Datasets:

TeraflopAI

/

Caselaw_Access_Project_embeddings

like 4

The defendant's "Motion to Direct Referee to Hear Defendant's Motion for Support During Appeal" from the Superior Court in Hartford County is denied. The defendant's "Motion for Support During Appeal" from the Superior Court in Hartford County is dismissed.

Longo, J. The facts of this appeal are not in dispute. The plaintiff was arrested on November 12, 1969, and charged with murder. He was arraigned in the Superior Court in New Haven on the same day, denied bail and held in custody under a mittimus. On August 3, 1970, a jury found the accused guilty of murder in the second degree and, on August 21, the court sentenced him to life imprisonment. He remained in custody under the mittimus from the date of his arrest until the date of his sentencing, a total of 282 days. Upon the refusal of the defendant, the commissioner of correction, to credit the plaintiff with the period of time spent in custody prior to sentencing, the plaintiff petitioned the Superior Court to issue a writ of mandamus ordering the defendant commissioner to credit the plaintiff's life sentence with 282 days for parole consideration. The court, after hearing, granted the petition and the defendant has appealed from that judgment. The agreed issue presented in this appeal is whether the plaintiff, who was sentenced to life imprisonment, is entitled to credit for presentence confinement, commonly referred to as "jail time," under the provisions of General Statutes § 18-97 and 18-98. In determining this issue, we also consider § 54-125 and 18-7. Section 18-97 in its relevant portions grants a "credit" towards the prison or jail sentence of "any person" for days spent in custody under a mittimus awaiting trial and sentencing or any other proceeding. Section 18-98 grants a similar credit to "any person" who has been denied bail by the court or who has been unable to obtain bail. Section 54-125 is concerned with the statutory provisions pertaining to an inmate's eligibility to appear before the parole board for consideration. That statute allows "any person," if sentenced for life, to be paroled after he has been confined for not less than twenty-five years, less "good time" not exceeding five years, as may have been earned under § 18-7 of the General Statutes. Under the provisions of § 18-7, the so-called good-time-earned statute, any inmate may, by good conduct and obedience to the rules of the correctional institution, earn a diminution or commutation of his sentence amounting to sixty days for each year, and, in addition, five days of each month, as a meritorious time service award for exemplary conduct and meritorious achievement. The defendant commissioner claims that under the provisions of §54-125 and 18-7, an inmate serving a life sentence is required to serve a minimum of twenty years after the day of sentencing before he becomes eligible for parole consideration, i.e., twenty-five years under the minimum sentence, less five years' maximum earned or "good" time as provided in § 18-7. It is the defendant's contention that the trial court erred in crediting 282 days of presentence confinement since such credit reduced the plaintiff's minimum term below the twenty years required by § 54-125 and 18-7. In considering the relevant statutes, it is a cardinal rule of construction that statutes are to be construed so that they carry out the intention of the legislature. Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36. This intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous. Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70. Where the legislative intent is clear, and the language used to express it is unambiguous, there is no room for statutory construction. State ex rel. Cooley v. Kegley, 143 Conn. 679, 683, 124 A.2d 898; State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773. The legislative intent is clearly expressed in § 18-97; therefore, there is no necessity for statutory construction. The legislature, in using the words "any person," unambiguously intended that all prison inmates serving sentences in all correctional institutions are entitled to be credited with whatever period of time they served while held in custody awaiting trial and sentencing because of a court-ordered mittimus. A similar legislative intent is expressly stated in § 18-98 to grant all inmates, who are denied bail or are unable to obtain bail, credit for "jail time" spent awaiting trial and sentencing. Both statutes are mandatory and require automatic administrative action and procedure. The language of both statutes is inclusive and indicates no intention to exclude inmates who are serving life sentences. The words used in expressing the legislative intent are to be given their commonly approved meaning, unless a contrary intent is clearly expressed. General Statutes §1-1; Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 522, 134 A.2d 351. It is not the purpose of § 18-97 and 18-98 to reduce the time a prisoner must serve pursuant to a sentence, as is the purpose of § 18-7, the "good-time" statute. Rather, the purpose of the "jail-time" statutes is to give recognition to the period of presentence time served and to permit the prisoner, in effect, to commence serving his sentence from the time he was compelled to remain in custody due to a mittimus (§ 18-97) or because of the court's refusal to allow bail or the defendant's inability to raise bail (§ 18-98). In contradistinction to "jail time," "good time" is a commutation of a sentence, affecting an inmate's parole and discharge dates, thereby serving an important rehabilitative function by allowing an inmate the opportunity to earn an earlier release for himself. See McGinnis v. Royster, 410 U.S. 263, 271, 35 L. Ed. 2d 282, 93 S. Ct. 1055. Thus "jail time" is fundamentally distinct from "good time," and the defendant's interpretation of § 54-125 as limiting the amount of both to five years would contradict the express language of § 18-97 and 18-98. There is no error. In this opinion Loiselle, MacDonald and Bogdanski, Js., concurred. "[General Statutes] See. 18-97. credit towards fine or sentence for a period spent in custody under mittimus. Any person receiving a fine or a sentence to a correctional institution . . . shall receive credit towards any portion of such fine . . . or . . . sentence . . . for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution. Upon notification from the commissioner of correction, the clerk of the court shall enter such credit . . . upon the mittimus in the ease of a sentence and it shall be the duty of the agency or person that held such person under such mittimus to inform the clerk of the court of the proper amount of such credit. . . ." "[General Statutes] Sec. 18-98. commutation of sentence for PERIOD DURING WHICH BAIL WAS DENIED OR UNAVAILABLE. Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned is entitled to commutation of his sentence by the number of days which he spent in a community correctional center from the time he was denied or was unable to obtain bail to the time he was so imprisoned. The commissioner of correction shall, if such person has conformed to the rules of the institution, credit such person with the number of days . . . which . . . such person was confined . . . between the denial of bail to him or his inability to obtain bail and his imprisonment." "[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 twenty-five years, less such time, not exceeding a total of five years, as may have been earned under the provisions of section 18-7, may be allowed to go at large on parole . . . ."

Per Curiam. In this case the plaintiff sought monetary damages and injunctive relief against the defendants for the alleged breach of a restrictive covenant. It arose from the action of the defendants in constructing a swimming pool, pump house, and pool house or cabana on a lot adjoining the residence of the plaintiff, which construction, the plaintiff alleged, violated the provisions of restrictive covenants contained in the deeds of eight adjoining lots developed and sold by a common grantor. The trial court concluded that it was the intent of the common grantor that the restrictions in the deeds be personal to him and, accordingly, they were unenforceable for preceding or succeeding grantees, that no uniform plan of development existed, that the construction on the defendants' property was permissible despite the restrictive covenants, and that the plaintiff had failed to prove any damages or pecuniary loss to her from the construction, or that the construction constituted a nuisance. The court also concluded that on general principles of equity and of the doctrine of comparative harm and because of the laches of the plaintiff she was not entitled to equitable relief. The finding of the court is not subject to material correction. It amply supports the conclusion of the court that the plaintiff was not entitled to equitable relief. The conclusion of the court that the restrictive covenants were personal to the common grantor and not enforceable by the plaintiff against the defendants was, however, in error. The contrary was expressly decided by this court in Maganini v. Hodgson, 138 Conn. 188, 82 A.2d 801, where the court held (p. 192) that these restrictive covenants came within the general rule that " '[w]hen, under a general development scheme, the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee.' " We find, also, that the court did properly conclude that the plaintiff had failed to prove that she had suffered any pecuniary loss or damage. The end result is that the plaintiff has established that the defendants violated the restrictive covenants which were imposed for the benefit of the plaintiff and other lot owners in the tract, and she was entitled to enforce her property right by timely action. This constituted a legal wrong to the plaintiff and "[s]ome damage necessarily follows any wrongful invasion of another's property." Patalano v. Chabot, 139 Conn. 356, 362, 94 A.2d 15. As this court long ago observed: "Now, there is no doubt that, for any wrongful invasion of another's property, some damage necessarily results; and the law does not require any distinct injury to be shown, in order to justify a recovery. It considers the infringement of the rights of a party, an injury, for which damages must be given; because upon no other principle can one's rights be protected. Every infringement of them must, to some extent, endanger the right itself, and a continuance of the infringement would, in time, deprive the party altogether of his right." Nicholson v. New York & New Haven R. Co., 22 Conn. 74, 84. "This necessary damage is actual as distinguished from the mere nominal damage involved . in some casual and inoffensive tort; . . . but it is nominal as distinguished from any specific damage suffered and proved. In a case like this some damage results from the mere invasion of the plaintiff's rights, and its amount, not being determinable by proof, must be comparatively small and in that sense nominal." Watson v. New Milford Water Co., 71 Conn. 442, 450, 42 A. 265; Dewire v. Hanley, 79 Conn. 454, 458, 65 A. 573. What we further said in Patalano v. Chabot, supra, is also pertinent: "Ordinarily, we do not find error in order to permit the plaintiff to recover merely nominal damages. Went v. Schmidt, 117 Conn. 257, 259, 167 A. 721. The case at bar is of a different nature. At least a token payment is required. Beattie v. New York, N.H. & H.R. Co., 84 Conn. 555, 559, 80 A. 709; Chapin v. Babcock, 67 Conn. 255, 257, 34 A. 1039." There is error in part, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff to recover damages assessed at $25.

Arthur H. Healey, J. A six person jury found the defendant, Antoine Reddick, guilty as charged of burglary in the third degree in violation of General Statutes §53a-103 (a), theft of a firearm in violation of General Statutes § 53a-212, and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). Reddick then pled guilty to one count of being a persistent offender. A judgment was rendered and the defendant was sentenced to a total effective term of not less than three years and six months nor more than six years. In this appeal, the defendant is challenging the legality of a search of his automobile conducted by the police without a warrant. This search led to the seizure of a cassette deck that subsequently was discovered to have been stolen. This information, in turn, served as the basis for the issuance of a search warrant for premises on Dudley Street in Hamden which led to the seizure at that address of several additional stolen items. The defendant moved to suppress all this evidence. After a hearing on the matter, the trial court, Falsey, J., denied the motion. As grounds for denying the motion, the court held that the search of the car "was voluntary, and necessary for the protection of the police and the accused. It follows from that that the motion to suppress the evidence taken from the house [Dudley Street] is denied." The defendant has, both in his brief and in oral argument, specifically withdrawn his objection to the seizure of items resulting from the search of the Hamden residence except insofar as that seizure was based upon information obtained from the claimed illegal search of his car. Therefore, the sole issue to be decided by this court is the legality of the search of the defendant's automobile. From the testimony presented at the hearing on the motion to suppress, the trial court could have reasonably found the following facts: Shortly before 8 a.m. on May 29, 1979, the North Haven police received a report from a Mr. Donlan of New Haven that he had spotted a ear resembling the car that was involved in the burglary of his residence two weeks earlier. Donlan reported that he had followed the car to the Giltex/Canada Dry parking lot located on Middletown Avenue in North Haven. Officer Frederick Apuzzo of the North Haven police department was dispatched to the scene, where he was soon afterwards joined by Sergeant Oertel and Officer Anthony Milano of the New Haven police department. Upon arrival, Apuzzo checked the registration plates and determined that the plates did not belong to the car in the parking lot and, in fact, that the car did not have any plates issued for it. The car had not, however, been reported stolen. The officers went looking for the owner of the car and found the defendant, who admitted owner ship, working in the Canada Dry warehouse. After Apuzzo told the defendant about the complaint by Donlan, the defendant accompanied the officers to his parked car. While standing beside the car, the defendant admitted that the plates belonged to a friend of his, who owned a similar car, and that he had driven the ear to work that day. The police informed him that he was going to be issued a summons for operating an unregistered motor vehicle and for misuse of plates. The defendant was also told by the police that, because the car was not registered, it was going to be towed pursuant to the police department's policy to tow all such vehicles to ensure that when they were returned to the road they would be properly registered. Apuzzo then testified that as a corollary to the department's towing policy, the police also inventoried the contents of all the cars that were towed "for the protection of ourselves, the owner and the department and the garage that tows it." This was related to the defendant who, according to Apuzzo, responded by saying, "[o]kay." The defendant was then asked if he would open the trunk. At first, the defendant hesitated and wanted to know why. Milano explained to the defendant that, while he was under no obligation to open the trunk, they wanted to "pacify" Donlan, who still insisted that the car was involved in the burglary of his house and whom Milano described as "sort of a police bug." Apuzzo testified that the defendant responded by saying, "I have nothing to hide," after which he himself opened the trunk with his key. Inside the trunk the officers observed a pair of headphones, a blue gym bag, and a piece of electronic equipment which was partially sticking out of a pillowcase. When asked what was inside the pillowcase, the defendant removed the piece of equipment, which turned out to be a Sankyo cassette tape player, showed it to the police and said it was not working. Donlan informed the police that stereo equipment had been stolen from his house, but after looking over the Sankyo cassette player he stated that it was not his. Apuzzo copied the model and serial number as well as the brand name of the cassette player and handed it to the defendant. He testified that his purpose in doing so was "to run it through an NCIC [the police National Computer Information Center] cheek to determine whether it was a stolen piece of property." He was unable to do this until later that afternoon because the terminal was not working at that time. At this point, the defendant was given a motor vehicle summons and told to remove any valuable property from the trunk because the car was going to be towed and the police did not want valuable property left in the car. The defendant removed the headphones and the gym bag, but left the cassette player in the trunk. The ear was then towed to a private garage in North Haven. At no time during this encounter was the defendant arrested or placed in police custody. In the afternoon of May 29, 1979, after the vehicle was towed, it was inventoried by Officer Hines of the North Haven police department pursuant to departmental policy. One of the items that was inventoried was the Sankyo cassette player which the defendant had left in the trunk. Furthermore, when Apuzzo returned to headquarters, he put the serial number from the cassette player into the N.C.I.C. terminal and the computer reported that it had been stolen in a completely unrelated incident from a house located on Warner Street in Hamden. The North Haven police relayed this information to the Hamden police department and it was then relied upon by the latter in obtaining a warrant to search a residence on Dudley Street in Hamden where the defendant was believed to have resided. The police executed the warrant and, as a result of the search of the Dudley Street residence, the police seized items that were subsequently admitted into evidence. The trial court denied the defendant's motion to suppress, finding that the defendant's consent to search the car was voluntary and necessary for the protection of the police and the accused. It also held that "[i]t follows from [the finding of consent] that the motion to suppress the evidence taken from the house [Dudley Street] is denied." In this appeal, the defendant claims that the warrantless search of his automobile was unreasonable under the United States constitution; U.S. Const., amends. IV and XIV; and the Connecticut constitution. Conn. Const., art. I § 7. This court has recognized four situations where warrantless searches of motor vehicles have not been held unreasonable. These include instances where "(1) the search was incident to a lawful arrest (State v. Cari, 163 Conn. 174, 187, 303 A.2d 7 [1972]); (2) the search was based upon probable cause to believe that the vehicle contained contraband or evidence pertaining to a crime (Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, rehearing denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 [1970]; Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790 [1925]); (3) the search was based upon consent (see Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 [1966], rehearing denied, 386 U.S. 939, 87 S. Ct. 951, 17 L. Ed. 2d 811 [1967]; State v. Spellman, 153 Conn. 65, 71, 212 A.2d 413 [1965]); or (4) the search was conducted not to secure evidence but to inventory the vehicle's contents incident to its impoundment. Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730, rehearing and modification denied, 386 U.S. 988, 87 S. Ct. 1283, 18 L. Ed. 2d 243 [1967] ; see note, 26 L. Ed. 2d 893." State v. Tully, 166 Conn. 126, 134-35, 348 A.2d 603 (1974). In its brief, the state explicitly concedes that the defendant was not under arrest at the time of the search of his trunk in the Griltex/Canada Dry parking lot. In addition, the state does not argue that the police had probable cause to search the defendant's vehicle until after it had been taken into custody. Therefore, the seizure of the Sankyo cassette deck, must be justified either under the inventory search exception or the consent exception. The defendant claims that the search of the trunk of his car was conducted without his consent and, therefore, was in violation of his constitutional rights. The state, on the other hand, claims that the search of the defendant's trunk was conducted with his consent which was voluntarily given and that there was no constitutional violation. We agree with the state and conclude that this issue is dispositive of the appeal. The state recognizes that it bears the burden of proof on the issue of whether consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); United States v. Sanchez, 635 F.2d 47, 58 (2d Cir. 1980). It cites Dotson v. Warden, 175 Conn. 614, 402 A.2d 790 (1978), for the proposition that the conclusion by the trial court that the consent was voluntary should be upheld "unless [it is] legally or logically inconsistent with the facts found or unless [it] involve[s] application of an erroneous rule of law material to the case." Id., 619. In Dotson, we noted that consent is "a question of fact to be determined from the totality of all the circumstances." Id., quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); see State v. Zindros, 189 Conn. 228, 456 A.2d 288 (1983); State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977); State v. Carbone, 172 Conn. 242, 252, 374 A.2d 215 (1977); State v. Tully, supra, 135. Thus, in determining whether the state has sustained its burden on the issue of voluntariness, "no one factor is controlling." United States v. Sanchez, supra, 58; United States v. Vasquez, 638 F.2d 507, 524 (2d Cir. 1980). It is for the trial court to decide the issue based on the evidence it deems credible along with reasonable inferences to be drawn from that evidence. State v. Zindros, supra; Dotson v. Warden, supra. Its determination will not be upset by this court unless clearly erroneous. State v. Zindros, supra; see Practice Book § 3060D; State v. Ostroski, 186 Conn. 287, 294, 440 A.2d 984 (1982). Based upon our review of the transcript of the suppression hearing in this case, we cannot find that the trial court's determination that the defendant voluntarily consented was clearly erroneous. Prior to giving his consent, the defendant was told by the police that his car was going to be towed and its contents inventoried. If this was the only evidence that the state could point to, it would be under a heavy burden to show that the consent was voluntary. In this regard, we note that this court in Dotson v. Warden, supra, 621, said that "the intimation that a warrant will auto matically issue is as inherently coercive as the announcement of an invalid warrant." Here, the "announcement" by the police that the defendant's car would be towed arguably implied that his refusal would have been futile. This is, however, only one factor to be considered. Here, quite unlike Dotson, the record contains sufficient additional evidence to support a finding of voluntariness. According to the testimony of the two police officers, they told the defendant that they wanted to "pacify" Donlan who was there and who insisted that the defendant's car was involved in the burglary of his house. One of the officers testified that they only asked once, and that the defendant was told that he was under no obligation to open the trunk if he did not want to. He was not in custody or under arrest. The defendant showed no signs of being intoxicated or under the influence of drugs, and no force was used. After the police explained their reason for requesting to look inside the trunk, the defendant replied broadly, "I have nothing to hide." He then opened up the trunk with his own key. On the basis of these facts, the trial court's finding, under the totality of the circumstances, that the defendant voluntarily consented to open his trunk was not clearly erroneous. Therefore, it properly denied the defendant's motion to suppress. There is no error. In this opinion the other judges concurred. Donlan had not seen the ear himself. Bather, he was told by the officer who investigated the burglary that a blue ear, possibly a "Chevy," with the same license plates, had been seen driving away from the scene of the Donlan burglary. The defendant testified that Apuzzo threatened to break open the trunk if he did not open it himself. The defendant left it there despite being told that he had "better take that out, too, because somebody might steal it, or something." The defendant testified that he thought it would be safe as long as the trunk was locked. At the hearing on the motion to suppress, the defendant denied that he lived at the Dudley Street residence, but insisted that he lived at 61 Whalley Avenue in New Haven with his wife and child. His motor vehicle license showed the Whalley Avenue address. At the suppression hearing, the state raised the issue of whether the defendant had standing to object to the search of the car based upon his alleged lack of ownership. The trial court found that the defendant did own the ear and, by implication, had standing to assert any constitutional violation. The state has not appealed this finding. For purposes of our analysis on the issue of consent, the question of whether the towing and inventory procedures were valid need not be decided. This is because when the defendant decided to open his trunk for the police, there was no evidence at all that he had any knowledge of the validity of the towing and inventory procedures. Such procedures could thus have had no bearing upon the giving of consent by him. Therefore, the "implied coercion" of Officer Apuzzo's statement presented another question of fact for the trial court to determine in passing upon the issue of consent under the totality of the circumstances. Dotson is factually distinguishable from this case. In. Dotson, the defendant occupied a room in a house owned by another person. While he was a suspect for the crimes of burglary, rape and indecent assault, three police officers visited that house and sought entry. The owner explained her reluctance to permit this. The officers countered her reluctance "with a statement that if she did not permit an inspection, they could get a search warrant and return, and that it might be embarrassing to her, or words to that effect." Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). Although the defendant contested certain of their testimony, we have noted that it is the trial court's responsibility to determine the credibility of witnesses. Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). This conclusion makes it unnecessary to reach any question concerning the validity of the search of the residence on Dudley Street in which the evidence seized was generated by the search of the car.

