of "termination of parental rights" is found in § 45-61b (g) of the General Statutes (Rev. to 1975), and is substantially similar to that quoted in the body of this opinion. Section 17-43a was subsequently repealed with new language substituted by Public Act No. 73-156 § 4, and Public Act No. 74-164 §3. See § 17-43a (a) (3) (Rev. to 1975). See footnote 3.