Cotter, J. This is an appeal from a judgment of the Court of Common Pleas dismissing an intervening plaintiff's appeal from a deficiency assessment of a sales and use tax by the defendant against the named plaintiff, hereinafter Fusco, based solely upon purchases of materials used and consumed in the construction of a building for the intervening plaintiff, New Haven Jewish Community Council Housing Corporation, hereinafter Housing Corporation, the sole appellant prosecuting this appeal. It was tried to the court on a stipulation of facts between the parties which was made a part of the record. The Housing Corporation is a nonstock, nonprofit corporation organized in 1965 for the purpose, as stated in its certificate of incorporation, of providing housing for the elderly on a nonprofit basis. In furtherance of this purpose the Housing Corporation contracted with Fusco, a general contractor, on February 21, 1969, for the construction of an apartment building for the elderly. Construction began March 10, 1969, and was substantially completed March 1, 1971; initial occupancy took place thereafter on March 17. Purchases of all materials involved were made by the general contractor. Pursuant to his authority under General Statutes § 12-415, the defendant tax commissioner on April 10, 1972, issued a deficiency tax assessment against Fusco based upon purchases of materials used and consumed in the construction of the Housing Corpo ration's apartment for the elderly. Fusco appealed that assessment to the Court of Common Pleas pursuant to General Statutes § 12-422; a motion by the Housing Corporation to intervene as coplaintiff was granted. The court found the issues for the defendant and dismissed that appeal. On this appeal from that judgment, the Housing Corporation claims that Fusco was entitled to an exemption from the sales and use tax deficiency assessment under applicable statutory provisions and regulations promulgated by the defendant. We have stated that "[sjtatutes which grant exemptions from taxation must be strictly construed"; Renz v. Monroe, 162 Conn. 559, 562, 295 A.2d 558; 68 Am. Jur. 2d, Sales and Use Taxes, § 11; in addition, the burden of proving that an assessment of a deficiency tax was erroneous is on the plaintiff. General Statutes § 12-421; cf. Stone v. Sullivan, 154 Conn. 498, 501, 227 A.2d 76. A sales tax is imposed on all retailers making sales in Connecticut by General Statutes §12-408 (1). Reimbursement for the tax thereby imposed, furthermore, "shall be collected by the retailer from the consumer and such tax reimbursement, termed Tax' in this and the following subsections, shall be paid by the consumer to the retailer . . . ." General Statutes §12-408 (2). While the statute does not define the term "consumer," it is generally held that a general contractor who purchases material from a retailer for use in the construction of a building for his customer is the "consumer" of those materials within the meaning of that term as it appears in statutes similar to § 12-408 imposing a sales tax. G. S. Lyon & Sons Lumber & Manufacturing Co. v. Department of Revenue, 23 Ill. 2d 180, 185, 177 N.E.2d 316; State v. J. Watts Kearny & Sons, 181 La. 554, 559, 160 So. 77; State v. Christhilf, 170 Md. 586, 591, 185 A. 456; St. Louis v. Smith, 342 Mo. 317, 321, 114 S.W.2d 1017; Olson Construction Co. v. State Tax Commission, 12 Utah 2d 42, 44, 361 P.2d 1112. Fusco, as the "consumer" of the materials purchased for the construction of the apartment building for the Housing Corporation, was obligated under § 12-408 (2) to reimburse the retailers from whom those materials were purchased and upon whom the sales tax was imposed pursuant to § 12-408 (1). The use tax, General Statutes § 12-411, is imposed "on the storage, use or other consumption in this state of tangible personal property, purchased from any retailer for storage, use or other consumption in this state . . . ." §12-411 (1). "'By the use tax, a broader basis of taxation is established by the inclusion of purchases made without as well as within the state. " Stetson v. Sullivan, 152 Conn. 649, 653, 211 A.2d 685, quoting Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 299, 57 A.2d 128. As we stated on an earlier occasion, in commenting upon the purpose of the use tax, " [s]peaking generally, the sales tax is imposed upon transactions within the state, and the use tax upon articles bought in other states which, if bought in Connecticut, would be subject to the sales tax." United Aircraft Corporation v. O'Connor, 141 Conn. 530, 536, 107 A.2d 398. Liability to pay the tax is upon the person "storing, using or otherwise consuming in this state tangible personal property purchased from a retailer . . . ." § 12-411 (2). However, § 12-430 (5) provides for a credit against any sales tax paid on that property to another state. Thus the use tax is meant to complement the sales tax. Avco Mfg. Corporation v. Connelly, 145 Conn. 161, 172, 140 A.2d 479. The person "consuming tangible personal property purchased from a retailer" and used in the construction of a building pursuant to a construction contract is ordinarily the general contractor. It is the general contractor who "uses or consumes lumber and the like. He has no intention of reselling the lumber or the other items of construction material which he buys. He is not in the business of selling materials. He is in the business of using them to build houses: the business of contracting, or of selling houses." G. S. Lyon & Sons Lumber & Manufacturing Co. v. Department of Revenue, supra, 185. We also have stated "[i]n both intrastate and interstate transactions, the ultimate burden of the sales tax and the use tax falls on the purchaser." Robert Emmet & Son Oil & Supply Co. v. Sullivan, 158 Conn. 234, 239, 259 A.2d 636. Under this reasoning, Fusco, as the general contractor and purchaser of materials in this case, would be the party liable for payment of any use tax that might legitimately be imposed pursuant to § 12-411. Under General Statutes § 12-412, sales and use taxes imposed by § 12-408 and 12-411 "shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items: . . . (h) . . . Sales of tangible personal property to charitable and religious organizations." The term "sale" under the statute is defined, in pertinent part, to mean "[a]ny transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a con sideration." § 12-407 (2) (a). Although the Housing Corporation was issued a tax exemption permit as a "charitable or religious organization" by the defendant on September 24, 1971, there has been no showing that the purchase .of materials to be used in the construction of the Housing Corporation's apartment for the elderly constituted "sales" of such property to the Housing Corporation within the meaning of $$ 12-407 (2) (a) and 12-412 (h) thus qualifying the purchase of those materials for an exemption from the sales and use tax under § 12-412 (h). Such purchase might be characterized as a "sale to" the Housing Corporation if the language in the contract between Fusco and the Housing Corporation and the surrounding circumstances supported a conclusion that title to the materials in question passed directly from the retailer or retailers to the Housing Corporation when purchased by Fusco. Avco Mfg. Corporation v. Connelly, supra, 169, 175. However, unlike the contract in Avco, which expressly provided for transfer to and vesting of title in the government of the materials acquired by the general contractor; id., 165 n.2; the pertinent portion of the contract between the Housing Corporation and Fusco, made a part of the record, merely provides that Fusco was to furnish, "at his (its or their) own proper cost and expense . all the materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the said project." Nowhere in the record is it suggested that the Housing Corporation was in any way meant to become the titleholder or owner of the materials used by Fusco in its construction of the apartment for the elderly at the time of Fusco's purchase of those materials, such that that purchase might be held to constitute an exempt sale "of tangible personal property" to the Housing Corporation under § 12-412 (h). Nonetheless, a regulation promulgated by the defendant tax commissioner purports to exempt contractors in Fusco's position from payment of taxes imposed upon "the purchase of all materials or supplies used by him in fulfilling -. . . any . . kind of construction contract . . . where such contractor enters into a construction contract with a religious or charitable organization holding a valid exemption permit." Reg. No. 18 (b) (3) (now § 12-426-18 (b) (3) of the Regulations of Connecticut State Agencies). Regulation No. 16, predecessor of regulation No. 18, became effective October 1, 1947. 15 Conn. L.J., No. 19, pp. 7, 8. It was amended on May 1, 1948; 15 Conn. L.J., No. 50, pp. 7, 8; since that time, it has remained unchanged except for the renumbering of the regulations. The general statutes in effect at the time the amended regulation was promulgated directed the secretary of the state to submit a certified copy of such regulations to the general assembly, and provided that "[a]ny regulation or part thereof disapproved by the general assembly by resolution shall be void and shall not be reissued, and a copy of such resolution shall thereafter be published once in the Connecticut Law Journal." Sup. 1947, § 79i. No resolution was passed by the general assembly specifically disapproving regulation No. 16 (as amended) pursuant to § 79i. Regulation No. 16 (as amended) was promulgated pursuant to the tax commissioner's authority under Sup. 1947, § 3481, which provided that "[t]he commissioner shall enforce the provisions of this chapter and may prescribe, adopt and enforce rules and regulations relating to the administration and enforcement of this chapter." Chapter 78a, of which § 348i was a part, was the original Sales and Use Tax Act, the relevant provisions of which corresponded to those in the 1958 Revision which applied in this case. Of course, regulations issued pursuant to authority such as § 348i, if reasonable and consistent with law, have the force, and effect of statute. Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352; 68 Am. Jur. 2d, Sales and Use Taxes, § 143. We also recognize, however, that in all its proceedings the regulatory body promulgating such regulations "must act strictly within its statutory authority, within constitutional limitations, and in a lawful manner." Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 523, 134 A.2d 351. For example, "[n]o administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power." State ex rel. Huntington v. McNulty, 151 Conn. 447, 449, 199 A.2d 5. In the context of the taxing power, this means that an administrative rule or regulation such as regulation No. 16 (as amended) is ineffective if, inter alia, it purports to enlarge an exemption or confer an exemption not conferred by the statute. Follett's Illinois Book & Supply Store, Inc. v. Isaacs, 27 Ill. 2d 600, 608, 190 N.E.2d 324; Howard Pore, Inc. v. State Commissioner of Revenue, 322 Mich. 49, 66, 33 N.W.2d 657; S & M Finance Co. v. Iowa State Tax Commission, 162 N.W.2d 505, 510 (Iowa); American Distilling Co. v. State Board of Equalization, 55 Cal. App. 2d 799, 803, 131 P.2d 609; 68 Am. Jur. 2d, Sales and Use Taxes, § 143; cf. Kellems v. Brown, 163 Conn. 478, 498, 313 A.2d 53. As we have indicated, the only exemption relevant to this appeal specifically authorized by the general statutes from liability for payment of sales and use taxes such as those imposed on the purchase of the construction materials involved in this case is one where the purchase constitutes a sale to a charitable or religious organization within the meaning of the relevant terms in § 12-412 (h) and 12-407 (2) (a) as construed by this court. The statute does not specifically authorize an exemption from liability for such taxes whenever a contractor such as Fusco enters into a construction contract with a religious or charitable organization. To the extent that regulation No. 16 (as amended) purported to allow such an exemption under prior revisions of the general statutes, and to the extent that its successor, regulation No. 18, purports to allow that exemption under the present statutory scheme, these regulations have represented an attempt by the tax department to confer an exemption not authorized by the legislature. See Follett's Illinois Book & Supply Store, Inc. v. Isaacs, supra; see also State ex rel. Huntington v. McNulty, supra. However, the principle is well established that administrative acts, rules, and regulations unauthorized by the legislature at the time of promulgation may, for the most part, become valid and binding by ratification. Ex parte Endo, 323 U.S. 283, 287, 65 S. Ct. 208, 89 L. Ed. 243; Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301-02, 57 S. Ct. 478, 81 L. Ed. 659; State ex rel. Norris v. Chancey, 129 Fla. 194, 176 So. 78; 1 Am. Jur. 2d, Administrative Law, § 71. Ordinarily, some specific reference to the unauthorized regulation by the legislature in a subsequent statute, indicating its acquiescence in the agency's action, is required before the regulation is deemed to have been ratified by the legislature. Ibid; Mattingly v. District of Columbia, 97 U.S. 687, 690-91, 24 L. Ed. 1098. Significantly, our legislature has never referred to regulation No. 16 (as amended) or its successor, regulation No. 18, in either of the two revisions of the general statutes which reenacted the provisions of Sup. 1947, § 334i specifying the exemptions to be allowed from the sales and use tax. General Statutes (Rev. 1949) § 2096; (Rev. 1958) § 12-412. If the only legislative treatment of this question were the provisions of Sup. 1947, § 79i merely voiding regulations specifically disapproved by the general assembly, slight cause would exist to hold that regulation No. 16 (as amended) was ratified by the legislature's mere silence and subsequent reenactments of § 334i in § 2096 and § 12-412. However, the 1947 Supplement to the General Statutes also provided that "[a] 11 regulations heretofore made pursuant to law shall remain in effect until such time as they may be disapproved by the general assembly under the provisions of section 79i or revoked or amended under the provisions of section 78i." $ 81i. This provision reflected the familiar principle that an unauthorized administrative regulation can be "impliedly" ratified by the legislature and thereby acquire the force of law. United States v. Arredondo, 31 U.S. (6 Peters) 538, 555, 8 L. Ed. 547; 1 Am. Jur. 2d, Administrative Law, § 71. The promulgation of regulation No. 16 (as amended) took place in compliance with all of the preliminary procedural requirements specified in the statutes applicable at the time, i.e., § 75i, 76i, 79i, 80i, and the regulation was thus made "pursuant to law." In addition, regulation No. 16 (as amended) was neither disapproved by the general assembly under § 79i nor revoked or repealed under § 78i. Thus, while regulation No. 16 (as amended) may have been unauthorized by the general statutes when it was originally promulgated, it was impliedly ratified pursuant to § 81i upon the general assembly's refusal to disapprove it; accordingly, the regulation thereafter acquired the force of law, and the exemption conferred thereunder became as effective as if the legislature itself had originally enacted it. United States v. Arredondo, supra; Harrison v. Snyder, 217 Ark. 528, 532, 231 S.W.2d 95; 1 Am. Jur. 2d, Administrative Law, § 71. Regulation No. 16 (as amended) was never subsequently amended or repealed so that it did not subsequently become subject to the requirements applicable to promulgation of new regulations as provided in the succeeding revisions of the general statutes. General Statutes (Rev. 1949) §284; (Rev. 1958) §4-48; 4-170 (b) (as amended). Nor has regulation No. 16 (as amended) or its successor, regulation No. 18, been disapproved by the general assembly pursuant to applicable provisions of the successive revisions of the general statutes. See, e.g., General Statutes (Rev. 1958) §4-49; 4-170 (a) (as amended). Thus, the exemption from the sales and use tax deficiency assessment allowed to contractors by regulation No. 18, pursuant to which the defendant acted in this case, was effective. However, regulation No. 18 requires that certain procedural requirements be met before the contractor can claim the exemption. Specifically, the contractor who has entered into a building contract with a religious or charitable organization is obliged to certify to his suppliers that he is building for such an organization "holding a valid exemption permit." The purpose of this requirement, typical of regulations implementing this type of tax exemption, is to establish the nontaxability of the transaction at the time of the making of a purchase purportedly exempt under regulation No. 18 from the sales and use tax, and thus protect the supplier in not collecting the tax from the contractor. See, e.g., Zinc Engravers v. Bowers, 168 Ohio St. 43, 47, 151 N.E.2d 226; 68 Am. Jur. 2d, Sales and Use Taxes, § 148. Thus, to have been eligible for the purported exemption allowed by regulation No. 18, Fusco would have had to certify at the time of the making of the purchases involved in this case that the Housing Corporation held a valid exemption permit. Such an exemption permit could have been obtained by the Housing Corporation pursuant to regulation No. 15, which describes the procedure whereby a charitable or religious organization submits proof of its eligibility. Nonetheless, the Housing Corporation in this case did not hold the required exemption permit during the period of time that the coplaintiffs entered into their contract nor when the purchases by Fusco were made. Such a permit was not issued to the Housing Corporation until September 24, 1971. Although it is sometimes stated that failure to furnish an exemption certificate such as that required under regulations Nos. 15 and 18 prior to the time the purchase in question is consummated raises only a rebuttable presumption that the tax applies; Sterling Bag Co., Inc. v. New York, 256 App. Div. 645, 648, 11 N.Y.S.2d 297, aff'd 281 N.Y. 269, 22 N.E.2d 369; the general rule is that such provisions, which reasonably regulate the manner in which a purported exemption from taxation shall be established, must be strictly complied with, else the exemption will be treated as lost or waived. See Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234; W. A. Storing Co. v. Porterfield, 15 Ohio App. 2d 48, 238 N.E.2d 834; 68 Am. Jur. 2d, Sales and Use Taxes, § 148; 84 C.J.S., Taxation, § 304. Thus, Fusco was not eligible for an exemption from the deficiency assessment under regulations Nos. 15 and 18. The court did not err in reaching the conclusions challenged by the plaintiff or in overruling the plaintiff's claims of law, and properly dismissed the appeal from the deficiency assessment. There is no error. In this opinion the other judges concurred. The amount of assessment is not disputed. These two sections of the General Statutes (Rev. 1958) were reenactments in identical language of Sup. 1947, § 334i (h) and 329i (3) (a) which regulation No. 16 (as amended) was intended to implement when promulgated pursuant to § 348i. The proceedings of the legislature disclose no floor discussion of regulation No. 16 (as amended) nor of its successor, regulation No. 18, at the time of the reenactments of the pertinent sections of the General Statutes. To paraphrase a statement in an opinion by Justice Douglas of the United States Supreme Court concerning the question of legislative ratification of rules of law articulated in judicial opinions: "It is at best treacherous to find in . . . [legislative] silence alone the adoption of a controlling rule of law." Girouard v. United States, 328 U.S. 61, 69, 66 S. Ct. 826, 90 L. Ed. 1084. It has been stated that the mere reenactment of a statute in subsequent revisions of state and federal statutes can be treated as legislative approval of an unauthorized administrative regulation promulgated by an agency pursuant thereto. See, e.g., Cammarano v. United States, 358 U.S. 498, 511, 79 S. Ct. 524, 3 L. Ed. 2d 462; Service v. Dulles, 354 U.S. 363, 380, 77 S. Ct. 1152, 1 L. Ed. 2d 1403; Paul, Studies in Federal Taxation (3d series) 420, 429-30. Nonetheless, this doctrine has been severely criticized on the basis that the assumption upon which the doctrine is founded, viz., that the legislature in reenacting such statutes somehow thereby expresses its "knowledge" of the unauthorized regulation in question, fails to take account of the realities of the modern legislative process. United States v. Zions Sav. & Loan Assn., 313 F.2d 331, 336 (10th Cir.); Bloomfield Steamship Co. v. Sabine Pilots Assn., 262 F.2d 345, 347-48 (5th Cir.), cert. dismissed, 368 U.S. 802, 82 S. Ct. 20, 7 L. Ed. 2d 15; Safe Harbor Water Power Corporation v. United States, 303 F.2d 928, 934 (Ct. Cl.); Davis, 1 Administrative Law Treatise 327 n.12; cf. Commissioner v. Acker, 361 U.S. 87, 93, 80 S. Ct. 144, 4 L. Ed. 2d 127. And see also Helvering v. Reynolds, 313 U.S. 428, 432, 61 S. Ct. 971, 85 L. Ed. 1438, where it was said that the reenactment rule "is no more than an aid in statutory construction," which should apply only to agency constructions of ambiguous statutory terms, not to noninterpretive rules issued under a statute whose terms are not ambiguous. This provision was reenacted in General Statutes (Rev. 1949) § 287 but was not thereafter reenacted in the Revision of 1958.

The petition by the defendants Robert and Helen Cellar for certification for appeal from the Court of Common Pleas in Fairfield County is denied.

Arthur H. Healey, J. Upon a trial to a jury, the defendant Wilfredo Fernandez was found guilty of the. crimes of burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the second degree in violation of General Statutes (Rev. to 1979) § 53a-123. This appeal followed. On appeal, the defendant claims that the trial court erred: (1) in conducting a "partisan cross-examination" of the only defense witness, which resulted in the denial of his right to trial by an impartial jury, his right to put on a defense and his right to a fair trial; (2) in its jury instructions on the elements of larceny in the second degree in that it unconstitutionally relieved the state of its burden of proving that he acted with the requisite specific intent; and (3) in concluding that the evidence presented was sufficient to justify a verdict of guilty on either of the crimes involved. We find error on the first issue and remand for a new trial. We find no error on the third issue and will discuss the second issue only to the extent necessary to guide the trial court in connection with a new trial. We turn first to the claim involving the conduct of the trial judge. Some of the facts which the jury could reasonably have found are as follows: The crimes of which the defendant was found guilty arose out of the burglary of a Western Auto store in a Bridgeport shopping center around midnight on March 5, 1980. Two state's witnesses who were leaving a nearby bowling alley about that time heard the sound of breaking glass and observed a person running from the direction of the store. They observed the person jump into the passenger side of a van parked in front of the store. The van immediately sped away and both witnesses followed it in their car and made note of its license number. They then returned to the store where the police had already arrived in answer to a silent alarm. They described the van and gave its license number to the police, who in turn radioed the information to a dispatcher. About three to five minutes after the police broadcast the information, another Bridgeport police officer spotted the van a short distance away. After using the siren and lights on his police car, he stopped it. When he stopped the van, the defendant was in the driver's seat and his brother, Reuben Figueroa, was in the front passenger's seat. This officer ordered the two occupants of the van to get out of the vehicle. When they did, he placed them under arrest. While handcuffing the defendant, the officer observed an inch-long cut on his right wrist which he described during his testimony as having "fresh blood, but not flowing," "semi-coagulated." The police search of the van at that time disclosed three television sets and a "large bulky hammer" inside the side panel door. The manager of the Western Auto store came to the store shortly there after and reported that three television sets were missing. The front window of the store had been broken. The defendant's trial took place in October, 1980, at which time the state produced the following witnesses: the two witnesses who pursued the van and obtained its license number, the two police officers who responded to the silent alarm at the store, and the police officer who actually apprehended the defendant and his brother. The defendant did not testify at the trial. His brother, Reuben Figueroa, was the only witness produced by the defense. On August 20,1980, prior to the defendant's trial, Figueroa had pleaded guilty to charges, arising out of this incident, of burglary in the third degree and larceny in the second degree. He had not been sentenced as of the time he testified at his brother's trial. He testified that no one had promised him anything in return for pleading guilty and that there was no plea bargain. The trial judge at the defendant's trial was the same judge before whom Figueroa had entered his guilty pleas in August, 1980. On direct examination, Figueroa said that the defendant, who owned the van, had picked him and a friend up earlier on the evening of the burglary and that they had had a couple of bottles of brandy to drink. Because the defendant had had too much to drink, he told Figueroa to drive as he could not, and he then fell asleep on the bed in the back of the customized van. Figueroa, who needed money to buy drugs, stopped at the Western Auto store, "pulled out" a hammer and broke the store window. He and the "other kid," who he said was also in the van, went inside. Figueroa testified at the trial that he went in twice and brought out one television each time and that the "other kid" went in just once and brought out one television. He also said that the defendant took no part in this break because he was asleep in the bed in the rear of the van but that "some body else did." When defense counsel asked him who that person was, he answered: "I would like to keep his name out of the Court." Figueroa maintained that he drove the van away from the store, and when he saw the flashing light of the pursuing police cruiser he woke up the defendant. He did this because he did not have a license at the time and because the defendant owned the van. Thereupon, the defendant, according to Figueroa, assumed the driver's seat. The "other kid," Figueroa said, was able to exit the "slide door" on the passenger side of the van and "took off" unnoticed by the police officers who had stopped the van. On cross-examination, Figueroa reiterated that he had been drinking and was using drugs at the time. He also said that he broke the store window with a hammer and that he went into the store twice bringing out one television each time. The "other person" only went in once. After he was further questioned by the state and after he admitted that he remembered pleading guilty on August 20, 1980, the state indicated that it wanted to introduce a certain transcript to impeach Figueroa's credibility. At that juncture, the following occurred: "Q. Mr. Figueroa do you remember telling Your Honor at the time that you pled guilty to the three crimes that you were charged with and pled guilty to, that you went inside. That once inside, you grabbed a couple of television sets and then went back outside. When his Honor asked you how many times you went in and out. You said just once. His Honor said, 'just once, are you sure of that?' You replied, yes. He said, 'how many television sets did you take?' You said, 'one.' Do you remember saying that? "A. No, I'm sorry, he asked me and I told him twice. "The Court: You never said that? "A. No, I did not. "The Court: You can introduce it now. I will see it first. Mr. Figueroa, I will ask you once more. I just want to make sure. On August 20, 1980 in this Courtroom, did you remember me saying to you, how many times did you go in and out. And you said, huh, do you remember saying that? "A. Yes, but— "The Court: Just wait, let me do this. I said 'how many times did you go in and out?' And you said, 'just once.' Do you remember saying that? "A. No, I do not. "The Court: I said, 'just once, are you sure of that?' You said, 'yes.' Do you remember saying that? "A. No. "The Court: Then you never said that? "A. I never said that. I told you twice, and I remember saying that. Because you had asked me— "The Court: I don't want to hear anything more. [A]ny objections?" The balance of the cross- examination by the state is significant in two respects: Figueroa again maintained that he entered the store twice and that while he loved his brother, the defendant, and would do anything he could for him, he had pleaded guilty "because I did do it. He had no part in it." On redirect, he reiterated his love for his brother but said he had pleaded guilty "because I did it" and his brother did not have anything to do with it. Thereupon, after the state and defense counsel indicated that they had no further questions of Figueroa, the following occurred: "The Court: Mr. Figueroa, who was with you? "A. Who was with me? "The Court: Yes. "A. I don't want to say the person's name. "The Court: I will ask you once more, who was with you? "A. I cannot say the person's name, the person that was with me is in jail at this moment. "The Court: Maybe you weren't clear about what I asked you. Who was with you? "A. Like I said before, I cannot say that person's name. "The Court: Is it that you cannot or will not? "A. I cannot. "The Court: Can't. "A. I don't know what that would bring upon myself, saying that person's name. "The Court: I ask you once more, what is his name? "A. I can't say his name. "The Court: Any questions based on my questions Mr. Florek? "Mr. Florek: No questions, Your Honor. "The Court: Any questions based on my— "Mr. Newman: No Your Honor." The defense then rested its case; there was no rebuttal offered. During its charge to the jury, the trial court included the following in its instructions: "Now one other subject that I should mention to you, is that you are not to infer or take any meaning from the [intonation] of my voice or the [manner] in which the Court has to [sic] replied to or spoken to counsel or witnesses in the [course] of the trial. Be as objective and as fair as you can in weighing the credibility of the witnesses that you have heard. Do not feel, as a result of any questions I may have asked any witness, that I have endorsed, accepted, or rejected so much of the testimony which I inquired about. As it is in no way intended to remove that testimony from your consideration as to its credibility." Against this background, the defendant's essential claim of error is that by the trial judge's "partisan" examination of the only defense witness the judge became an "unsworn impeachment witness" for the prosecution and thus deprived the defendant of his right to trial by an impartial jury, his right to put on a defense before that jury and his right to a fair trial. Pointing to the colloquies between the trial judge and Figueroa, the defendant further argues that the "curative" instruction did not remedy the denial of his constitutional rights. Rejecting the state's argument that the trial judge did not "testify" but only questioned permissibly from a document, the defendant contends that the trial judge proceeded as a cross-examiner and that the effect was to indicate that his memory of the plea proceedings did not "mesh" with Figueroa's testimony. In addition, the defendant argues that the questioning in the second colloquy was consistent with the judge's questioning of Figueroa in the earlier colloquy and that it, in effect, served "to inform the jury that the judge did not believe the witness' [Figueroa] testimony and, by extension, the entire defense theory of the case." The state disputes the defendant's claims and counters that the trial judge did not "testify" but rather that he permissibly tracked the transcript of Figueroa's plea proceeding as he read it. The state maintains that the missing "third man" colloquy was proper and not partisan, keeping in mind that Figueroa had waived his privilege against self-incrimination to testify and had no right to refuse to identify the missing "third man." The state also contends that the trial judge did not indicate his opinion as to Figueroa's credibility or "tell the jury that his opinion was for their consideration" but maintains that his "questions disclose[d] only a concern for the truth." The state claims that any error, if any there were, was cured by the jury instructions which made clear that the credibility of witnesses was strictly for the jury to decide. In any event, the state claims that we should not review this claim of error because no objection was made at trial and neither State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), nor the "plain error" doctrine, both advanced by the defendant to afford review, should permit our review here. The second "exceptional circumstance" permitting review under Evans is "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, supra, 70. Our examination of the record demonstrates that it is adequate to support this claim. " 'Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U. S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 [1941]; Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 [1958]. In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an "atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding." Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].' State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975)." State v. Gordon, 197 Conn. 413, 424-25, 497 A.2d 965 (1985). "The function of the court in a criminal trial is to conduct a fair and impartial proceeding. Glasser v. United States, [supra]." State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). "The role of the Trial Judge is neither that of automaton nor advocate"; People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 422 N.E.2d 556, 439 N.Y.S.2d 896 (1981); nor is a judge merely an "umpire in a forensic encounter" but "[h]e is a minister of justice" and in "whatever he does . . . the trial judge should be cautious and circumspect in his language and conduct." (Citations omitted.) Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); see Quercia v. United States, supra; State v. Gordon, supra, 425. In Yut Wai Tom, the New York Court of Appeals appropriately pointed out: "As defined in subdivision (a) of standard 6-1.1 of the American Bar Association Standards Relating to the Administration of Criminal Justice (Special Functions of the Trial Judge [1978]): 'The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial.' Under that standard, as the commentary to it reveals, 'it is appropriate for the trial judge from time to time to intervene in the conduct of a case. Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts. The judge may interrogate a witness after a cross-examination that appears to be misleading to the jury.' It is, however, important, according to that commentary that the Judge 'be aware that there may be greater risk of prejudice from overintervention than from underintervention. While the judge should not hesitate to exercise his or her authority when necessary, the judge should avoid trying the case for the lawyers.' " People v. Yut Wai Tom, supra; see Moll v. State, 351 N.W.2d 639, 644 (Minn. App. 1984). We recognize that "[t]he trial judge occupies an impartial position and one of commanding authority, and it often happens in a court-room that he may ascertain the truth when counsel has failed." State v. Cianflone, 98 Conn. 454, 469, 120 A. 347 (1923). While it is his responsibility to conduct the trial as impartially as is humanly possible, a trial judge must avoid "taking an apparent position of advocacy in a case before him"; he must refrain from making "remarks which are indicative of favor or condemnation or which disparage a defendant before the jury." State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975). Particularly, there should be no questioning that appears to reject a defendant's credibility and implies judicial support of a prosecution witness' testimony. See, e.g., People v. Jackson, 97 Mich. App. 660, 666, 296 N.W.2d 135 (1980). This applies to any witness, and it should be kept in mind that the "[interrogation of witnesses tends to assimilate the court's role with the advocate's, and may tread over the line separating the provinces of judge and jury. . . . There is the risk that the questioning [of witnesses] may bear 'the seeds of tilting the balance against the accused' and place 'the judge in the eyes of some jurors, on the side of the prosecution.' " United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969). " 'The influence of the trial judge on the jury is necessarily and properly of great weight,' Starr v. United States, 153 U.S. 614, 626 [14 S. Ct. 919, 38 L. Ed. 841 (1894)], and jurors are ever watchful of the words that fall from him." See Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946). These admonitions and cautions "are prompted by the truism 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. The judge's attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice—in many cases without warrant in fact." State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977). The trial judge can question witnesses both on direct and cross-examination. For example, it may be necessary to do so to clarify testimony as he has a "duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner." Ray v. United States, 367 F.2d 258, 261 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S. Ct. 863, 17 L. Ed. 2d 785 (1967), quoted in State v. Bember, supra, 402; State v. Cianflone, supra, 468. While no precise theorem can be laid down, we have held that it is proper for a trial court to question a witness in endeavoring, without harm to the parties, "to bring the facts out more clearly and to ascertain the truth"; Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958); in trying to bring out the facts to resolve a doubt it apparently had as to the admissibility of certain evidence; Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978); in undertaking reasonable efforts to restrain a garrulous witness; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500 (1953); and in intervening where the witness is embarrassed, has a language problem or may not understand a question. State v. Cianflone, supra. Judge Kaufman, in speaking for the Second Circuit Court of Appeals, wisely observed that "[tjhere is simply no handy tool with which to gauge a claim that a judge's conduct improperly has shifted the balance against a defendant." United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir. 1973). Such a decision is reached "only after the most thorough and careful deliberation," as in such cases the court faces a "special quandary" stemming from the fact that " '[the court is] not given the benefit of witnessing the juxtaposition of personalities which may help prevent reading too much into "the cold black and white of a printed record." ' United States v. Grunberger, 431 F.2d 1062, 1067 (2nd Cir. 1970)." United States v. Nazzaro, supra. Error found in the conduct of a trial judge which, upon the whole record, can safely be said to have deprived a criminal defendant of a fair trial cannot, however, be ignored. There is no doubt that a criminal trial court judge has a difficult task and is forced at each trial to make many decisions. Nevertheless, the jury alone is the trier of fact and any trespass, actual or reasonably perceived, on that exclusive function requires special scrutiny. With that, we take up first the trial judge's questioning of Figueroa concerning his testimony at the trial as compared with his statements to the same judge when he pleaded guilty to crimes which were the subject of the defendant's trial. After defense counsel had examined Figueroa about his earlier guilty plea, the state cross-examined him concerning the number of times he entered the store during the burglary. Receiving what it claimed were inconsistent responses from Figueroa, the state indicated to the court that it wished to impeach him by the transcript of the guilty plea proceedings. The trial judge intervened and proceeded to examine Figueroa on this. A certified copy of that portion of the transcript upon which the trial judge examined Figueroa was made an exhibit and passed to the jury at that time. It is unrealistic to downgrade the impact upon the jury of this questioning, especially when it came from the trial judge who had also taken the guilty plea, and where its object was the sole defense witness. See State v. Lint, 361 A.2d 926 (Me. 1976). Significantly, the object of this judicial examination was the witness who had said, both in pleading guilty and in his testimony in this case, that he, and not the defendant, had committed the crimes charged. This directly implicated his credibility. Moreover, the state's admitted theory in this case was that the defendant was liable as a principal and not as an aider or abettor. His credibility, thus implicated, called seriously into question the defense theory at trial that the defendant, because he was asleep in the rear of the van due to his intoxication, slept throughout the actual break and never entered the store. Figueroa's credibility on the third "missing person" theory could not escape the tremor emanating from that examination by the trial judge. While it is true that whether the due process requirement of the fourteenth amendment of fundamental fairness in state criminal proceedings is met is generally considered on a case-by-case basis, "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); see Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S. Ct. 330, 78 L. Ed. 674 (1934). We have no reason to doubt that the trial judge, in each colloquy, was basically concerned about putting the truth before the jury. Good intentions, however, cannot serve to obviate an unconstitutional deprivation of a fair trial. Where credibility was so significant, as it was here, a trial judge should eschew an examination of a key witness which might easily have given the jury the impression that the court had doubts concerning the truthfulness of his testimony on a crucial issue. See United States v. Tobin, 426 F.2d 1279, 1283 (7th Cir. 1970); see also People v. Jackson, supra (trial court's cross-examination of defendant held error where it "cast a cloud of judicial skepticism" over such testimony). This record discloses that this occurred in this case. Even where "an alert and capable judge . . . feels that he can assist . by participating in the interrogation of witnesses . he would ordinarily do well to forego such intrusion upon the functions of counsel, thus maintaining the court's position of impartiality, in the eyes of the ever-observant jurors." United States v. Carmel, 267 F.2d 345, 350 (7th Cir. 1959); United States v. Tobin, supra, 1282; United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964); People v. Yut Wai Tom, supra, 57 ("[a] Trial Judge's examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness"). The fact that neither of the two colloquies was as lengthy as in some cases does not militate against reversible error because, on balance, in the final analysis, the ultimate test must be substance, not quantity. The questioning in this case also worked to disadvantage the defendant's case in that it fairly tended to convey to the jury the trial judge's "own notion" of what inferences might be reasonable for it to draw. See generally United States v. DeLoach, 504 F.2d 185, 190 (D.C. Cir. 1974). The challenged questioning did "undercut" the defendant's case. United States v. Hill, supra, 1207; United States v. Brandt, 196 F.2d 653, 656 (2d Cir. 1952). The questioning on both occasions was better left to counsel and was in the nature of an examination that inured to the benefit of the state. We are certainly not suggesting that trial judges absolutely refrain from examining witnesses. Rather, we are suggesting that it be done when justice so requires but with caution and circumspection lest an appearance of partiality, although not intended, emerge. Judicial conduct that takes "on the aspect of advocacy" must be avoided. Blunt v. United States, 244 F.2d 355, 365 (D.C. Cir. 1957) (Bazelon, J.). As we have already noted, greater restraint is required in criminal cases. See 81 Am. Jur. 2d, Witnesses § 420; 2 Wharton, Criminal Evidence (13th Ed. Torcia) § 407. In explicating the role of the impartiality of the trial judge, Judge Learned Hand said: "Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge." United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945); see Johnson v. Scully, 563 F. Sup. 851, 859 (E.D.N.Y 1983). Judge Kaufman's statement in Nazzaro is also apposite here: "an appearance of impartiality and judicious detachment must prevail at all times. While concededly the line separating permissible and impermissible judicial conduct in the courtroom is drawn with the finest point, we are of the firm view that the line was crossed in this case." United States v. Nazzaro, supra, 313. That line was crossed in this case. The prejudice that resulted from the denial of the defendant's constitutional right to a fair trial requires that we order a new trial. State v. Gordon, supra, 425-26. In reaching this result, we also concluded that the curative instruction did not cure the impact of the prejudice caused. See Quercia v. United States, supra, 472; United States v. Nazzaro, supra, 312-13. Such instructions ordinarily do prevent reversible error. Judges, both appellate and trial, may expect, "as they must if our judicial system is to survive, that conscientious jurors will respect and follow the instructions . . . ." State v. Manley, 54 N.J. 259, 270, 255 A.2d 193 (1969). We have always given great weight to curative instructions in assessing claimed errors. See State v. Binet, 192 Conn. 618, 632, 473 A.2d 1200 (1984); State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Yet we have said that "a curative instruction is not inevitably sufficient to overcome ." the impact of prejudice. State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Only when we are persuaded, as we are here, that the prejudicial impact of the examination resulting from the two colloquies has probably overborne reasonable juror conscientiousness must we decline to accept the claimed efficacy of a curative instruction. This is one of those rare cases when we are so persuaded. The defendant next claims that the trial court's instructions to the jury on the element of intent required for conviction of larceny in the second degree violated his constitutional rights by relieving the state of its burden of proving the requisite specific intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). We agree with the defendant's argument that if we find, as we do, reversible error on the claimed error addressed to the conduct of the trial judge, a new trial must be ordered on both the larceny and the burglary charges even if we were to resolve the Sandstrom issue in favor of the state. We address the Sandstrom claim for the purpose of providing guidance at the new trial inasmuch as the challenged instruction was erroneous. As there was no objection to the charge to the jury nor a request for a different charge after the instructions were given, it must first be determined whether this claim of error is reviewable under the "exceptional circumstances" rule of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). "[W]e have repeatedly held that a claim of error under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), can be considered under the 'exceptional circumstances' rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Mason, 186 Conn. 574, 582, 442 A.2d 1335 (1982); State v. Cosgrove, 186 Conn. 476, 482-83, 442 A.2d 1320 (1982); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980)." State v. Shine, 193 Conn. 632, 644 n.11, 479 A.2d 218 (1984); see State v. Johnson, 185 Conn. 163, 167, 440 A.2d 858, aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). We will review this claim. In its general instructions to the jury on intent, the trial court stated: "With regard to the question of intent, intent may also be presumed. This is because a man is presumed to have intended to do the act which he did. Accordingly until some credible evidence comes into the case tending to prove that because in the light of the circumstances as he honestly and in good faith believe[s] them to be, the act which he did would appear to be lawful or because the act was an accident until such credible evidence appears in the case. The State may rest upon an assumption that an accused intended to commit an act which he did commit. So I will charge you again as to intent, as to whether you—not whether you, the fact that you must have intent for a criminal act, but the State may rely on a presumption for that." The defendant claims that this general instruction to the jury on intent combined with specific instructions on the larceny count impermissibly shifted the burden of proof to the defendant, thereby relieving the state of its burden of proof on intent. The state claims that the general instructions on intent merely created a presumption which shifted the burden of production to the defendant and that such shifting of the burden of production should be held constitutional because it does not offend due process. In any event, the state claims that the instructions on the intent required for conviction of larceny, taken as a whole, are not erroneous. The United States Supreme Court in Sandstrom v. Montana, supra, 517, 524, held that a jury instruction which stated that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" may have been interpreted by the jury "as constituting either a burden-shifting presumption . . . or a conclusive presumption . . . . " "[Ejither interpretation would have deprived defendant of his right to the due process of law" and was therefore unconstitutional. Sandstrom v. Montana, supra, 524. It should be noted that "Sandstrom does not invalidate, for example, the use of an 'entirely permissive inference or presumption, which allows—but does not require— the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.' Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979). . . ." State v. Johnson, supra, 167-68. It has been firmly established as a constitutional right that the state bears the burden of proof beyond a reasonable doubt on each essential element of the crime charged. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978). General Statutes § 53a-119 and 53a-123 define larceny in the second degree, of which the defendant was convicted, as including the "intent to deprive another of property or to appropriate the same to himself or a third person." A specific intent is an essential element of larceny in the second degree and as such must be proved beyond a reasonable doubt by the state. State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979) (state must prove intent in an accessory to attempted robbery charge). The burden of proof on intent "ordinarily can be borne only by the presentation of circumstantial evidence, because intention is a mental process that necessarily must be proved through inferences drawn from the defendant's statements and actions." State v. Harrison, supra, 695. Despite the elusive nature of proving intent, the state cannot escape its burden that it must prove intent when it is an element of the crime charged. An instruction such as the one given in this case is worded in terms of a presumption and shifts the burden to the defendant to prove that he did not have the required mental state or intent. Shifting the burden of proof on an essential element to the defendant "denies him the protections of the presumption of innocence and of due process of law." Id., 693; see In Re Winship, supra, 364. The trial court's general instructions in this case almost parallel those which we have on prior occasions deemed violative of due process absent a sufficient cure. State v. Truppi, 182 Conn. 449, 452-53, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Harrison, supra, 692. Finally, the defendant claims that the evidence was insufficient to establish his guilt of either crime charged beyond a reasonable doubt. "Although we have ordered a new trial, 'we must also address this claim, because if we were to rule that the evidence was insufficient, the defendant would be entitled to an acquittal rather than a new trial. Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).' State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). ' "In determining whether the evidence is sufficient to sustain a verdict, 'the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.' . . ." (Citations omitted.) State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981); see also Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).' State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). In reviewing the evidence we must construe it in a light most favorable to sustaining the verdict. State v. Ferrell, supra." State v. Pellegrino, 194 Conn. 279, 294, 480 A.2d 537 (1984). In making this claim, the defendant argues that the sole theory upon which his conviction can be predicated is that he actually entered the store and took the property in question. The state agrees with this claim and argues that the evidence was sufficient to support the conviction of each crime charged on this theory. We agree with the state. We have set out earlier certain evidence concerning the crimes charged which was before the jury and which it could reasonably have found. From this evidence, the jury could have reasonably inferred that the defendant entered or at the very least reached inside the store and removed at least one of the three stolen television sets found in the van by the police. It could also have reasonably inferred that the cut on his right wrist came about from his going in past or reaching past the broken glass of the store to remove a television. The evidence of the arresting police officer's observation, less than ten minutes after the break, of the blood On the cut wrist as "semi-coagulated," "fresh blood, but not flowing" is significant. Moreover, the jury could have credited Figueroa's testimony that he himself removed only two of the three television sets from the store even if it did not credit his testimony regarding the unnamed missing person who he testified participated with him in these crimes. The jury could thus have reasonably found that the defendant was the only one who could have entered the store and removed the third television set. "There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned." State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984), quoting State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972). In sum, employing the required standard of review, the evidence was sufficient to permit the jury to find the essential elements of each of the crimes charged proved beyond a reasonable doubt. There is error, the judgment is set aside on both counts and a new trial is ordered. In this opinion the other judges concurred. General Statutes § 53a-103 provides in part: "(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." General Statutes (Rev. to 1979) § 53a-123 provides in part: "(a) A person is guilty of larceny in the second degree when . (2) the value of the property or service exceeds five hundred dollars . . . ." General Statutes § 53a-119 provides in part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." At that time the following colloquy took place: "Mr. Florek: I am objecting to the introduction that ah— "The Court: Legal basis. "Mr. Florek: Your Honor, the purpose of the Prosecution is to impeach Mr. Figueroa [sic] credibility. "The Court: That's all it's used for. "Mr. Florek: Then that's fine. Nevertheless, Your Honor I think— "The Court: Counsel, when you say that's fine, tell me what you mean. I am not clear on that. That means you have no objection? "Mr. Florek: No it means, I do have an objection. "The Court: Okay, I will hear the objection. A legal objection. "Mr. Florek: My objection is that the impeachment is too tenuous in this situation. Your Honor, it's not what Mr. Newman, the Prosecutor is trying to impeach him on the basis of. "The Court: Counsel, don't tell me a story. I heard your legal basis. Your claim? "Mr. Newman: Relevant, Your Honor, impeaches the witness credibility. "The Court: Overruled. "Mr. Florek: Can I have an exception, Your Honor? "The Court: You can have an exception. ." This is the instruction which the state claims was "curative" of any of the defendant's claims with respect to the trial court's conduct, if there was any error. The defendant did not testify at the trial. The state's brief freely admits on appeal that the defendant "is correct in his contention that the only theory on which the Defendant can be convicted is that he actually entered the building and took the property in question." (Emphasis added.) Whether the evidence of guilt is "overwhelming" or the case was a "close call" has been given weight in assessing an error such as that claimed in this case. See, e.g., United States v. Pellegrino, 470 F.2d 1205 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S. Ct. 1556, 36 L. Ed. 2d 310 (1973); United States v. Hill, 332 F.2d 105 (7th Cir. 1964). The defendant concedes that the "language of the specific burglary-charge was sufficiently precise and elaborate to alleviate any constitutional infirmity in the general instructions on the issue of intent." The state, in its brief, suggests that the punctuation of the transcription of the instruction should omit the misplaced period after "case" and continue it as one sentence.

Per Curiam. This is an appeal by the plaintiff from an order modifying a prejudgment remedy. On June 13, 1980, the trial court issued a prejudgment remedy against real estate of the defendant in the amount of $55,000 for money loaned and services rendered by the plaintiff. On June 27,1980, the defendant filed a motion to reduce the prejudgment remedy, which was heard by the court on July 21, 1980. On October 3, 1980, the court reduced the prejudgment remedy to $20,000. Although the order is dated October 3, 1980, notice of the order was not mailed to the parties until October 7, 1980. On October 14, 1980, the trial court granted the plaintiff an extension of time in which to file his appeal until October 20, 1980, on which date the appeal was filed. On October 24, 1980, the defendant moved to dismiss the appeal claiming it was not timely filed. General Statutes § 52-278Z provides for appeals from orders dissolving or modifying prejudgment remedies. Subsection (b) provides: "No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken." Because the statute contains no language authorizing an extension of time, the defendant argues that the trial court lacked the authority to grant the plaintiff's request. We disagree. The fact that the appeal statute specifies a time period in which to take an appeal does not mean that an appeal taken beyond the specified time is void. The untimely filing of an appeal is merely an irregularity and not a jurisdictional defect. LaReau v. Reincke, 158 Conn. 486, 493, 264 A.2d 576 (1969); Sackett v. Carroll, 80 Conn. 374, 376, 68 A. 442 (1908). Moreover, an implied power exists in the trial court to grant an extension of time within which to take an appeal even though no express power is contained in the appeal statute; Morici v. Jarvie, 136 Conn. 370, 372, 71 A.2d 556 (1950); Forbes v. Orange, 84 Conn. 577, 579, 80 A. 710 (1911); New York, N. H. & H. R. Co. v. Illy, 79 Conn. 526, 528, 65 A. 965 (1907); Maltbie, Conn. App. Proc. § 297; so long as the motion for an extension of time is filed within the time specified in the statute or rule for the taking of the appeal. More v. Urbano, 150 Conn. 687, 688, 185 A.2d 475 (1962); see Palmer v. Des Reis, 136 Conn. 627, 629-30, 73 A.2d 327 (1950). The appeal in this case, having been filed within the time period allowed by the extension, was timely filed. The defendant's motion to dismiss the appeal from the Superior Court in the New Haven judicial district is denied. General Statutes $ 52-278Í provides as follows: "appeal, (a) An order (1) granting or denying a prejudgment remedy following a bearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal, (b) No sueh appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken, (e) No sueh order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any sueh stay shall be granted only if the party taking the appeal posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damages which may accrue as a result of such stay, (d) If a motion to discharge such prejudgment remedy is brought by the defendant, the property affected by sueh remedy may be restored to the use of the defendant, if the defendant posts a bond with surety in an amount determined by such judge to be sufficient to indemnify the plaintiff for any damages which may accrue by the defendant's continued use of such property, until sueh time as such motion is decided."

The defendant's motion for a review of the order of the trial court dated June 5, 1975, terminating the stay of execution resulting from the appeal from the Superior Court in Fairfield County is granted and the trial court is directed to file a finding, such as circumstances permit, setting forth the basis for its ultimate conclusion to terminate the stay, including any claims of law made together with its conclusions thereon.

Per Curiam. On the basis of the evidence presented, the jury could have found the following: The defendants own a multiple dwelling located on Maple Street in Bridgeport. The plaintiff was a social guest at Andre Mendoza's apartment, which was a duplex with rooms on both the ground floor and first floor. Access to the Mendoza apartment was gained by means of a common, outside staircase which led to a landing and into a common hallway from which one could either enter the Mendoza apartment or go up another staircase to an apartment on the second floor. There was a light fixture located under the cornice of the porch at the top of the common, outside staircase. On the morning of August 31,1974, the defendant Ben Lavin went to collect the rent, as was his weekly custom. At that time there was no light bulb in the fixture at the top of the common stairway. He never checked this outside light because he felt that it was not his responsibility. On that morning, the garbage cans were full and there was an accumulation of broken glass, beer cans and junk in the area at the bottom of the outside staircase. There was a window frame with broken glass and no pane of glass in the lower portion of the ground floor store room adjacent to this area. Mendoza had complained to Lavin ahont the broken glass and windowpane approximately one month previously, but nothing was done. On that evening, the plaintiff was a visitor at a party held in the Mendoza apartment to celebrate the baptism of a daughter. The plaintiff left the apartment by the outside staircase. It was dark and there was no light on the outside staircase. Contrary to the defendants' claim, the plaintiff had no bottle in his hand when he left the party. As he was proceeding down the staircase, he was caused to fall and severely cut his left hand and arm on the accumulation of glass at the bottom of the staircase. His hand was bleeding profusely and a man whom he did not know volunteered to take him to the hospital. At the hospital, the plaintiff told his companion to tell the hospital authorities his name and address. At no time did he state that he slipped on the staircase with a bottle in his hand. The jury returned a verdict for the plaintiff and the defendants have appealed, assigning error in an evidentiary ruling and in the charge to the jury. During the course of the trial, the plaintiff sought to introduce the hospital record with the exception of the following notation: "Friend states pt. fell down stairs with a bottle & cut L hand." The defendants claim that the person with the plaintiff was acting as agent for the plaintiff and as such his statements should not be excluded as hearsay evidence. The defendants point to no evidence to support an implied agency other than the fact that the "friend" accompanied the plaintiff to the hospital, and that the plaintiff, who evidently did not speak English, told the "friend" to tell the hospital authorities the plaintiff's name and address and that he had fallen. An agency relationship must he proved by a fair preponderence of the evidence. Iodice v. Rusnak, 143 Conn. 244, 247, 121 A.2d 275. Before evidence can be admitted to show what an agent said, it must be established that the agent was authorized by the principal to make an admission. Wade v. Yale University, 129 Conn. 615, 618, 30 A.2d 545. No evidence relating to such authority was offered by the defendants. Further, the statements of an agent as to how an accident happened, made some time after it occurred, are mere recitals of a past event and are inadmissible in evidence against his principal. Such statements are objectionable as hearsay. Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 341, 160 A.2d 899; Morse v. Consolidated Ry. Co., 81 Conn. 395, 399, 71 A. 553. The court was not in error in disallowing the statement in question to be introduced in evidence. The claim that the court erred in its charge relating to the landlord's duty to exercise reasonable care in the lighting of the common, outside staircase needs no comment other than to state that the charge was correct in law and sufficient to guide the jury in their determination of that issue. State v. Williams, 169 Conn. 322, 336, 363 A.2d 72. There is no error.

The defendants' "Motion to Set Aside Decision," dated July 25, 1978, is denied by the court.

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

Per Curiam. This is an action for specific performance of an oral agreement for the sale of real estate. The plaintiff, H. Pearce Real Estate Company, Inc., alleges that the defendant, Jean E. Kaiser, contracted to convey certain property located in Madison. The defendant demurred to this complaint on the basis of the Statute of Frauds, and the trial court sustained her demurrer. The plaintiff appeals from the subsequent rendition of judgment for the defendant. The only issue upon this appeal is whether the trial court erred in holding that the plaintiff had failed to set forth in its complaint sufficient acts of part performance so as to avoid the Statute of Frauds. Contracts that would otherwise be unenforceable without a writing sufficient to comply with the Statute of Frauds, G-eneral Statutes § 52-550, are nonetheless enforceable because of part performance if two separate but related criteria are satisfied. First, the contract alleged must satisfy the evidentiary function of the Statute of Frauds. "[T]o constitute part performance the conduct relied upon must be referable to and consistent with the oral agreement." Andrews v. New Britain National Bank, 113 Conn. 467, 474, 155 A. 838 (1931); Santoro v. Mack, 108 Conn. 683, 691, 145 A. 273 (1929). Second, the conduct alleged to have been induced by reliance on the oral agreement must be of such character that "repudiation of the contract by the other party would amount to the perpetration of a fraud." Santoro v. Mack, supra, 690. These criteria have recently been restated to require a showing that "the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement." Restatement (Second), Contracts §197 (Tentative Draft No. 4, 1968). The plaintiff's allegations of part performance in this ease are stated in its complaint and in the exhibit that it incorporates by reference and by attachment. The plaintiff relies upon a conversation of January 11, 1978, a letter confirming that conversation sent by the plaintiff to the defendant on January 16, 1978 (exhibit A), and work done to obtain a survey, specification, plan of development and other engineering services, in conformance with exhibit A, between January and February 2, 1978, when the defendant arranged to sell the land to a third person. Exhibit A is therefore crucial to evaluation of the plaintiff's complaint, and its terms control the propriety of the defendant's demurrer. Redmond v. Matthies, 149 Conn. 423, 426, 180 A.2d 639 (1962); Utley v. Nolan, 134 Conn. 376, 377, 58 A.2d 9 (1948). The trial court determined that exhibit A, the plaintiff's letter describing its understanding of the "consensus" reached at the meeting held January 11,1978, was "merely an expression of a preliminary or anticipatory act or acts on which to predicate a future contract." We agree. The language of exhibit A is replete with indicia of tentativeness: "we would purchase," "we would go ahead," "we "would offer," "we would request," "we would like." Tellingly, the letter concludes: "This is only a preliminary agreement subject to modification to accommodate our mutual interests. The primary purpose is to come to a general agreement so that a contract can be prepared." Further, the letter stipulates that the buyer would pay a $5000 deposit upon accepted agreement, and no such payment is alleged in the plaintiff's complaint. Without allegations of present agreement to contract, oral or otherwise, and without allegations of present assent by the defendant to be bound, the plaintiff has failed to allege basic requirements of the doctrine of part performance. The demurrer was therefore entirely proper. There is no error.

Dupont, C. J. After a trial to a jury, the defendant was convicted of sexual assault in the first degree, a violation of General Statutes § 53a-70, and risk of injury to a minor, a violation of General Statutes § 53-21. On appeal, the defendant claims that the court erred: (1) in allowing the state to cross-examine the defendant about his failure subsequently to correct a false statement given by him to the police and to comment on that failure during the state's final argument; (2) in permitting the state to cross-examine defense witnesses about the defendant's general character traits; (3) in permitting a hospital emergency room physician to give an opinion that the victim did not consent to intercourse with the defendant; (4) in failing to disclose to the defendant the contents or substance of portions of the department of children and youth services (DCYS) file about the victim; (5) in allowing the state to argue in summation that the defendant should have called the victim's social worker as a witness; (6) in prohibiting the defendant from introducing testimony concerning the victim's prior sexual experiences; (7) in permitting the state to elicit, on redirect examination of the victim, portions of a statement which she gave to the police; and (8) in denying the defendant's request to charge on the issue of consent in connection with the court's charge on the crime of risk of injury to a minor. The jury reasonably could have found certain relevant facts based upon the evidence presented. The victim was fifteen years and nine months old on the date of the alleged assault and had been living with foster parents for seven months under DCYS supervision. She had an argument with her foster parents and left home accompanied by a girlfriend. Sometime later, after her friend had returned home, she spoke with the defendant, who had stopped his car at a stoplight. The defendant asked her if she needed a ride and she asked for a ride home. After entering the car, she became afraid of the defendant. He drove to a park where she exited from the car in order to get away from him. He then picked her up, carried her to a wooded area and pushed her down on the ground against a tree. He lifted her shirt, pulled down her shorts, tore off her underwear, and had forced sexual intercourse with her. The victim told the defendant her age prior to the intercourse. The defendant later struck her, urinated on her legs, and then left her. She crawled to a nearby brook where she washed her legs and put on her clothes. She walked to a nearby street and, subsequently, a couple stopped their car and picked her up. They testified that she was crying and hysterical. The victim later called a friend who picked her up and took her to his house, where she told his mother and sister what had happened. Thereafter, she was taken to a hospital where she was examined and treated. The defendant testified that, although he had sexual intercourse with the victim, it was consensual and followed some kissing in his parked car. He further testified that she told him she was almost seventeen years old, that he did not strike her or urinate on her, and that she became hysterical after the consensual intercourse. I The defendant claims that he was denied a fair trial, due process of law and the right to counsel, in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution because the court allowed the state to cross-examine him about his failure to contact the police after their interrogation of him had ceased in order to correct a statement he had given to the police and to comment about that failure during the state's final argument. The defendant character izes this issue as one involving post-arrest silence and the state characterizes it as one involving the permissible use of prior inconsistent statements to impeach credibility during cross-examination. After his arrest, the defendant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He then gave a written statement to the police which was admitted into evidence as an exhibit. On direct examination, he admitted that material portions of the statement were false, but that the falsities were induced by fear and were made prior to his consultation with a lawyer. On cross-examination, he was asked why he had not returned to the police station to correct the statement. The defendant's answer was "If I thought I could, I would have after I talked to my attorney." Defense counsel objected to the question but took no exception, and raised no constitutional claim as the basis for the objection. On redirect examination, the defendant testified that his attorney advised him "not to discuss anything with any police officer from that point on." During final argument, the prosecutor referred to this testimony and claimed that the defendant could and should have corrected his statement. The defendant claims that the issue is reviewable, even though not raised at trial, because it involves fundamental constitutional rights to remain silent, to due process, to the assistance of counsel and to a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree with the defendant because the record here supports his claim that a fundamental constitutional right of his is involved, the right to remain silent after Miranda warnings had been given. State v. Morrill, 197 Conn. 507, 535-37, 498 A.2d 76 (1985); State v. Pellegrino, 194 Conn. 279, 286-89, 480 A.2d 537 (1984). As far as this court is aware, the precise issue of this case has not been the subject of the holding of any other reported case, either federal or state. The issue is whether, after the warnings of Miranda are given and the defendant chooses to answer questions posed by the police, the defendant has an affirmative obligation when his interrogation has ceased, to return to the police to correct a false statement made during that interrogation about the facts or circumstances of the crime. We conclude that he does not, and that the state may not question him or comment about that failure. Our conclusion is based upon the subsidiary conclusion that a defendant has a constitutional right after he has been given Miranda warnings to abstain from further comment to governmental authorities when his physical custodial inquiry by them has ceased. It is as important, in this case, to delineate what the issue is not as it is to state what the issue is. We are not concerned with the state's right to impeach the credibility of the defendant on cross-examination by inquiring into the content of any statements voluntarily and knowingly made by him after he has received the warnings mandated by Miranda. Nor is this case related to those which have explored the parameters of a defendant's decision to remain selectively silent during his interrogation after Miranda warnings have been given. See State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985). In this case, the state did, and had a right to, cross-examine the defendant exhaustively as to all of his admittedly false statements relating to the crime with which he was charged made to the police after his Miranda warnings. There is no doubt that the use of a statement made after Miranda warnings have been given, relating to the facts of the crime with which the defendant is charged, may be used to impeach his credibility by illustrating inconsistencies between that statement and a different exculpatory statement given during his in-court testimony. State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984). A review of but a few cases is necessary to provide the decisional background sufficient for the decision in this case. The "use for impeachment purposes" of a defendant's silence, "at the time of arrest and after receiving Miranda warnings," violates "the Due Process Clause of the Fourteenth Amendment." (Footnote omitted.) Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). It should be noted that Doyle, its predecessor, United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), and Miranda itself all discuss the right of a defendant to remain silent at the time of the arrest and the failure of the defendant to speak about facts relating to the case at that time. See Miranda v. Arizona, supra, 474; see also Doyle v. Ohio, supra, 616; United States v. Hale, supra. These cases concern in-custody interrogation and their focus is on the period immediately following the defendant's receipt of Miranda warnings. When the defendant chooses to make no statement at all after being given his Miranda warnings, his silence cannot be commented upon during his trial, nor may that silence be used to impeach an explanation subsequently offered by him during his trial. The rationale for this proposition, as stated in Doyle, is that such silence is "insolubly ambiguous" and the use of such silence would penalize the defendant for relying upon the governmental assurances contained in Miranda warnings. If, however, a defendant, after receiving Miranda warnings, opts to waive his right to remain silent, and gives the police a statement, that statement may be used to impeach the credibility of the defendant when he testifies at trial to a different exculpatory version. Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222, reh. denied, 448 U.S. 912, 101 S. Ct. 27, 65 L. Ed. 2d 1173 (1980). It is constitutionally permissible under Anderson to delve into a defendant's prior inconsistent statement and to inquire about the reasons for the inconsistency. Id., 408. The Anderson court is referring to those statements made during custodial interrogation since it speaks of the failure to tell "arresting officers." The principles of Doyle do not apply to a "formalistic silence," a silence which is a silence by omission of facts. Id., 409. Thus, it was proper in this case for the state to question the defendant about his "formalistic silence," that custodial silence which omitted his claim made at trial that he had consensual intercourse with the victim. The principles of Doyle are not applicable to anything the defendant told the police about the facts of the crime and the state could properly question the defendant and comment about them. Connecticut cases which have discussed "post-arrest silence" refer to "silenfce] in the face of police interrogation," silence at "the time of arrest," or "custodial silence"; State v. Zeko, 177 Conn. 545, 551, 556, 418 A.2d 917 (1979); or concern facts indicating that the statement was made during physical custodial interrogation. State v. Talton, supra; State v. Reid, supra. Thus, a waiver of the right to "post-arrest silence" relates to statements made by a defendant about the crime in response to governmental inquiry. Without such inquiry, we conclude that the defendant cannot waive his right to silence, after he has been given Miranda warnings. A defendant may reassert his right to remain silent at any time, and if he ceases to answer questions, or to come forward with additional or correcting information after questions are no longer being asked of him, there is a reasonable possibility that he is relying upon that right. See note, "Protecting Doyle rights after Anderson v. Charles: The Problem of Partial Silence," 69 Va. L. Rev. 155, 166 (1983). Miranda warnings and the "Advisement of Rights" form signed by the defendant in this case both state that if the defendant answers any questions, he has the right to stop answering them at any time. Both advise that anything the defendant says can and will be used against him in court. The logical corollary of the latter statement is that when he says nothing at all and he is no longer in the physical custody of the government, the lack of a statement cannot be used against him. See id., 169. The reason for the defendant's failure to correct his statement after he was no longer being questioned by the police is unknown because it is impossible to know whether that subsequent silence arose because he relied on his Miranda rights, because he was guilty, because he was a liar, or because he was instructed by his lawyer not to speak to the police. The facts here make the defendant's silence, after his interrogation had ceased, as "insolubly ambiguous" as the silence described in Doyle. In addition, questions at trial regarding this silence did not relate to the inconsistent versions of the substantive facts of the crime, but, rather to the act of the defendant in not returning to the police to correct the substantive facts he had previously given. Two recent Connecticut cases support our conclusion. In State v. Morrill, supra, the defendant told the police that he was holding back information concerning a murder in order to make a "deal" with the state, and refused to answer questions specifically implicating him in the crime. The court held that the circumstances of the questioning did not naturally call for a reply from him, and his reason to fail to answer the questions was ambiguous since he may have failed to answer because he was guilty or because he did not want to speak until his "deal" was made. Id., 538. The testimony relating to this failure was an impermissible comment upon his right to remain silent. In the present case, since the defendant was not in custody, there were no circumstances which would naturally call for a reply, and his right to remain silent during that period is inviolate, even though a statement was previously made to the police when he was in custody. Post-Miranda constitutional silence does not exist in a vacuum. It attaches or relates to governmental questions. Without the questions, there need be no answers. The case of State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), provides convincing dicta in support of our disagreement with the trial court. In that case, no prior statement by the defendant was given to the police during custody and the record was silent as to whether Miranda warnings were given. During his trial testimony, the defendant, in answer to a question about whether he had gone to the police to tell them that he wasn't involved in the crime, answered that he had not " 'until I turned myself in . . . .' " Id., 532. This answer implies that he told the police then the same story which he told at trial. If that were true, the earlier story and the trial testimony would have been compatible and Doyle would not apply, even if Miranda warnings had been given. Id. The Leecan court went on to discuss, as further dicta, whether the state could, within the confines of Doyle and after Miranda warnings had been given, question the defendant to determine if his in-court testimony was the first time he had done anything "to clear this case up" and if he had ever done anything up to the day of his testimony to do the same. The court concluded that such questions about his "post-arrest" silence would have been error under those circumstances. The court, therefore, sub silentio, makes a comment about the constitutional silence of Miranda and Doyle, by recognizing two different time periods to which the right of silence might attach. One is the period during which a defendant is being interrogated and the other is the period when interrogation has ceased but the trial has not yet begun. In the latter period of silence, the Leecan court recognized that the prohibitions oí Doyle against the use of such silence against the defendant apply. Questioning the defendant about his failure to correct his original false statement, in combination with the state's comments about that failure, suggested to the jury that his silence during his freedom from cus todial interrogation could be interpreted as implying guilt or as a comment on his federal fifth amendment right to remain silent. It was impermissible for the reasons previously stated. The next question on appeal is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible questioning and impermissible comment. See State v. Morrill, supra, 539. Under certain circumstances, the state's use of a defendant's post-arrest silence does not constitute reversible error. In limited instances, " '[w]hen there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.' Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); Leake v. Cox, 432 F.2d 982, 984 (4th Cir. 1970). The rule has similarly been applied where a prosecutor does not focus upon or highlight the defendant's silence in his cross-examination and closing remarks and where the prosecutor's comments do not strike at the 'jugular' of the defendant's story. United States v. Davis, [546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977)]; see United States v. Harp, 536 F.2d 601, 603 (5th Cir. 1976)." State v. Zeko, supra, 555; see State v. Pellegrino, supra, 291-92. Thus, a finding of harmless error in such circumstances is the exception to the rule, occurring in only a few instances. See State v. Morrill, supra, 539; State v. Pellegrino, supra, 293; State v. Zeko, supra, 558. In this case, the prosecutor's questions highlighted the defendant's failure to correct his false statement prior to trial and the prosecutor made several refer enees to that failure in his closing argument to the jury. The questioning and the comments allowed the jury to draw an unfavorable inference from the defendant's silence. The exculpatory testimony, that the sexual intercourse was consensual, was not transparently frivolous, and the prosecutor's references to the failure to correct the statement were linked to the exculpatory testimony. The prosecutor told the jury, in essence, that the defendant did not have a right to remain silent after his original statement, but had an obligation to tell the police prior to trial that the original statement was false. These comments were not related to the credibility of the defendant. The evidence of guilt was not so otherwise overwhelming that the reference to the defendant's silence constituted harmless error. We conclude that such references by the prosecutor sufficiently highlighted the defendant's right to silence; see State v. Pellegrino, supra, 292; so that their admission constituted reversible error. State v. Morrill, supra, 539. The defendant's conviction must, therefore, be set aside, and a new trial ordered. Although a new trial must be ordered, the remaining claims of error are considered since they are likely to recur on retrial. II The defendant's second claim of error is that the trial court erred in permitting the prosecutor to cross-examine witnesses about his character traits other than nonviolence when they had testified on direct examination solely to the defendant's character trait of nonviolence. The defendant produced several character witnesses, including some relatives and two long-time family friends, to testify to his nonviolent character. The direct testimony of these witnesses was limited to the specific trait of nonviolence. On cross-examination of the two family friends, the prosecutor asked each of them at least three times whether they were present to testify to the defendant's general good character and his reputation as a law abiding citizen in the community or whether they were called by the defendant to testify only as to his character trait of nonviolence. Counsel for the defendant objected to these questions. The state claimed that the questions were asked merely to clarify the limits of the testimony of the witnesses and that the questions were not about character traits other than the trait of nonviolence. The trial court overruled the objections and allowed the questions. The witnesses responded that they were not present to testify to the defendant's general good character or his reputation as a law abiding citizen. The issue to be decided is whether the questions, although asked under the guise of determining the parameters of the direct testimony, were actually questions about the defendant's good character, and, therefore, beyond the scope of direct examination which was limited to the character trait of nonviolence. The defendant had the right to offer evidence about his character traits which were relevant to the crime with which he was charged. State v. Turcio, 178 Conn. 116, 127, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); McCormick, Evidence (2d Ed. 1972) § 191, p. 454. "If the accused offers evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged, then the prosecution may offer evidence to disprove the existence of the trait." State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). The plain meaning of this rule is that questions on cross-examination must be limited to the specific character trait or traits placed in evidence by the defendant, since it is those traits which the prosecu tion may disprove. See also United States v. Curtis, 644 F.2d 263, 268 (3d Cir. 1981), cert. denied, 459 U.S. 1018, 103 S. Ct. 379, 74 L. Ed. 2d 512 (1982); United States v. Lewis, 482 F.2d 632, 639 (D.C. Cir. 1973); 1A Wigmore, Evidence (Tillers Rev.) § 59, p. 1249 n.4. The questions here were of the genre of "when did you stop beating your wife." They inquired about a negative in order to imply a positive and, when coupled with the prosecution's references to them in closing argument, allowed the jury to consider character traits not introduced into evidence by the defendant. " 'This method of inquiry or cross-examination is frequently resorted to by counsel for the very purpose of injuring by indirection a character which they are forbidden directly to attack in that way; they rely upon the mere putting of the question (not caring that it is answered negatively) to convey their covert insinuation. The value of the inquiry for testing purposes is often so small and the opportunities of its abuse by underhand ways are so great that the practice may amount to little more than a mere subterfuge . . . ." Michelson v. United States, 335 U.S. 469, 473-74 n.4, 69 S. Ct. 213, 93 L. Ed. 168 (1948), quoting 3 Wigmore, Evidence (3d Ed. 1940) § 988. Although the extent of cross-examination is within the discretion of the trial court and every reasonable presumption should be made in favor of the correctness of the court's ruling; State v. McCarthy, 197 Conn. 247, 261, 496 A.2d 513 (1985); the trial court in this case abused its discretion. See State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977); State v. Martin, supra, 167. Since there is to be a retrial of this case, it is not necessary to consider whether the ruling here involved was harmful. See State v. Cohane, 193 Conn. 474, 480, 479 A.2d 763, cert. denied, 469 U. S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); Mack v. Perzanowski, 172 Conn. 310, 315, 374 A.2d 236 (1977). III The defendant's third claim of error is that the trial court erred in allowing the emergency room physician, who examined the victim shortly after the incident, to testify on redirect examination that, in his opinion, the intercourse between the defendant and the victim was nonconsensual. On cross-examination, defense counsel asked the witness if his examination of only the vaginal area of the victim would have indicated whether the intercourse was consensual or nonconsensual. The doctor responded that he could only state that the intercourse was traumatic. On redirect examination, the doctor was asked whether, in his opinion, taking into consideration his physical examination of the victim, her mental state at the time of the examination and the history of the incident which she gave to him, the intercourse was consensual or nonconsensual. After objection and exception by defense counsel, the doctor testified that, in his opinion, the intercourse was non-consensual. This testimony was subsequently emphasized by the state during its closing argument to the jury. The defendant objects to the trial court's ruling on the ground that the issue of whether the intercourse between the victim and the defendant was consensual was the ultimate issue in the case, which was for the jury to decide, and was not an appropriate subject for expert testimony. As a general rule, the test for the admissibility of expert testimony is whether the witness offered as an expert has any peculiar knowledge or experience which renders the opinion founded on such knowledge or experience an aid to the court or the jury in determining the question in issue. See State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975). It is well recognized, however, that testimony on matters which are not beyond the ken of the average juror does not qualify as admissible expert testimony. State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). When inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences are inadmissible. Id. The testimony of the doctor regarding whether the intercourse was consensual went beyond the scope of permissible expert testimony because it involved an opinion based upon factors outside the realm of his professional expertise. The doctor's opinion that the intercourse was nonconsensual was based in part upon the victim's emotional state as well as the victim's own representations given to him regarding the history of the incident. The doctor, therefore, reached a conclusion on the ultimate issue by drawing on factors already made known to the jury, and which went beyond his physical examination of the victim. Because such factors were previously presented before the jury, the jury was equally capable of reaching the conclusion sought from the doctor. Determination of this issue requires no special knowledge or experience. The doctor's conclusion, therefore, was inadmissible. A review of the decisions of other jurisdictions which have considered this issue supports our conclusion. The general rule of law in such cases is that when a physician bases a conclusion in part upon statements made to him by the victim, he is in fact making a determination about the credibility of the witness. See, e.g., State v. Castore, 435 A.2d 321, 325-26 (R.I. 1981). Such credibility determinations are within the sole province of the jury. See also Farley v. State, 324 So. 2d 662, 663-64 (Fla. App. 1975); State v. Bressman, 236 Kan. 296, 303, 689 P.2d 901 (1984); People v. McGillen, 392 Mich. 278, 288, 220 N.W.2d 689 (1974); People v. Byrd, 133 Mich. App. 767, 779-80, 350 N.W.2d 802 (1984). In Commonwealth v. Gardner, 350 Mass. 664, 216 N.E.2d 558 (1966), a physician, who had examined the victim after the alleged rape had occurred, was similarly asked at trial whether in his opinion, based upon his knowledge of the victim's emotional state and the history of the incident given to him by the victim, there was forcible entry. The doctor testified that in his opinion there had been forcible entry. The court held such testimony to be inadmissible, and stated that it was "not persuaded that a gynecologist, or other expert, possesses skills or special experience which might enable him to determine, from factors such as these, that acts of intercourse amounted to rape." Id., 667. The trial court's ruling, when combined with the state's use of the doctor's testimony in its closing argument to the jury, sufficiently prejudiced the defendant so as to constitute an abuse of discretion by the trial court. Such abuse of discretion constitutes reversible error. Commonwealth v. Gardner, supra. IV The defendant's fourth claim of error is that the trial court erred by failing to disclose to the defendant the contents or substance of the victim's DCYS file. The defendant claims that denial of access to these records violated his sixth amendment right of confrontation. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). He argues that because much of the state's case rested on the testimony of the victim and because his defense involved a challenge to the credibility of that witness, he is entitled to access to the information contained in the victim's records for possible use in cross-examination. The defendant also claims that the trial court's failure to disclose portions of the DCYS file denied him his right to a fair trial and his due process rights to exculpatory material; see United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and to acquire and present evidence critical to his defense. See Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). In this case, the victim was living with foster parents, under DCYS supervision, at the time of the inci dent. After defense counsel subpoenaed the DCYS file, the trial court conducted an in camera inspection of the file to determine whether it contained exculpatory material and whether its contents should be disclosed to the defendant. The trial court informed defense counsel that in addition to the placement history of the victim, the file contained opinions, offered by nonprofessionals, that the victim exhibited a pattern of untruthful behavior in the past. When defense counsel asked that these portions of the file be turned over to him, the trial court denied his request. On appeal, the defendant argues that those portions of the file relating to the issue of the victim's untruthfulness, including the names and addresses of those lay persons who offered the opinions, should be disclosed to the defendant. The defendant claims that such evidence would have supported his claims that his intercourse with her was consensual, and that only after the intercourse did the victim become hysterical. The issue of whether a trial court or a criminal defendant should be permitted to inspect confidential records of a state's witness to discover whether the records contain relevant impeaching evidence has recently received much scrutiny in our courts. See, e.g., In re Robert H., 199 Conn. 693, 509 A.2d 475 (1986); State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), aff'g 1 Conn. App. 384, 473 A.2d 311 (1984); State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984); State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983). All of those cases involved a statutory prohibition against revelation of the contents of files maintined by certain agencies. In re Robert H., supra, involved the records of a rape crisis center, the confidentiality of which are protected by General Statutes § 52-146k, and the other cases concerned psychiatric records of a patient-witness which may not be disclosed pursuant to General Statutes § 52-146e. Storlazzi also involved records of DCYS relating to psychiatric and psychological evaluation and treatment. This case concerns the statutory confidentiality provided by General Statutes § 17-47a for records or information received by DCYS. The rule to be followed in cases involving General Statutes § 52-146k and 52-146e is clear. "First, the defendant is required to make 'a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant's right of confrontation such that the witness' direct testimony should be stricken. Upon such a showing, the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for inspection on appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal.' " State v. Bruno, supra, 329-30, quoting State v. Esposito, supra, 179-80. The rule to be followed in cases involving General Statutes § 17-47a is less clear. The Connecticut Supreme Court has not yet had occasion to determine the question. General Statutes § 52-146k and 52-146e provide that no disclosure of confidential communications made by a victim or a patient may be obtained without a waiver by the communicator. General Statutes § 17-47a, however, states that the records or information received by DCYS shall not be disclosed except in certain instances, including "upon order of a court." The decision to breach the confidentiality of the records, therefore, under the latter statute, does not lie solely with the child in the care or custody of DCYS, the child's guardian, or DCYS. Under certain circumstances, that decision may lie with a court, without the need to follow the Esposito rule. Information given by a psychiatric patient or a victim of a sexual assault is generally given in the belief that both may "obtain care [or counseling] without fear of unwarranted embarrassment, and without apprehension of a future detrimental disclosure in court, either of which might deter the patient [or victim] from revealing his true symptoms." State v. Bruno, 1 Conn. App. 384, 393, 473 A.2d 311 (1984), aff'd, 197 Conn. 326, 497 A.2d 758 (1985). Records kept by DCYS are instead used to evaluate the best interests of the children in the care and custody of it. Such files often contain sensitive and private information about children and their parents, unrelated to the ability of a particular child to recall and relate the truth. We conclude that the principle of State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), deemed to be inapposite to the circumstances of State v. Esposito, supra, applies here. The statute involved in the Januszewski case, General Statutes § 1-19, does not preclude the disclosure of information contained in a personnel file for use in a criminal judicial proceeding if the court, after an in camera inspection, determines that a legitimate and demonstrated need for it is apparent. See State v. Esposito, supra, 178. The defendant in Januszewski, as in this case, claimed that the material was needed for impeachment purposes and involved his constitutional right to cross-examine the state's chief witness. General Statutes § 17-47a does not bar, without exception, the release of the records and information garnered by DCYS unless the child, the child's guardian or DCYS allow that release, but leaves the question of disclosure, in cases such as this, to the discretion of the court. That discretion cannot be exercised unless the court examines the file to determine whether the defendant's need to obtain confidential matter in order to discover impeaching material necessary to exercise his right of confrontation outweighs the public policy of confidentiality expressed in the statute. Additional factors include the nature of the confrontation which is allegedly affected; see State v. Cosby, 6 Conn. App. 164, 167-72, 504 A.2d 1071 (1986) (cross-examination for bias, interest or motive distinguished from cross-examination as to general credibility); the nature of the material examined, the remoteness of that material, and the availability of other means of testing the victim's reliability. In this case, the court examined the file and found lay opinions that the victim had been untruthful in the past. Our examination of the file shows no more. The file does not contain any statements relevant to the alleged crime provided by the victim but statements made by others as to her veracity. The untruthfulness of the victim was underlined by the testimony of other witnesses. The opinion of lay persons contained in her DCYS file that she was not always truthful was simply cumulative of the testimony at trial and would have added nothing of significance to the defendant's case. The trial court did not err in concluding that nondisclosure of the DCYS file did not impair the defendant's constitutional right of confrontation. V The defendant's fifth claim of error is that he was denied a fair trial, due process of law and the right of confrontation under the federal and state constitutions by the state's allegedly improper rebuttal argument to the jury that the defendant should have called the victim's social worker as a witness. During her cross-examination, the victim was asked by defense counsel whether she had told anyone else about those details concerning the incident which she had failed to include in her police statement. She responded that she had told her social worker, who was counseling her as part of her DCYS treatment, about everything which she had testified to in court. During rebuttal argument, the state argued that the defendant would have called the victim's social worker if the version of the events given by the victim to her social worker differed from her direct testimony. The defendant claims that this was an improper argument because the state knew that any communication between the victim and her social worker was privileged under General Statutes § 17-431 (b). Defense counsel did not object to the state's argument at trial. The defendant claims, however, that because the comments made by the prosecutor implicated his fundamental constitutional rights to due process and confrontation, this court should review his claims under State v. Evans, supra. Our Supreme Court has held on several occasions 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. TylerBarcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985). Furthermore, where defense counsel does not ask the trial court for a curative charge or move for a mistrial, our Supreme Court has ruled that defense counsel did not view the comments by the prosecutor as so prejudicial as to warrant a determination that the defendant's right to a fair trial was seriously impaired. State v. Tyler-Barcomb, supra; State v. Lubesky, supra, 483-84; State v. Falcone, 191 Conn. 12, 22-23, 463 A.2d 558 (1983). In this case, the defendant fails to mention in his claim that it was defense counsel who first raised the issue of the social worker's failure to testify in his closing argument to the jury. The comments by the state were made in response to defense counsel's own attempt to use the social worker's failure to testify to the defendant's advantage. Under these circumstances, the defendant cannot be allowed to complain about this issue on appeal. Nor was the issue of the existence of the statutory privilege, and whether it would be asserted or waived, ever raised at trial. The defendant has not shown that he was deprived of a fundamental constitutional right and a fair trial under State v. Evans, supra. See State v. Tyler-Barcomb, supra, 673-74. VI The defendant's sixth claim of error is that the trial court erred in prohibiting the defendant from introduc ing testimony regarding the victim's prior sexual experiences. At trial, the defendant called as a witness the girlfriend of the victim, who had accompanied her when she left her home on the night of the incident, and had known the victim for two to three years. The witness was asked if the victim had ever discussed her prior sexual experiences. The trial court sustained the state's objection to the question on the ground that the testimony was irrelevant and immaterial to the charge of risk of injury to a child under General Statutes § 53-21. The defendant argues that a victim's prior sexual experiences are relevant to a risk of injury charge. General Statutes § 53-21 proscribes "two general types of behavior likely to injure physically or impair the morals of a minor under sixteen years of age: '(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare' and '(2) acts directly perpetrated on the person of the minor and injurious to [her] moral or physical well-being.' " State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), quoting State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). In both instances, the focus of the statute is on the behavior of the defendant, not on the character, history or experience of the victim. See State v. Pickering, 180 Conn. 54, 63-65, 428 A.2d 322 (1980). The relevant inquiry was whether the defendant did any act or created a situation which was likely to impair the health or morals of the victim. The defend ant attempted to introduce evidence regarding the prior sexual experiences of the victim in order to demonstrate that her morals were not impaired by the defendant's conduct and, thus, that there was no injury to the victim in this case. Under the statute, however, injury is not an element of the offense. See State v. Perruccio, supra, 159-60; State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982); State v. Dennis, supra, 250. To allow the introduction of evidence regarding the victim's prior sexual experiences would divert the attention of the jury from the conduct of the defendant to the history of the minor. The effect of allowing such evidence would be to afford a lesser degree of protection to some minors than others, a result which is nowhere supported by either the language or the history of the statute or by the cases decided under it. The prior sexual experiences of the victim, therefore, were not relevant to the charge of risk of injury to a minor. See State v. Franko, 199 Conn. 481, 484-86, 508 A.2d 22 (1986) (trial court did not err in prohibiting the defendant from asking the victim on cross-examination whether she had been a virgin prior to the alleged sexual assault, the defendant having failed to establish that the testimony was relevant to a material issue in the case). The trial court in this case properly excluded the testimony. VII The defendant's next claim of error is that the trial court erred by permitting the state on redirect exami nation to elicit testimony from the victim regarding portions of her statement to the police. On cross-examination, defense counsel examined the witness with regard to certain details of her direct testimony which were not included in her prior statement in an attempt to illustrate the inconsistencies between the witness' statement and her direct testimony. On redirect examination, the state, after the defendant's objection was overruled and exception made by defense counsel, brought out those items in the victim's statement which were consistent with her direct testimony. On appeal, the defendant argues that the trial court erred by allowing the state to examine the victim on those portions of her statement which were consistent with her direct testimony, instead of limiting the scope of the redirect testimony to the inconsistencies brought out on cross-examination. The defendant claims that any attempts to rehabilitate the witness' testimony should have been limited to the subject matter of the prior inconsistent statements developed on cross-examination. The general rule is that a witness' prior consistent statements are inadmissible at trial. State v. Brown, 187 Conn. 602, 607, 447 A.2d 734 (1982); State v. Dolphin, 178 Conn. 564, 568, 424 A.2d 266 (1979). "Nonetheless, the above rule is not absolute. Connecticut, as many other jurisdictions, long has recognized that where there is testimony showing an inconsistent statement by a witness it is within the discretion of the trial court to permit the introduction of prior consistent statements of that witness, not as proof of the matters asserted therein, but for the limited purpose of rehabilitating the witness." State v. Dolphin, supra, 569; see also State v. Brown, supra, 608; State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979). The defendant, after selecting those portions of the witness' statement which he wished to emphasize on cross-examination, would now, in effect, have this court allow the alleged inconsistencies to be isolated and taken out of context. See State v. Cardona, 6 Conn. App. 124, 130, 504 A.2d 1061 (1986). The trial court's ruling properly allowed the state to ask the victim certain questions, all of which pertained to the same prior statement of the witness. We conclude that the trial court did not abuse its discretion in permitting the state to examine the victim on redirect regarding her prior statement for the limited purpose of rehabilitating her after she had been impeached by defense counsel. VIII The defendant's final claim of error is that the trial court erred in denying his request to charge the jury on the issue of consent in connection with its charge concerning risk of injury to a minor. Since the trial of this case, it has been held to be error for a trial court to deny a defendant's request for a jury instruction on the issue of consent in a risk of injury case involving a fifteen year old girl. State v. Perruccio, supra, 165-66. At the time Perrueeio was announced, the defendant had not yet been convicted. Since judgment had not yet been rendered, there was no final judgment at the time State v. Perruccio was decided. We, therefore, conclude that the holding in that case is applicable here. See State v. Cohane, supra, 483-84; State v. Dudla, 190 Conn. 1, 5, 458 A.2d 682 (1983). The state claims that the trial court's failure to give the requested instruction, if deemed to be error at all, was harmless error under the circumstances in this case. The state's position is that the jury's finding of nonconsent on the part of the victim to the sexual intercourse alleged in the sexual assault charge automatically establishes a finding of nonconsent to acts within the risk of injury charge. In order to convict under the risk of injury statute, the state must prove that the defendant either placed the victim in a situation or committed an act likely to impair the morals or health of a child under the age of sixteen. See State v. McCall, supra. The defendant was not charged with a violation of the risk of injury statute for any specific act. Contrary to the state's argument, risk of injury and sexual assault "do not stand in the relation of greater to lesser included offenses. Each requires proof of an element not required by the other." Id., 91. For this reason, our Supreme Court has recognized that the element of likelihood of impairment of the morals or health of a child necessary in a risk of injury charge is not a necessary corollary of sexual intercourse. Id., 91-92. Thus, merely because the jury found that the victim did not consent to the sexual intercourse alleged in the sexual assault charge does not necessarily mean that it would have similarly found that the victim did not consent to any of the actions that could have been found to be within the risk of injury statute. It has been recognized that a charge of risk of injury can include a host of possibilities and a multitude of acts. See State v. Eason, 192 Conn. 37, 470 A.2d 688 (1984). Thus, several acts of the defendant could have been found by the jury to be within the realm of the broad risk of injury statute. These include, but are not limited to, the act of the defendant in taking the victim away in his car, the kissing of the victim, or the touching of the victim. Moreover, the jury could have found that the victim had consented to any or all of these acts, although she did not consent to sexual intercourse. The jury was prevented from doing so, however, because of the trial court's instruction pursuant to which they were bound to find the defendant guilty of risk of injury whether or not they believed his version of these facts, and whether or not they found that the victim had consented to any of these acts, once they concluded that the victim had not consented to sexual intercourse. Such an error may be considered harmless only if the evidence against the defendant is so overwhelming that this court may conclude that the jury's verdict was not influenced by the absence of a proper instruction on the issue of consent. See State v. Cohane, supra, 485. The record in the present case does not indicate that the evidence against the defendant on the issue of consent met this requirement. Whether the defendant committed and whether the victim consented to the requisite acts of a risk of injury violation were questions of fact for the jury. State v. Perruccio, supra, 165. Likewise, whether any action of the defendant fell within the proscription of the risk of injury statute was also a question for the jury to decide. We cannot assume on appellate review that the jury would consider the sexual intercourse to be the activity falling under the risk of injury charge. Such an assumption would be a usurpation of a function within the exclusive province of the jury. See State v. Silver, 139 Conn. 234, 246, 93 A.2d 154 (1952). We note that, on the basis of the same set of facts and with proper jury instructions, the jury found this defendant not guilty of the charge of kidnapping. It is therefore possible that the jury might have found the defendant not guilty of the risk of injury charge as well. In order to have done so, however, the jury would have to have been properly and completely instructed on the law to be applied in resolving such questions. Under these circumstances, we cannot conclude that the state has demonstrated beyond a reasonable doubt that the jury was not influenced by the improper instruction. Thus, the trial court's failure to give the requested instruction on consent constitutes reversible error. There is error, the judgment is set aside and the case is remanded for a new trial. In this opinion the other judges concurred. The defendant was found not guilty of kidnapping in the first degree. The defendant relies on the United States constitution and the Connecticut constitution but does not analyze them separately, stating only that article first, § 8, of the Connecticut constitution gives the defendant greater rights than the federal constitution. Without that analysis, there is no basis for us to discuss the Connecticut constitution. See State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986). The defendant, in his written statement to the police, said that the victim was hitchhiking, he gave her a ride, then left her in the center of town, and that no sexual intercourse had occurred. The prosecutor's questioned remarks during final argument to the jury are as follows: "The false statement. A person who gave a statement under oath when he didn't have to, you'll see in the Exhibits he was advised he could remain silent. He didn't have to say anything, if anything he did say, if he did say anything, it would be used against him. He could have kept silent. He could have said nothing, but he didn't. He lied as he testified. He gave a false statement under oath, and we went through the statement. There are at least five or six different total falses in there. Why did he give the false statement? He says because he thought the law was such and such. So what did he do? Lied to get around that law, lied to escape the consequences of his behavior. Now that he's out and finds out from his lawyer that the law is otherwise, he comes in and gives another story. Can you believe it? Can you believe the sworn testimony up here of a person who gave a sworn written statement which it later turned out to be false? . . . He never corrected the false statement. He claims now that his lawyer told him not to. Well, it may be; but he gave a false statement to the police. He could have come wp and said I was nervous, here's what really happened. We had intercourse. She consented to it. Here, put this in your record. So when I testify I can testify that I corrected that statement and the real reason I did it was because I was nervous at the time. But now that I'm out of custody I've talked to my lawyer, I want to tell the truth. Did he say that ? No, not once. " (Emphasis added.) The defendant did not object to the argument, did not request a curative or cautionary instruction, and did not except to the court's charge which contained no such instruction. It is now clear that the principles of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), do not apply unless Miranda warnings have been given. See Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982). The fact that the defendant has or has not been arrested at the time of a statement given after Miranda warnings is, therefore, irrelevant. The relevant portion of the state's argument is as follows: "What does the doctor testify? He examined her and found evidence of trauma, and he was asked by Attorney Slitt couldn't this have been just a difficult but voluntary consensual intercourse. He said no. Based on the undisputed medical findings, based on his examination, it was his opinion and his conclusion that it was forceable rape, not consensual whatsoever. . . . We have here the results of the examination of the genital-urinary. You can read that. Doctor testified — he was asked to testify . . . whether it was consensual and in his opinion based on the facts that he saw, the history that he saw, the state of the girl's mind at the time, it was forceable, not consensual." The state's argument that the defendant opened the door on cross-examination to the doctor's testimony is unpersuasive. On cross-examination, defense counsel limited his inquiry to whether, solely on the basis of his examination of the victim's vaginal area, the doctor could determine whether the intercourse was consensual or nonconsensual. On redirect examination, the state exceeded the scope of the cross-examination by asking the witness for an opinion on the issue of consent based upon his physical examination and his evaluation of the victim's mental state and the history of the incident as relayed by her to him. The defendant also claims, citing Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), and Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), that lack of access to these records denied him his due process right to acquire and present evidence critical to his defense. The defendant fails to elaborate on this claim in his brief. We decline to review this claim because " [assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court." Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982); see also State v. Frazier, 7 Conn. App. 27, 40, 507 A.2d 509 (1986). Three of these cases were decided after the trial in this case, and the fourth, State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983), had just been published. A trial court is expected to take cognizance of published decisions but is not expected to be prescient. The court here followed State v. Storlazzi, supra, which was not cited in the succeeding three cases. The Storlazzi holding has been seriously undermined by the trilogy of cases decided after it. General Statutes § 17-47a provides: "Records kept or information received by the department of children and youth services and licensed childcare facilities and child-placing agencies regarding individuals in their care or custody shall not be open to inspection or their contents disclosed except for purposes directly connected with the provision of human resources or upon order of a court or under the provisions of part II of chapter 778. This section shall not affect the confidential exchange of information between social welfare, educational or law enforcement agencies regarding individuals in the care or custody of one of these agencies." (Emphasis added.) Part II of chapter 778 relates to the availability and confidentiality of records in adoption matters. The relevant remarks by the prosecutor during summation to the jury are as follows: "And I recall very vividly that the girl was asked if she told anybody else about the urine and she did. She gave a name. Do you remember she said she didn't want to give her the name of her therapist? Asked the Judge if she had to? And she said yes, it was [her social worker] she told. Do you remember that? Did he subpoena [her social worker] in? No, of course not. Be very easily disproved if he did put [her social worker] on the stand and ask her if she ever told her the Defendant urinated. Didn't happen, did it?" General Statutes § 17-431 (b) states in pertinent part: "Neither the commissioner of children and youth services nor any of his employees shall disclose or transmit, in whole or in part, the nature or content of any communications or records of any person to any other individual, corporation or municipal, state or federal agency, without the consent of the person, his attorney or his authorized representative . . . ." The statutory privilege of General Statutes § 17-431 (b) rests with the person committed to DCYS. It is unnecessary for the purposes of this opinion to determine whether that statute and General Statutes § 17-47a are facially inconsistent. The relevant remarks by defense counsel during closing argument to the jury are as follows: "If she had told her social worker this had happened, her social worker would have testified to that on the witness stand. The first time she ever mentioned that she was slapped was when she— and that this man urinated on her was when she got on the witness stand that day. I don't know if it is a fantasy she had or some other case she heard about or something somebody suggested to her; but it was certainly something that she — was not a consistent statement. Was certainly something she had never ever mentioned before. Why would she tell Mr. Malone if she was rather than Miss Graves, Officer Graves, which she had a continuing relationship with, who was — who she felt at ease with or her social worker or somebody of that nature. Why would she tell Mr. Malone a perfect stranger that this happened the first time if she just didn't invent it that particular time to make this case sting or to emphasize this." General Statutes § 53-21 provides: "Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both." We are not persuaded by the defendant's attempt to characterize the holdings in two Supreme Court cases; State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983), and State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982); as inconsistent. The defendant bases this argument on a comparison of the Supreme Court's quotation of the jury charge on risk of injury to a minor in Storlazzi with the court's comparison of the elements of risk of injury and sexual assault in the second degree in McCall. In neither case did the Supreme Court address the precise issue of whether evidence of the victim's prior sexual experiences should be allowed in a case of risk of injury to a minor. Unlike the defendant, we do not presume that the court's decisions are inconsistent, especially where the Supreme Court did not directly address the subject at issue in this case. In its charge to the jury on the issue of consent as it related to the risk of injury count, the trial court stated: "If you were to find the facts as the victim has stated them to be, that very well might constitute an act of risk of injury. If you were to find that even though she might have consented, it would still be unlawful to do this. So the victim cannot consent to a risk of injury situation. And if you find that by having vaginal intercourse with the Defendant, even if she acquiesced in it, she's legally incompetent to acquiesce. So, if you find that the Defendant caused the victim to have sexual relations with him, or if you find that he permitted her to have sexual relations with him, and you were to find that sexual relations were such that the victim's morals are likely to be impaired, or that this was an act, and you can do it in the alternative, it doesn't make any difference which way you do it, likely to impair the health or morals of the victim, then you would have to find that there was a risk of injury."

Bogdanski, J. This appeal stems from an action for an accounting to recover profits resulting from the sale of land originally purchased by the plaintiffs and the defendant for investment purposes. The matter was referred to a state referee, who, exercising the powers of the Superior Court, ordered judgment in the amount of $14,500 pursuant to the defendant's confession of judgment. The court also found that the plaintiffs failed to sustain their burden of proof with respect to their claim for an accounting of the profits. From that judgment, the plaintiffs appealed, assigning error in the court's finding, in the conclusions reached, and in the overruling of their claims of law. We address ourselves first to the error directed at the court's refusal to find facts claimed to be admitted or undisputed. A fact is not admitted or undisputed merely because it has not been contradicted. Walker v. Jankura, 162 Conn. 482, 484, 294 A.2d 536. Moreover, facts which are not material and could not affect the result cannot be added to the finding. Rushchak v. West Haven, 167 Conn. 564, 566, 356 A.2d 104. No additions can be made to the finding which would benefit the plaintiffs in presenting the questions of law which they wish to have reviewed by this court. With respect to the claim that facts were found without evidence, such a claim is tested by the evidence printed in the appendices to the briefs. Practice Book, 1963, § 628M; State v. Vars, 154 Conn. 255, 258, 224 A.2d 744. Our examination of the evidence printed in the appendix reveals that there is sufficient evidence to support the challenged facts. The finding reveals the following facts: In 1964, the plaintiffs and the defendant agreed to purchase 6.444 acres of land in Ridgefield for investment purposes. They also agreed to share equally in the cost of the property, the expenses of maintaining it, and the profits or losses upon its resale. The property was purchased in September, 1964, for $33,000, $8000 cash, and the balance by the assumption of an existing mortgage of $12,300 and a purchase-money mortgage of $12,700. Although title to the property was placed in the name of the defendant, he was unaware that the preexisting mortgage by its express terms could not be assumed. In May, 1965, an action to foreclose that mortgage was brought and it became necessary to refinance the property. The defendant was the only one of the parties able to get refinancing. Through his personal credit, the defendant secured a mortgage in the amount of $25,000, which was used to pay off both mortgages. The plaintiffs paid their shares of the expenses, for a short period of time in 1965, hut defaulted thereafter in their payments. In 1965, 1966 and 1969, because of their continued defaults, the defendant wrote the plaintiffs requesting their payments in the amounts then due. No payments were made. On October 1, 1969, the defendant notified the plaintiffs that the venture was terminated and offered to return their original investment if in the near future he sold the property at a profit. At the time the defendant was not aware of any prospective offers for the purchase of the property. The plain tiff Frank Incerto was in default in the amount of $2130.69. The named plaintiff, Edward Travis, was similarly in default, in the amount of $2903.69, and in the further amount of $2810.56 on the share allegedly assigned to him by one Ulysses Cerulli, another original investor. In December, 1969, the defendant succeeded in selling the property for $100,000. After the trial, the defendant filed a confession of judgment in the amount of $14,500 without costs. On this appeal, the plaintiffs raised the following claims: The court erred (1) in refusing to find that their relationship was governed by the Uniform Partnership Act, § 34-39-34-81 of the General Statutes; (2) in refusing to find that an accounting of profits was required; and (3) in concluding that the plaintiffs were limited to a recovery of $14,500. The plaintiffs first claim that their arrangement constituted a partnership subject to the provisions of the Uniform Partnership Act. The distinction between a partnership and a joint venture is often slight, the former commonly entered into to carry on a general business, while the latter is generally limited to a single transaction. Roberts v. Weiner, 137 Conn. 668, 671, 81 A.2d 115; Dolan v. Dolan, 107 Conn. 342, 349, 140 A. 745. Section 34-44 of the General Statutes defines partnership as an association of two or more persons to carry on a business for profit, and § 34-40 defines "business" to include every trade, occupation or profession. Section 34-45 (2) further provides that coownership of property does not of itself establish a partnership whether or not the coowners share profits from the property. To find a true partnership, a mutual agency relationship is essential. Dolan v. Dolan, supra; Lapenta v. Lettieri, 72 Conn. 377, 383, 44 A. 730; Mechem, Elements of Partnership (2d Ed.) § 244. Indeed, § 34-47 provides that to be a partnership within the statutes requires that every partner be an agent of the partnership for the purpose of its business. To determine the nature of an association the court looks to the intent of the parties. In the present ease, the association was established for the sole purpose of investing in a single parcel of real estate. The record does not indicate any intention by the parties to carry on a trade, occupation or business, or to create an agency relationship among themselves. The only indicium of a partnership in this case was the agreement to share profits or losses. We conclude that the agreement entered into by the parties did not constitute a partnership within the ambit of the Uniform Partnership Act. The plaintiffs further contend that the court erred in refusing to find that an accounting of the profits was required. The relations and obligations in a joint venture are generally governed by the principles of common-law partnership; Lesser v. Smith, 115 Conn. 86, 89, 160 A. 302; and an adventurer is accountable to his coadventurers under the same equitable principles as require an accounting between partners at common law. Weidlich v. Weidlich, 147 Conn. 160, 163, 157 A.2d 910; Roberts v. Weiner, 137 Conn. 668, 673, 81 A.2d 115. At common law, "a partner who has not fully and fairly performed the partnership agreement on his part has no standing in a court of equity to enforce any rights under the agreement. Marble Co. v. Ripley, 10 Wall. [77 U.S.] 339, 358." Karrick v. Hannaman, 168 U.S. 328, 335, 18 S. Ct. 135, 42 L. Ed. 484. It is undisputed that the agreement between the parties called for each member to contribute equally to the capital and the carrying charges of the property in question. The record reveals that the plaintiffs defaulted in two substantial respects. First, they did not contribute to the capital needed for the refinancing as the defendant, and he alone, refinanced the property. Second, prior to the termination of the association, the plaintiffs defaulted for a period of up to four years on their obligations despite the defendant's repeated requests for payment. In their briefs, the plaintiffs overlook the issue of default and point instead to the fact that they were partners in what ultimately turned out to be a good deal. The answer to that is that the plaintiffs cannot benefit because of their own substantial defaults. An action for an accounting calls for the application of equitable principles. The plaintiffs had the burden of showing that they were entitled to share in the profits. The court found that they failed in that burden. The confession of judgment was an offer by the defendant to compromise the controversy between the parties. The court adopted the amount offered as an equitable basis for the resolution of the dispute. Indeed, on the record before us, the defendant's confessed judgment constituted an amount well over the total contributions made by the plaintiffs. We conclude that the court did not err in finding that the plaintiffs failed to sustain their burden of proof as to an accounting for profits. We further conclude that the court did not err in determining that the amount in the confessed judgment satisfied the defendant's obligation to account to the plaintiffs for their original investment and payments in the undertaking. There is no error. In this opinion the other judges concurred.

Dupont, C. J. The plaintiffs brought an action against the defendants, claiming that the negligent operation of a motor vehicle driven by one of them had caused a rear end collision with the named plaintiff's automobile while it was stopped at an intersection. The trial court granted the plaintiffs' motion for summary judgment on liability, and the case was tried to a jury solely on the issue of damages. The jury awarded the plaintiff $583 in damages, although he claimed $2083 in medical expenses alone. The plaintiff also claimed damages for lost wages, future earning capacity, and pain and suffering. The plaintiff's motion to set aside the verdict was denied, and the plaintiff appeals from the judgment rendered on the jury's verdict. On review, our task is confined to determining whether the trial court abused its discretion in refusing to set aside the verdict. Our review involves an examination of the record in a light most favorable to sustaining the verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). The standard by which our examination is measured is " 'whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. ' " Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986), quoting Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924). " 'The trial court's refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.' Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because '[fjrom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.' Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972)." Zarrelli v. Barnum Festival Society, Inc., supra. The facts in this case relating to the damages suffered by the plaintiff were hotly disputed. His testimony, beginning with his description of the impact of the cars and continuing through his recitation of medical expenses and employment related damages, was contradicted by a coplaintiff, by records of medical expenses claimed in an unrelated incident, and by his employment records. The testimony of his medical experts was undermined at trial by the revelation that he had failed to tell them about related injuries. One injury was incurred two weeks prior to the alleged injury which is the subject of this appeal and another was incurred subsequently. That the jury chose to disbelieve the testimony of the plaintiff, and of his experts, as to his medical damages is not evidence of prejudice, partiality, mistake or corruption. The trial court did not abuse its discretion by denying the motion to set aside the verdict, as the evidence presented at trial reasonably supported the verdict. See Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 437, 513 A.2d 1235 (1986). "The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court." Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). There is no error. In this opinion the other judges concurred. The other plaintiffs, John Taddei, Jr., and Frances Taddei, have not appealed and the judgments for them, rendered on the jury's verdict, are not involved in this appeal. In this opinion, we will refer to John Taddei, Sr., as the plaintiff. The defendants' cross appeal, claiming error in the granting of summary judgment, was filed contingent upon a reversal of the judgment from which the plaintiff appeals, and therefore, need not be addressed, in view of this court's decision on. the appeal.

The plaintiffs' petition for certification for appeal from the judicial district of Fairfield at Bridgeport is granted by the court.

Grillo, J. This appeal from the judgment of the trial court granting a motion to quash a writ of habeas corpus raises the following issue: whether, in 1973, a writ of habeas corpus was an appropriate procedural vehicle to test the legality of a criminal contempt citation. The facts are not in dispute. On June 12, 1973, the plaintiff appeared without counsel before the New London Superior Court to be heard on a motion filed by him concerning the appeal of his previous criminal conviction. During the course of this hearing, the plaintiff and the court engaged in a colloquy which culminated in the court, Naruk, J., finding the plaintiff in contempt. Upon adjudging the plaintiff in contempt, the court imposed a sentence of thirty days, to be served consecutive to the prison term resulting from the plaintiff's prior criminal conviction. After an unsuccessful appeal to this court concerning the underlying criminal conviction, the plaintiff was incarcerated at the Connecticut Correctional Institution in Somers. On May 21, 1979, the plaintiff filed an amended petition for writ of habeas corpus, wherein he claimed, inter alia, that his conduct before Judge Naruk was not contemptuous and that therefore the finding of contempt and resulting sentence should be vacated. On May 23, 1979, the state moved to quash the petition on the ground that habeas corpus is not the proper proceeding in which to test the legality of a criminal contempt citation. After a hearing on the state's motion to quash, the trial court, B. O'Neill, J., granted the motion on October 29, 1979. Construing the law as it existed in 1973, a stipulation agreed upon by the parties, the court concluded that a writ of error is the sole method by which the plaintiff may contest a judgment of criminal contempt committed in the presence of the court. Accordingly, the court ruled that habeas corpus is unavailable to the plaintiff as a vehicle to contest a summary criminal contempt citation. Prom this judgment, the plaintiff appeals. We find no error. Clear authority to the contrary notwithstanding; Moore v. State, 186 Conn. 256, 257, 440 A.2d 969 (1982); Whiteside v. State, 148 Conn. 77, 78-79, 167 A.2d 450 (1961); State v. Melechinsky, 36 Conn. Sup. 547, 549, 419 A.2d 900 (1980); the petitioner argues that a writ of error is not the sole method of review of a summary criminal contempt proceeding. Such an argument misconstrues the distinction between summary criminal contempt and civil contempt, as well as the disparate functions of a writ of error and a writ of habeas corpus. Criminal contempt, as distinguished from civil contempt, "is conduct that is directed against the dignity and authority of the eourt." Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). Sanctions are imposed in order to vindicate that authority. Id. Where contemptuous conduct is committed in the presence of the court, punishment may be announced summarily. State v. Melechinsky, supra, 549; see General Statutes § 51-33. Under such circumstances, " 'no witnesses are required in proof of the contempt, and the eourt has inherent power to impose punishment on its own knowledge and of its own motion without formal presentation or hearing of the person adjudged in contempt . . . .' Whiteside v. State, supra, 78." Moore v. State, supra, 259. Civil contempt, conversely, is conduct "directed against some right of the opposing party . . . ." Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974). "'[A] contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.' McCrone v. United States, 307 U.S. 61, 64, 59 S. Ct. 685, 83 L. Ed. 1108 [1939]." McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973). Unlike a summary criminal contempt proceeding, civil contempt is initiated by the opposing party, who seeks vindication of a claimed civil right. Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146 (1972). Although a contemner may seek appellate review of a criminal contempt adjudication, our inquiry "is limited to a determination of the jurisdiction of the court below." Moore v. State, supra, 257. "Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt . (2) whether the punishment imposed was authorized by law . . . and (3) whether the judicial authority was qualified to conduct the hearing. . . ." (Citations omitted.) Id. "Where the contemptuous conduct occurs outside of the presence of the court, and the court acts on the motion of one of the parties, the contempt judgment is reviewable by appeal; Leslie v. Leslie, 174 Conn. 399, 402, 389 A.2d 747 (1978); Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146 (1972); and this is true even if the contempt sanctions imposed are criminal in nature." State v. Melechinsky, supra; see Board of Education v. Shelton Education Assn., supra, 86; McTigue v. New London Education Assn., supra. Where, however, a contemner seeks review of a summary criminal contempt adjudication, such review "has been on a more restricted procedural basis . . . ." State v. Melechinsky, supra. The reason for this limited appellate review lies in the unique character of summary criminal contempt proceedings. "[S]uch adjudications, if they may be called such, are not judgments or awards in the nature of judgments. They are punishments imposed for offenses against the court as an organ of public justice, to enable it to maintain its dignity and duly perform its functions. The power to so punish is essential to a court to enable it to administer justice. Without it a court would be helpless against persons disposed to obstruct, delay, or thwart its proceedings. The power has consequently been held to be inherent in courts . . . ." Goodhart v. State, 84 Conn. 60, 62-63, 78 A. 853 (1911). The ancient remedy of writ of error, "formerly the only method . of carrying up a cause from an inferior to a higher court for the revision of questions of law"; State v. Caplan, 85 Conn. 618, 622, 84 A. 280 (1912); provides a narrow basis for appellate review. It is settled law in this jurisdiction that the scope of appellate review on a writ of error is limited solely to matters appearing as of record. E.g., State v. Assuntino, 180 Conn. 345, 347, 429 A.2d 900 (1980); Reilly v. State, 119 Conn. 217, 223, 175 A. 582 (1934). "A writ of error may not assign as error, nor may we review on a writ of error, allegations concerning the conduct of the trial court that contradict the record . or findings of fact as distinguished from conclusions of law." (Citations omitted.) State v. Assuntino, supra. "Matters occurring at the trial, as rulings on evidence, claimed errors in the charge and the like . . . have no place now in a writ of error . ." Maltbie, Conn. App. Proc. ^ 239 Habeas corpus, as a remedy for illegal detention, is a special and extraordinary writ. Reed v. Reincke, 155 Conn. 591, 594, 236 A.2d 909 (1967). Although "[t]he usual question involved in the proceeding is one of jurisdiction"; Wojculewicz v. Cummings, 143 Conn. 624, 627, 124 A.2d 886 (1956); inquiry as to the claim of lack of jurisdiction ordinarily requires the presentation of evidence, whereas the question of jurisdiction pursuant to a writ of error is confined solely to matters appearing as of record. See Arey v. Warden, 187 Conn. 324, 331-32, 445 A.2d 916 (1982); General Statutes $ 52-470. Thus, while a habeas court may not "review irregularities or errors of procedure or questions as to the sufficiency of evidence"; Wojculewicz v. Cummings, supra, 628; it may, and indeed under appropriate circumstances it must, consider relevant and material evidence beyond that contained in the record. See Jordan v. Estelle, 594 F.2d 144, 145-46 (5th Cir. 1979). It is the final nature of a summary criminal contempt adjudication, and the correspondingly narrow scope of appellate review available on a writ of error, which provides the basis for the established precedent that the writ is the sole means by which a contemner may contest such an adjudication. "A court exercises considerable discretion in dealing with contemptuous conduct occurring in its presence, and its summary adjudication is accorded a presumption of finality." State v. Melechinsky, supra. "Prom necessity the court must be its own judge of contempts committed within its presence." Goodhart v. State, supra. "[T]he punishment, to be effectual, must be immediate and peremptory, and not subject to suspension at the mere will of the offender." Tyler v. Hamersley, 44 Conn. 393, 412, 26 A. 471 (1877). To subject a summary criminal contempt citation to the full multitude of claims of error ordinarily available on appellate review, or to jurisdictional challenges beyond those appearing as of record, would frustrate the inherent power of a court, as an organ of public justice, to punish persons disposed to obstruct, delay or thwart it. See State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960). Only "if it appears from the record that the court did not have jurisdiction, as, for example, that it had no authority to impose the punishment inflicted, or that the act for which the punishment was inflicted could not constitute a contempt, [may] the action of the court . be set aside on a writ of error." Goodhart v. State, supra, 63. There is no error. In this opinion the other judges concurred. The plaintiff's motion was entitled "Affidavit in Support Of Motion To Vaeate Judgment — Writ of Error." "The Aceused: I've already asked you a question and haven't got an answer on that. "The Court: Mr. McClain, you keep this up and I will hold you in contempt. "The Aceused: And, your Honor, if I may say, the petitioner may hold the court beneath contempt. "The Court: Do you want to repeat that? "The Accused: Will you have the stenographer read it back please. "The Court: Read it,. Miss Reporter. (The statement referred to above was read by the reporter.) "The Court: You wish that statement to stand? "The Accused: Does your Honor wish his statement to stand? "The Court: Mr. MeClain, I am asking you a question. Do you want to leave that statement on the record? I am giving you an opportunity to withdraw it. "The Accused: The petitioner would like for his statement to stand. "The Court: The court therefore finds you in contempt, and in addition to the sentence which you are presently serving, will herewith sentence you for contempt in open court to an additional thirty days in jail." State v. McClain, 171 Conn. 293, 370 A.2d 928 (1976). Judge Naruk's contempt citation was not raised as an issue in that appeal. Although the court construed the law as it existed in 1973, it was not required to do so as the law governing appellate review of summary criminal eontempt adjudications has not changed since 1973. General Statutes §51-33 states: "punishment for contempt of COURT. Any eourt may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no eourt may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both." This statute was in effect without material change in 1973. General Statutes (Bev. to 1972) § 51-33. We reject the plaintiff's additional claim that even if he had brought a timely writ of error in 1973, he would not have obtained a hearing on the merits of the summary contempt citation because of the lack of a record. It is true that "[w]hen the contempt is in the presence of the court, there is no written charge or complaint, and therefore there is no opportunity for the one who is punished to protect his rights unless the facts found are spread upon the judgment file. Hence, it is essential that the jurisdiction of the court appear on the face of the judgment." State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960). In 1973, however, Practice Book, 1963, §260 (now §327) stated: "Each court shall keep a record of its proceedings and cause the facts on which it found its final judgments and decrees to appear on the record; and any sueh finding if requested by any party shall specially set forth such facts." Moreover, Practice Book, 1963, § 265 (now § 333) stated in pertinent part: "A special finding of facts under Sec. 260 should rarely be requested or made but when made it becomes a part of the record with the same effect as though the facts were included in the judgment and claims of error may be based upon it as appearing of record. If the special finding is insufficient to support the judgment, the error is one upon the record. The purpose of a special finding is to place upon the record the material facts upon which the judgment is based . . . ." In view of the foregoing, it is apparent that the plaintiff eould have secured an adequate record upon whieh to contest, by writ of error, the jurisdiction of the trial court. See Brown v. Cray, 88 Conn. 141, 144, 89 A. 1123 (1914). We further reject the plaintiff's claim that only with respect to citations issuing from a municipal court is the writ of error the sole means of reviewing a criminal contempt citation. Our cases make no such distinction.

Per Curiam. The plaintiffs brought this action to set aside the conveyance of real property by the decedent to the defendant. The case was referred to an attorney trial referee pursuant to General Statutes § 52-434 (a) (4). After trial, the attorney referee filed a report setting forth his findings and recommending that judgment should issue in favor of the plaintiffs. On appeal from the judgment rendered by the trial court accepting the report of the attorney trial referee, the defendant challenges two findings of the attorney trial referee. Practice Book § 438 requires that a party challenging the factual findings of an attorney trial referee must file a motion to correct with the trial court within two weeks after the filing of the referee's report. The defendant, however, failed to file such a motion in the present case. Having filed no motion to correct any of the facts found by the attorney trial referee, the defendant has waived any right to attack the subordinate factual findings contained in the report. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986); Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985). Furthermore, the defendant failed to object to the trial court's acceptance of the report pursuant to Practice Book § 440 and, therefore, the conclusions reached in the report must stand. Seal Audio, Inc. v. Bozak, Inc., supra. Accordingly, we decline to review the judgment of the trial court. Id. There is no error. The plaintiffs are the executor of the estate of the decedent and the decedent's three grandchildren.

Daly, J. This appeal involves an action seeking attorney's fees for work performed. The plaintiff appeals from a judgment of the trial court in favor of the defendant. On appeal the plaintiff raises the following claims: (1) the court erred in holding that the defendant was not personally responsible for the contract when this defense was not specially pleaded; (2) the court erred in requiring the plaintiff to bear the burden of proof concerning the defendant's individual responsibility under the contract; and (3) the court erred in excluding from evidence two letters written by the plaintiff. The following facts were found by the trial court. The defendant, owner of the New Haven Credit Adjustment Bureau, Inc., contacted the plaintiff to represent the corporation's interest in several matters before a federal court. Soon thereafter, the defendant became somewhat disenchanted with the plaintiff's legal representation of the corporation. Eventually, the defendant settled the matters of the corporation out of court and by himself. The plaintiff contends that he worked over 100 hours for the defendant without receiving compensation. The plaintiff attempts to obtain compensation for his services through this action. In his first claim, the plaintiff alleges that the trial court erred in holding that the defendant was not personally responsible for the contract when that defense was not specially pleaded. Specifically, the plaintiff claims that by not specially alleging that this was a corporate debt, he had no notice of the claim. In support of his position, the plaintiff relies on Practice Book § 164, which provides in pertinent part: "No facts may be proven under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding that he has no cause of action, must be specially alleged." Our Supreme Court, in DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971), has explained the rationale which underlies § 164: "The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . ." The plaintiff's claim, however, is incorrect. By denying the plaintiffs allegation that the defendant was personally liable on the debt, the defendant was permitted to prove facts which "show that the plaintiff's statements of fact are untrue" without specially pleading those facts. Practice Book § 164; Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973). In Pawlinski, our Supreme Court stated (p. 6): "Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact." (Emphasis added.) In this action, the defendant's case consisted of introducing affirmative evidence that no professional services had been rendered to the defendant on an individual basis. Moreover, the plaintiff waived any deficiency in the pleadings by failing to object to evidence concerning corporate liability of the debt. It is a well established rule that the failure to raise a special defense is waived when the evidence is admitted without an objection. Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981). In the plaintiff's second claim of error, he contends that the court erred in requiring the plaintiff to bear the burden of proof concerning the defendant's liability for the amount owed. It is well established that the party who initiates an action and who seeks a judgment in his favor must prove that which he alleges in order to prevail. See Nikitiuk v. Pishtey, 153 Conn. 545, 552-53, 219 A.2d 225 (1966); B. Holden & J. Daly, Connecticut Evidence § 53. Whether the plaintiff sustained his burden of proof is a question of fact for the trier. Our job in reviewing a factual determination of the trial court is limited. "We are not the finders of fact; that is for the trial court." Capmar Construction, Inc. v. Coyle, 4 Conn. App. 579, 580, 495 A.2d 1115 (1985). Our job is merely to examine if there is sufficient evidence in the record to support the decision of the trial court. Cushman v. Calvo, 196 Conn. 509, 514, 493 A.2d 891 (1985). The evidence in the record overwhelmingly supports the court's decision. The plaintiff's final claim is that the court erred in not allowing the plaintiff to introduce two letters into evidence. The plaintiff contends that these two letters were written by him contemporaneously with telephone conversations which he had regarding his representation of the corporation. In support of his argument, the plaintiff contends that the letters are admissible as reply letters and as business records. We find the plaintiff's arguments imaginative, yet unconvincing. To be admissible as a reply letter, the letter must be claimed by the recipient, not the sender. See C. McCormick, Evidence (3d Ed.) § 225, pp. 695-97. The plaintiffs attempt to have the letters come within the business records exception to the hearsay rule is equally without merit. This court has held that to fall within this narrow exception it must be shown (1) that the document was made in the regular course of business, and (2) that it was in the regular course of business to make the writing or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Connecticut Limousine Service, Inc. v. Powers, 7 Conn. App. 398, 400, 508 A.2d 836 (1986). The record indicates that the plaintiff failed to establish both of these requirements. The trial court correctly refused to consider the letters. There is no error. In this opinion the other judges concurred.

Per Curiam. There is no error.

Bieluch, J. The defendant appeals from a judgment of conviction, after a jury trial, of disorderly conduct in violation of General Statutes § 53a-182 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court erred in failing to dismiss the charges against him for lack of a speedy trial. We agree and therefore find error. The jury could reasonably have found the following facts. The defendant was arrested in the early morning hours of September 4,1982, after two Enfield police officers were called by the desk clerk of the Harley Hotel in Enfield because of a noisy party involving the defendant, his wife, and a group of family members and friends gathered in his room. The defendant became involved in an altercation with the police and, as a result, was arrested and charged with assault on an officer in violation of General Statutes § 53a-167c as well as the charges for which he was convicted. The following procedural facts are relevant to the defendant's claim on appeal. The defendant was arraigned on September 21, 1982; he entered a plea of not guilty to all charges and elected to be tried by a jury. The case was pretried on October 2, 1982, at which time the defendant was advised that there would be no plea bargain and he would have to go to trial on the original charges. The case was assigned for trial successively on October 27, 1982, December 3, 1982, January 27, 1983, March 8, 1983, April 8, 1983, May 17,1983, July 6,1983, August 19,1983, and September 1, 1983. On September 6, 1983, the defendant was notified that his case was on "standby," subject to a one and one-half hour notice to commence trial, but he did not go to trial from that assignment. The case was thereafter further assigned for trial on October 4,1983, and November 1, 1983. On December 2, 1983, he was ordered to a further pretrial conference, again to no avail, but he was given the status of "first ready case," subject to a two hour call that never came. Thereafter, the case was assigned for trial on January 4, February 7 and March 6,1984. The defendant's counsel was called to a third pretrial on March 20,1984, again with no resulting agreement. He was then informed that the defendant's case was the "next ready" case to be tried. The defendant and his counsel prepared for trial again. The defendant this time issued subpoenas for about twenty-five witnesses at a cost of approximately $700. These subpoenas expired when the case was not reached as scheduled. The case continued, however, to be assigned monthly through July, 1984. On April 5, 1984, nineteen months after his arrest, the defendant filed the first of three written motions to dismiss for lack of a speedy trial. This motion was not set down for a hearing. Therefore, on July 9,1984, the defendant refiled his original motion to dismiss for lack of a speedy trial, together with a second motion to dismiss on the same ground, but with a complete rec ital of the case assignments for appearance and trial to that date. The trial court thereafter denied both motions. At the time of the court's denial of the defendant's first two motions to dismiss for lack of a speedy trial on July 23,1984, the case against him was over twenty-two and one-half months old and had, by the court's own count, been assigned for trial twenty times. The defendant and his counsel, both residents of Fairfield County, had appeared on thirteen occasions ready for trial at the Superior Court for geographical area number thirteen, jury trials for which were then being held in Manchester. Although the trial court acknowledged the lengthy delay and frustration experienced by the defendant, it concluded that under the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), "the interests of the people of the state prevail." The court subsequently ordered that the defendant's case would be the "number one ready" case on October 1, 1984. The defendant, however, was not allowed to go on trial on subsequent assignment dates of October 2, 1984, November 27, 1984, January 22, 1985, February 5, 1985, February 26, 1985, and March 13, 1985. When the case was assigned for trial on April 30, 1985, the defendant filed his third motion to dismiss the information for lack of a speedy trial. The court heard and denied the defendant's motion on the same day, after which trial immediately began with jury selection, thirty-two months after the defendant was arrested, and after twenty-five assignments for trial, some of which were expressly declared by the court to be of top priority status. The defendant claims that this delay in his prosecution was a violation of his constitutional right to a speedy trial and, consequently, that the trial court should have dismissed the charges against him. "The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right is also guaranteed by the Connecticut constitution, article first, § 8." State v. Johnson, 190 Conn. 541, 544, 461 A.2d 981 (1983). The United States Supreme Court and the Connecticut Supreme Court have stated that there are four factors which should be considered in assessing a defendant's constitutional right to a speedy trial. They are: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, supra, 530; State v. Johnson, supra, 544-45. This balancing test is to be applied on a case by case basis. " 'None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant's right was violated.' State v. Johnson, [supra, 544]." State v. Gasparro, 194 Conn. 96, 99-100, 480 A.2d 509 (1984); cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). Our consideration of the four Barker factors leads us to the conclusion that the defendant has established that he was denied his constitutional right to a speedy trial. "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, supra. The defendant's arrest on Sep tember 4,1982, activated the protection afforded him by the constitutional speedy trial guarantee. Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). The defendant's trial began on April 30,1985, thirty-two months later. The state concedes that this delay is sufficiently long to warrant further inquiry. The Connecticut Supreme Court and this court have found that similar delays, while not sufficient in themselves to establish a speedy trial violation, were sufficient to warrant inquiry into the other Barker factors. See, e.g., State v. Gasparro, supra, (three and one-half years); State v. Davis, 192 Conn. 739, 474 A.2d 776 (1984) (twenty-six months); State v. Cleary, 3 Conn. App. 349, 488 A.2d 831 (1985) (thirty-six months). We next consider the reasons for the delay in the defendant's prosecution. Except for a brief continuance sought by the defendant, the state bears the responsibility for the thirty-two month delay between the date of the defendant's arrest and the commencement of his trial. The state assigns docket overcrowding as its reason to justify the delay. "While docket congestion does not justify or exeuse delay; State v. Davis, [supra, 742]; it is considered a neutral reason and is 'weighed less heavily against the state than purposeful delaying tactics.' State v. Gasparro, [supra, 100]. This reason must nonetheless be considered 'since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.' Barker v. Wingo, supra, 531." State v. Flowers, 198 Conn. 542, 550-51, 503 A.2d 1172 (1986). 'The state's explanation, its crowded docket, while not favored, still does not establish the defendant's case." State v. Lloyd, 185 Conn. 199, 209, 440 A.2d 867 (1981). Under the Barker test, the defendant must also establish that he asserted his right to a speedy trial and was prejudiced by the lack thereof. Barker v. Wingo, supra, 530. The state, maintains that the defendant's assertion of his right to a speedy trial was insufficient to prove that he was denied a speedy trial. The defendant's assertion of this right by a motion to dismiss was not filed until nineteen months after his arrest. "This factor militates against the defendant's claim. The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial. Barker v. Wingo, supra, 528, 531-32." State v. Johnson, supra, 545. On September 6, 1983, one year after his arrest, the defendant was advised that his prosecution was on a "standby" basis, subject to a one and one-half hour notice to commence trial. Three months later, he was again given the status of "first ready" case, subject to a standby notice of two hours. On March 20, 1984, his was the "next ready" case to be tried. For the period of seven months between September 6, 1983, and March 20, 1984, the defendant was "officially" informed by the court, a most reliable source, that his trial was imminent. A motion to dismiss for lack of a speedy trial in that interval under those circumstances could not have been expected, at least for a reasonable time from the official notifications. In fact, however, the defendant was misled by the court for that period and for a reasonable time after March 20, 1984, into thinking that he would be put to trial shortly, and even expended about $700 for the issuance of subpoenas that expired sixty days after issuance. See General Statutes § 52-144 (form of subpoena). When the defendant realized that his "standby" and "first ready" assignments on the trial docket were meaningless after relying upon the state's official representations for over seven months, on March 31, 1984, he properly prepared for the first time a motion to dismiss for lack of a speedy trial, which he filed for the first time on April 9th, 1984. Furthermore, this motion to dismiss was itself delayed by the court for a ruling until July 23, 1984, and only after he had renewed the motion on July 9,1984. Under these circumstances, it is reasonable to assume that the defendant acted reasonably and delayed the filing of his first motion to dismiss based on an inspired belief that the commencement of his trial was imminent. A defendant should not be penalized because of inaction on his part which was reasonably prompted by the court's repeated assurances, here in the form of imminent and hourly "standby" assignments for top priority of trial. It is also significant that the defendant was not put to trial until April 30, 1985, thirteen months after he first asserted his right to a speedy trial by written motion. The defendant also filed two additional motions to dismiss protesting the lack of a speedy trial. This subsequent long delay under the circumstances here, in light of the defendant's repeated and forceful assertions, becomes even less excusable for those very reasons. "We count the defendant's assertion of his right heavily against the state . . . . " State v. Flowers, supra, 548-49. The final Barker factor to be considered is prejudice caused by the delay. "Prejudice, in the context of a speedy trial claim, 'should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. The [United States Supreme Court] has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.' Barker v. Wingo, supra, 532." State v. Foshay, 12 Conn. App. 1, 16, 530 A.2d 611 (1987). The defendant here was not incarcerated and makes no claim on appeal that his defense was affected by the delay in his prosecution. The only factor applicable to this case is, therefore, the interest of minimizing anxiety and concern of the defendant. The United States Supreme Court has stated that "even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often hostility." Barker v. Wingo, supra, 533. Our Supreme Court has observed that prejudice of this nature "is unfortunately present in every case of pretrial delay." State v. Flowers, supra, 553. We emphasize, however, that the defendant's life was disrupted and he suffered inconvenience, embarrassment, loss of earnings, extended retention of counsel and the stigma of pending criminal charges during a thirty-two month delay in the prosecution of relatively minor criminal charges. We find the egregious conduct of the state in delaying the defendant's trial and day of judgment on such charges to be in the nature of harassment. The defendant, a self-employed gardener, was required to lose time from work for each court appearance. The defendant was also required to retain private counsel for his defense over an unduly long period, as well as to prepare subpoenas for witnesses several times, at substantial cost. We find it unjust and unfair that a per son accused of relatively minor offenses should be so burdened for thirty-two months. Present time standards for trial, although not applicable here, support this conclusion. An affirmative showing of actual prejudice is not essential in a speedy trial claim when the defendant is able to show that the other three Barker factors weigh heavily against the state. State v. Flowers, supra, 551-52. Therefore, even if we do not consider the unnecessary prolonged anxiety and concern suffered by the defendant to be of a convincing prejudicial nature, an affirmative showing of this prejudice would not be needed where, as here, the other three factors strongly implicate the state. The thirty-two month delay is substantial; the reason for the delay, court congestion, is not redounding to the state's credit; and the defendant's assertion of his right to a speedy trial weighs heavily in his favor. " 'The reason for dispensing with the prejudice requirement entirely when the other three factors point heavily toward a violation of speedy trial is deterrence; the prosecution should not be permitted to engage in inexcusable misconduct on the hope that the defendant will not be able to make out a case of [actual] prejudice. Where such misconduct has occurred, the state cannot complain that the legitimate interests of its criminal justice system, being pursued in good faith, are being sacrificed because of an honest mistake in a case in which no ultimate harm has been done.' Turner v. Estelle, 515 F.2d 853, 858 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1431, 47 L. Ed. 2d 361 (1976); see also Gray v. King, 724 F.2d 1199, 1204 (5th Cir.), cert denied, 469 U.S. 980, 105 S. Ct. 381, 83 L. Ed. 2d 316 (1984)." State v. Flowers, supra, 552. In State v. Cleary, supra, we upheld the trial court's dismissal of robbery and larceny charges where the state was not ready to proceed with a trial thirty-six months after the arrest and after five scheduled trial dates spanning a period of six months. Under those circumstances we stated: "It is unnecessary to decide whether the facts of this case warrant the conclusion that the defendant was deprived of his constitutional right to a speedy trial. It is only necessary to decide whether the state failed to prepare diligently for trial." Id., 353. The defendant's prosecution was assigned for trial twenty-five times, twice in 1982, nine times in 1983, nine times in 1984 and five times in 1985. From September 6,1983, twelve months after his arrest, his trial was in a standby ready or next ready trial status, but was not reached for trial until twenty months later. The record belies the state's claim that a congested court docket prevented the case from slipping from the "first ready" or "standby" trial status into the next available trial slot and courtroom between September 6, 1983 and April 30,1985. Except for one brief continuance sought by the defendant, he was at all times ready, prepared and expecting to go to trial and judgment. Thirty-two months after the defendant was first arrested and charged with relatively minor offenses, his trial finally began. As it was so aptly stated in State v. Cleary, supra, "[t]he facts speak for themselves." The trial court erred in failing to grant the defendant's motion to dismiss the charges against him. There is error, the judgment convicting the defendant of disorderly conduct and of interfering with an officer is set aside, and the case is remanded with direction to grant the defendant's motion to dismiss the charges against him for lack of a speedy trial. In this opinion the other judges concurred. General Statutes § 53a-182 provides: "(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse. "(b) Disorderly conduct is a class C misdemeanor." General Statutes § 53a-167a provides: "(a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties. "(b) Interfering with an officer is a class A misdemeanor." The defendant relies on both the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, but offers no separate analysis of the Connecticut constitution as a basis for different treatment between the federal and state constitutional claims. We decline to undertake such an analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986). Although Practice Book § 956B does not apply to this case, the alleged offenses having occurred prior to its effective date, July 1,1983, we observe that under that rule the defendant's trial would have been required to commence within eighteen months from the filing of the information or arrest before July 1, 1985, and within twelve months thereafter. These rules for speedy trial were adopted pursuant to the statutory mandate of General Statutes § 54-82L The state observes that the defendant points to matters not included in the record to strengthen his claim of diligent assertion of his right to a speedy trial. This court may not speculate as to events which occurred off the record. State v. Conrod, 198 Conn. 592, 598, 504 A.2d 494 (1986). The defendant's claim is, therefore, reviewed " 'shorn of those "facts" which [he] seeks to add.' " State v. Cooper, 9 Conn. App. 15, 24, 514 A.2d 758 (1986). See footnote 4, supra.

Spallone, J. The defendant appeals from the judgment of conviction, after a jury trial, of the crime of kidnapping in the second degree in violation of General Statutes § 53a-94. We find no error. On June 26, 1981, Deputy Sheriff Joseph Ravalese was assigned to the lockup at the Superior Court, judicial district of Hartford. The defendant, on that day, was on trial for murder and kidnapping. At the end of the day, as part of his duties, Ravalese was responsible for transporting the defendant to the Hartford correctional facility on Weston Street. The defendant was handcuffed to another prisoner and placed in Ravalese's vehicle, where he was seated in the back seat directly behind the driver. As Sheriff Ravalese was driving along Windsor Street, the defendant put his left arm around Ravalese's neck in a choke hold, exerting pressure on his throat. The defendant then put a homemade icepick to Ravalese's neck and threatened him. The defendant unlocked the handcuffs and ordered Ravalese to handcuff himself to the steering wheel. Ravalese seemingly obeyed, but, in fact, he only simulated attaching his arm to the wheel. Because of the heavy traffic the vehicle was proceeding at a very low speed. The defendant, observing a police cruiser in a parking lot, warned Ravalese "not to do anything stupid or he would be a dead man." After holding Ravalese in a choke hold with the ice pick against his neck for approximately sixteen minutes, the defendant fled from the car and ran in a northerly direction. After exiting his vehicle in pursuit of the defendant, Ravalese shouted to the police officer in the cruiser for assistance. The defendant was apprehended by the officer. The defendant was tried to a jury and was convicted of escape from custody, kidnapping in the second degree and assault on a peace officer. The defendant moved to set aside the verdict claiming, inter alia, that the court erred in refusing to charge on kidnapping as incidental to the escape charge. After his motion to set aside was denied, the defendant took this appeal, and claims solely that the trial court committed reversible error in refusing his request to charge the jury on kidnapping as incidental to the escape. The sole issue before us is the propriety of the trial court's refusal to give any instructions to the jury on kidnapping as incidental to the charge of escape rather than as a separate crime. The defendant's assertion is without merit and in fact is contrary to current Connecticut law. The trial court based its rulings on State v. Vass, 191 Conn. 604, 469 A.2d 767 (1983), in which our Supreme Court held that, "if the state proves all the elements of kidnapping, including the specific intent to restrain, beyond a reasonable doubt, the defendant may be convicted of kidnapping in addition to another felony, even though the two offenses arose out of the same conduct." Id., 614-15. Where the requisite intent is present, the fact that the perpetrator's underlying motive for the detention is the commission of another crime does not preclude a conviction for kidnapping. State v. Lee, 177 Conn. 335, 344, 417 A.2d 354 (1979). Our Supreme Court has rejected the doctrine which would merge the act of kidnapping into the other crime charged where the kidnapping was merely incidental to such crime. State v. Amarillo, 198 Conn. 285, 304, 503 A.2d 146 (1986); State v. Johnson, 185 Conn. 163, 171, 440 A.2d 858 (1981); aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 339, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, supra, 343; State v. Chetcuti, 173 Conn. 165, 170, 337 A.2d 263 (1977). The defendant's reliance upon State v. Dubina, 164 Conn. 95, 318 A.2d 95 (1972), is misplaced. Since Dubina was decided, our Supreme Court has repeatedly held that a defendant may be convicted of two crimes that derive from the same conduct where the state is able to prove beyond a reasonable doubt the essential elements of each crime. State v. Amarillo, supra, 305; State v. Vass, supra, 614-15, 616 n.9; State v. Briggs, supra, 339. The trial court acted properly and in accordance with the law when it refused to instruct the jury that it was to determine whether the kidnapping was incidental to the escape. There is no error. In this opinion the other judges concurred.

Spallone, J. The plaintiff administratrix of the estate of the decedent, Scott Malmberg, is appealing from the judgment of the trial court after the jury returned a verdict for the plaintiff but awarded zero damages. The plaintiff claims that the trial court erred in denying her motion to set aside the verdict. We agree and find error. The jury could reasonably have found the following facts. On the evening of May 15,1982, Scott Malmberg, and his date, Ann Marie Lopez, attended a social gathering at the home of Dwight Kettlehut in Cheshire. Malmberg had driven Lopez and Doreen Mosesian to the party after picking them up at Mosesian's home in West Hartford. They arrived at the party at about 10 p.m. At the party, beer, fruit juice and vodka punch were available for consumption. The party broke up at about 12:30 a.m. Thereafter, with the defendant, Kettlehut and Mosesian as passengers, Malmberg began driving toward West Hartford, via 1-84, to take Mosesian and Lopez to Mosesian's house where both women were to spend the night. The trip began with Malmberg in the driver's seat, Lopez in the front passenger seat, Kettlehut in the center of the back seat, and Mosesian to his left. At some point on 1-84, Malmberg, complaining of a pain in his shoulder, asked the defendant if she would drive. Upon her assent, he pulled to the side of the road and they changed places. With the defendant driving, they proceeded on toward West Hartford. At a point near exit 39 on eastbound 1-84, the defendant was proceeding in the left hand lane approaching an exit ramp situated on the left. The car then went off the highway to the left and struck a light pole and a guardrail and rolled down an embankment. Kettle-hut and Mosesian were not injured and crawled out of the vehicle through the rear window. Kettlehut observed that Malmberg and the defendant were not in the car. Kettlehut called for Malmberg and then went up the embankment to the highway, where he saw a silhouette on the road that proved to be Malmberg. Kettlehut then flagged down a passing car from which one person got out and another continued on to seek help. Kettlehut then discovered the defendant on the embankment. Shortly thereafter, the police and an ambulance arrived on the scene. Malmberg later died because of fractured cervical vertebrae. During the trial, Kettlehut testified substantially as stated above. The defendant testified that she had planned to spend the night at Mosesian's house located on Farmington Avenue in West Hartford and that the accident happened in the area of the exit for the town of Farmington. She stated that she was unfamiliar with that portion of the highway near the exit. The defendant could remember nothing else about the accident at the trial. The plaintiff, however, introduced into evidence an accident report filed by the defendant one month after the accident. In this report, the defendant admitted that she was the operator of the vehicle at the time of the accident and that while so engaged she was involved in an accident in Farmington on 1-84 near exit 39 eastbound. In describing what happened, the defendant stated in the report that "Vehicle #1 went off 1-84 and hit a light pole and guardrail and rolled down the embankment." She also stated in the report that one person had been killed in the accident. The plaintiff also introduced into evidence a certified copy of Malmberg's death certificate, which stated that on May 16, 1982 at 1:30 a.m. in the town of Farming-ton, Scott Malmberg was a passenger in an auto that left the road at a highway exit ramp at exit 39 of 1-84 eastbound and that he died in an accident of fractured cervical vertebrae. After deliberating, the jury returned a plaintiffs verdict which read: "In this case the Jury finds the issues for the Plaintiffs [sic] Margaret Malmberg, Administratrix of the Estate of Scott Malmberg, as against the Defendant, Anne Marie Lopez, and therefore finds for said Plaintiff to recover of the defendant $0.00 (ZERO) dollars damages." The plaintiff thereafter filed a motion to set aside the verdict, claiming that the award of zero damages was contrary to the law and the evidence and requesting a new trial on the issue of damages only. The court denied the motion, reasoning that the jury could reasonably have concluded that the plaintiff had failed to prove that the defendant's conduct was the proximate cause of Malmberg's death. The court observed that there was no evidence as to the manner in which the decedent had exited the vehicle, and that it was entirely possible that the decedent left the vehicle, returned to the highway and was thereafter struck by a motor vehicle. The court concluded that "the verdict was not only not against the weight of the evidence but rather represented a logical and reasonable result." The court thereafter rendered judgment in accordance with the jury verdict, and the plaintiff appealed. Initially, we note that the trial court apparently assumed that the jury's return of a plaintiff's verdict and zero damages was the legal equivalent to a finding of a defendant's verdict. Such an assumption is incorrect. When rendering a defendant's verdict, a jury finds that the plaintiff has failed to establish that the defendant is liable; the jury never reaches the issue of damages. See Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978). In rendering a plaintiff's verdict with zero damages, however, the jury finds the defendant liable, but further finds that the plaintiff has failed to prove damages. In ruling on the plaintiffs motion to set aside the verdict, therefore, the trial court misperceived its task. Rather than attempting to determine whether the jury could reasonably find that the plaintiff failed to prove liability — a finding contrary to the jury's verdict — the court should have determined whether the award was inadequate as a matter of law. In determining whether an award is inadequate, the basic question is " 'whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.' " Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25 (1986), quoting Briggs v. Becker, 101 Conn. 62, 66-67, 124 A 826 (1924). Under this standard, there can be little doubt that the award in this case was inadequate as a matter of law. The elements of damages in death cases consist of reasonably necessary medical, hospital and funeral expenses together with "just damages" including: "(1) the value of the decedent's lost earning capacity less deductions for [his] necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of [his] capacity to carry on and enjoy life's activities in a way [he] would have done had [he] lived, and (3) compensation for conscious pain and suffering." Katsetos v. Nolan, 170 Conn. 637, 657, 368 A.2d 172 (1976); Zarrelli v. Barnum Festival Society, Inc., supra, 328. The defendant does not contend, nor did the court below find, that the evidence introduced by the plaintiff on these elements was in any way speculative or unconvincing. We conclude, therefore, that zero damages is clearly inadequate in the face of the evidence adduced at trial and that the court erred in denying the plaintiff's motion to set aside the verdict. The defendant claims that the judgment of the trial court should nonetheless be affirmed because the trial court would have been justified in setting aside the plaintiff's verdict on the ground that the plaintiff failed to establish that the defendant was negligent or that any negligence caused the accident. Our Supreme Court has held that it is proper to refuse to set aside a plaintiff's verdict for nominal damages where the evidence fails to demonstrate that the plaintiff has established the defendant's liability. Johnson v. Franklin, 112 Conn. 228, 230, 152 A. 64 (1930). The defendant prop erly preserved this alternate ground for review by filing a preliminary statement of issues under Practice Book § 4013 (a) (1). Southland Corporation v. Vernon, 1 Conn. App. 439, 451, 473 A.2d 318 (1984). In claiming that the plaintiff failed to establish the defendant's negligence, the defendant basically contends that the trial court would have been justified had it either directed a verdict for the defendant or set aside the verdict for the plaintiff. As to either of these instances, the evidence must be given the construction most favorable to support the verdict. Carrier v. Rodrigue, 3 Conn. App. 401, 402, 488 A.2d 845 (1985). The verdict of the jury should stand if the jury could reasonably conclude as they did. Frankovitch v. Burton, 185 Conn. 14, 15, 440 A.2d 254 (1981). In the present case, the plaintiff produced sufficient evidence from which the jury could infer that the defendant was negligent and that the defendant's negligence was the proximate cause of the decedent's death. There was evidence that the defendant had been drinking at the party, that she was unfamiliar with the highway at the place of the accident, that she was intending to exit 1-84 toward Farmington Avenue in West Hartford, but went off the road at the town of Farmington exit, and that she was out past her curfew at the time of the accident. From this evidence, the jury could have found that the defendant, whether because of intoxication, confusion, or haste to arrive at her destination, had failed to keep the vehicle under proper control, thus causing the accident. Furthermore, the jury could also reasonably infer that the decedent's fractured cervical vertebrae were caused by the vehicle's collision with a light pole and guardrail, and that this injury caused his death. We therefore find that there was sufficient evidence to support the jury's verdict on liability and that the defendant's alternate ground to uphold the action of the trial court is without merit. Although not addressed by either party, we must now consider whether the remand in this case should be for a new trial on all issues or on the issue of damages only. While this issue has not been directly addressed by an appellate court in this state, it has been considered by a significant number of other jurisdictions. See annot., 29 A.L.R.2d 1199. At issue are competing policy interests: on the one hand, a concern for finality and judicial economy dictates that there should be but one fair trial on any issue and that both the state and the parties should be spared the annoyance, expense, and delay caused by a retrial on an issue to which no reversible error appears. On the other hand, issues of liability and damages may often be intertwined such that it would be unfair to litigants to limit a new trial to the issue of damages only. See 58 Am. Jur. 2d, New Trial § 25, 27. Under the circumstances in this case, we find that it is appropriate to remand this matter for a hearing in damages only. We base our decision on several factors. First, although liability was contested, the plaintiff presented a strong case such that it was unlikely that the jury verdict of liability was based on bias, prejudice, or other extraneous matters. The plaintiff presented sufficient evidence of negligence, and the defendant did not allege that the decedent was contributorily negligent. The suggestion offered by the trial court, that the plaintiff's proof of causation was weak because the evidence did not preclude the possibility that the decedent was struck by another automobile, is totally speculative and was not even suggested by the defendant during the trial. We note that even if the decedent had been negligently struck by a separate automobile after the accident, it is still probable that the defendant's negligence would have been a substantial factor and thus a proximate cause of the decedent's death. See Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973). Second, in a wrongful death case such as this one, we find that the issues of liability and damages are conceptually distinct, making it unlikely that the jury could confuse them. Cf. Rosenblatt v. Berman, 143 Conn. 31, 39, 119 A.2d 118 (1955) (question of damages "inextricably mixed" with question of liability where the plaintiff alleged several acts upon which recovery could be based and where award of damages failed to correspond with any of the alternate measures of damages instructed by the trial judge). Moreover, the court clearly distinguished the issues of liability and damages in its charge to the the jury. Third, this does not appear to be a case where the verdict was a result of compromise where the jury agreed to a low damage award because of a perceived weakness in liability. See annot., 29 A.L.R.2d 1199, 1214, § 10. Rather, the jury appeared to have been motivated by sympathy for the defendant. The defendant was eighteen years old at the time of the accident; she had been dating the decedent at the time; at trial the defendant openly wept about the decedent's death and appeared to be still emotionally devastated; and after the jury began their deliberations, they asked to be informed about motor vehicle insurance, thus suggesting that they were concerned with whether the defendant would be personally liable. These factors indicate that the jury may have been motivated by sympathy for the defendant in finding as it did. Finally, we are cognizant that the defendant has not attempted to preserve her rights to a new trial on all issues at any stage in these proceedings. Despite the fact that the jury returned a plaintiff's verdict, the defendant did not move to set aside that verdict, nor did she cross-appeal from the judgment sustaining the verdict, nor did she argue at any point before this court that the remand should not be solely limited to damages. The defendant was perhaps hesitant to attack a result that freed her of any obligation to pay damages. Nevertheless, in the face of a verdict finding against her on liability, the defendant bore the risk that either the trial court or this court could find that the damages awarded were inadequate and require that a new trial be held on this issue of damages. Despite this possibility, the defendant took no action to preserve any right she might have to a new trial on all issues. We are reluctant to grant the defendant relief that she never sought despite having a clear opportunity to do so. See Nolan v. Spears, 432 S.W.2d. 425, 428 (Ky. App. 1968). There is error, the judgment is set aside as to damages only and the case is remanded for a hearing in damages before a jury. In this opinion Hull, J., concurred. The court made this clear in its charge to the jury. See footnote 6, infra. Where a plaintiff has established liability but has failed to prove actual damages, an award of nominal damages is appropriate. Riccio v. Abate, 176 Conn. 415, 418-19, 407 A.2d 1005 (1979); Covey v. Wilson, 4 Conn. App. 233, 239, 493 A.2d 290 (1985). " 'Nominal damages means no damages. They exist in name only and not in amount.' " Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973). Alternatively, when reviewing a motion to set aside the verdict in a case where the jury has returned a plaintiff's verdict for nominal damages, a trial court is justified in denying the motion if it concludes that it would be proper to set aside the verdict on liability. Johnson, v. Franklin, 112 Conn. 228, 231, 152 A. 64 (1930). See discussion at footnote 4, infra and accompanying text. In the present case, however, the trial court, did not rely on this alternate rationale when denying the plaintiffs motion to set aside the verdict. Although the trial court concluded that the jury could reasonably have found that the plaintiff failed to establish the defendant's liability, it was operating under the erroneous assumption that a jury verdict of zero damages was the legal equivalent of a defendant's verdict. Viewing the evidence in the light most favorable to what it considered to be a defendant's verdict; Carrier v. Rodrigue, 3 Conn. App. 401, 402, 488 A.2d 845 (1985); the court found that the jury could reasonably conclude that the plaintiff has failed to establish the defendant's liability. The trial court, however, never addressed the issue of whether, viewing the evidence in the light most favorable to sustaining a plaintiff's verdict, it would have been justified in setting aside the verdict, thereby further justifying the denial of the plaintiff's motion to set aside the verdict. "The real aggrieved party in such case is the party against whom the verdict, even though small, was rendered. If he makes no complaint, cer tainly the prevailing party can not be heard to complain." Johnson v. Franklin, 112 Conn. 228, 231, 152 A. 64 (1930), citing Lambert v. Kamp, 101 Cal. App. 388, 392, 281 P. 690 (1929). The plaintiff, both at the trial court and in this court, has moved for a new trial solely on the issue of damages. She has not, however, explained in her brief or at oral argument why the trial should be limited to damages. Likewise, the defendant failed to discuss this issue in her brief or at oral argument. The court charged in pertinent part: "If you find there is no liability that is the end of the case and your verdict should be for the defendant. On the other hand, if you determine the issue of liability in favor of the plaintiff, then she is entitled to money damages under the rules which I will now give you. So, no liability, end of case. If liability is established then you proceed to consider the subject of damages." The court then charged on the elements of damages and concluded by discussing the two verdict forms presented to the jury for rendering its verdict. The court stated: "In this case if you conclude there is no liability on the part of Miss Lopez under the instructions I have given you, you use this form of verdict [defendant's] . The other is a form entitled plaintiffs verdict. And you'll use this form if you resolve the issue of liability in favor of the plaintiff and resolve that the plaintiff is entitled to just damages under the instruction as I've given you."

Per Curiam. There is no error.

Hull, J. The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95 and robbery in the third degree in violation of General Statutes § 53a-136/ arising out of a series of events occurring in Hartford on February 17, 1984. Prior to trial, the defendant requested that the state disclose the essential facts claimed to constitute the offense pursuant to Practice Book § 625. In response, the state specified the factual background for the charges against the defendant as follows: "On February 17,1984, at about 8:00 p.m. in the Civic Center Garage, Hartford, the defendant Webb forced his way into the auto of the female victim and forced her to have vaginal sexual intercourse with him and touched her breasts then forced her to sign over to him her pay check and then eventually drove her around parts of North Hartford, ending up on Tower Avenue about 11:00 p.m." After a trial to a jury, the defendant was convicted as charged. He now appeals, challenging the judgment of conviction of robbery in the third degree only, claiming that the trial court erred in three respects: (1) in failing to submit to the jury an information amended by the statement of essential facts pursuant to Practice Book § 625, and in instructing the jury on General Statutes § 53a-133 (1) which he claims related to and defined conduct totally distinct from that specified in the statement of essential facts; (2) in denying his motion for judgment of acquittal because the state failed to present sufficient evidence to support his conviction for robbery in the third degree; and (3) in charging the jury on reasonable doubt. We find no error. The pertinent facts which the jury could reasonably have found are as follow: At 8 p.m., on February 17, 1984, the victim, twenty-nine years of age, went to get her car in the Hartford Civic Center garage. As she was getting ready to exit the garage, the defendant came up to the driver's side of her car and forced her into the middle of the car. He then ripped at her clothing, partially undressed her, threatened to kill her, and forced her to have vaginal intercourse with him and to perform fellatio on him. During the hour that the defendant was engaged in sexual intercourse with the victim, he searched through her pockets demanding to know what they contained. In order to get answers to this and other questions, he slapped her face. The victim told the defendant that her pay check was among her belongings. While the victim was still restrained in the garage, the defendant became concerned about how he could leave before the victim encountered the security guard or the police. There was a conversation of forty-five minutes to an hour during which the defendant pleaded with and threatened the victim in order to get her not to report him. The defendant then asked the woman if she had any money or bank cards. The victim was still afraid at this time. In order to get the defendant out of the car, she told him she would sign her pay check over to him if he would just go and let her be. She signed over the check and gave it to the defendant. He still wouldn't let her leave the car, however, and when she tried to get out, he pulled her back in, causing her to hit her head. He told her not to try to leave again. The defendant and the victim left the garage together with the victim still fearful and under restraint. The defendant drove the car around certain streets and, when he stopped the car, the victim got out of it and screamed at him until he got out of the car. Her check was returned to her by the defendant's trial counsel. At trial, the defendant admitted that he was with the victim the night in question and that he wrongfully retained the payroll check that she endorsed to him for the purpose of cashing it. He denied, however, sexually assaulting or physically injuring her, or using any force or threat of force to obtain or retain the check. He claimed that he met the victim and walked with her to her car in the garage and that she asked him to back her car out because it was in a tight spot. He testified that she wanted money to buy cocaine and, as part of a con game to acquire her check, he agreed to get the check cashed. He claimed that he got out of the victim's car without incident and put the check in his back pocket. He contended that they exchanged phone numbers and he gave her a brief kiss and said he would see her later. The defendant's first claim is that the trial court erred in instructing the jury on General Statutes § 53a-133 (1) which he claims concerns conduct totally distinct from that specified in the statement of essential facts. The defendant concedes that no exception was taken to the charge on this ground. He asserts that this issue is, nevertheless, reviewable under the fundamental rights — fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In support of his claim of reviewability, the defendant asserts that by filing the statement of essential facts, in which it specified that the "defendant forced [the victim] to sign over to him her pay check," the state eliminated the possibility of convicting him on proof that he used or threatened force for the purpose of "[preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking," as prohibited by General Statutes § 53a-133 (1). The defendant argues that the phrase used in the statement of essential facts describes the conduct prohibited by subsection (2) only and, therefore, that the state was limited to proving that he used or threatened force for the purpose of "(2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny," as prohibited by General Statutes § 53a-133 (2). Accordingly, he claims that when the trial court charged the jury using the definition of robbery in § 53a-133 (1), it instructed the jury under a statute with which he was not charged in violation of his due process rights. The defendant's claim, thus presented, does implicate a fundamental constitutional right, and the record is sufficient for us to review the merits of the claim. Accordingly, the next question we must answer is whether there was in fact a deprivation of that constitutional right. See State v. Newton, 8 Conn. App. 528, 534, 513 A.2d 1261 (1986). We conclude that there was not. The defendant's argument amounts to little more than semantic overkill. A common sense analysis illustrates that the two subsections overlap. In the first place, we find it difficult to distinguish the conduct prohibited by the two subsections of § 53a-133. "[Preventing or overcoming resistance to the taking of the property" is at least a first cousin of "compelling the owner of such property . to deliver up the property." Accordingly, while we concede that the language "forced her to sign over to him her pay check" is covered by subsection (2), that does not logically lead to the conclusion that subsection (1) is excluded. On the contrary, the language in the statement of essential facts just as clearly relates to the use or threat of use of force to prevent or overcome resistance to the taking of property as it does to the use of force to compel delivery of the property. Thus, logically, the statement of essential facts charged the defendant under both General Statutes § 53a-133 (1) and (2). In State v. Secore, 194 Conn. 692, 485 A.2d 1280 (1984), our Supreme Court faced a claim similar to that raised here. The defendant had been indicted under subsection (1) of General Statutes (Rev. to 1979) § 53a-70 (a) for sexual assault by the use of force. This indictment was replaced by an information charging the defendant under subsection (2) with sexual assault "by the threat of use of force." The defendant claimed that because these constituted separate offenses, the indictment for one could not be replaced by an information charging the other, but only by a new indictment. Accordingly, the issue before our Supreme Court was whether § 53a-70 (a) describes two separate crimes. The court concluded "that the language of § 53a-70 divides the statute, not into two crimes, but into two methods of committing the same crime; see State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); and that the indictment substitution made by the state . . . involved a matter of form, not substance." Id., 698. The court concluded, therefore, that "both the indictment and the substitute information charge the defendant with only one crime, sexual assault in the first degree;" id.; since compulsion by the use of force and compulsion by the threat of force are simply two methods of committing one offense. In this case, where the two subsections involved are almost indistinguishable, there is no question that the defendant's conviction under either subsection was consistent with the statement of essential facts. Accordingly, we conclude that the defendant was not deprived of his right to due process. The defendant also argues that the combination of the trial court's instruction on General Statutes § 53a-133 (1) and its submission of the information which, contrary to the mandates of Practice Book § 625, did not incorporate the essential facts, deprived him of his fundamental right to due process. He concedes, however, that "had the trial court ultimately provided correct instruction that incorporated the robbery offense as alleged and particularized," the noncompliance with Practice Book § 625 would have been harmless. We have already concluded that the trial court did provide correct instruction as particularized by the statement of essential facts. Accordingly, this claim falls with the first claim on which it is dependent. The defendant's second claim is that because the victim "volunteered" her paycheck, there was insufficient evidence presented that he used force during the course of committing larceny as required to sustain a conviction under General Statutes § 53a-133. Additionally, he contends that there was insufficient evidence that any use of force was for the purpose of committing a larceny. The principles governing appellate review of a claim of error challenging the sufficiency of the evidence to support the jury's verdict are well settled in this state. " ' "[T]he issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . " ' State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 479 (1980), quoting State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980)." State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985). An appellate court addressing an insufficiency claim must construe the evidence presented at the trial in the light most favorable to sustaining the jury's ver diet. State v. Stankowski, supra, 126; State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Under these standards, the defendant's claim of insufficiency of the evidence borders on the frivolous. We will not rehash the overwhelming evidence before the jury that the defendant inflicted a reign of terror on the victim, starting in the Civic Center garage. Both the direct evidence and the reasonable inferences to be drawn therefrom present a compelling picture of intimidation and coercion. The victim was sexually assaulted and restrained for over two hours. She was choked and threatened with death. She was slapped in the face. She was threatened with abduction to New York. Under this blanket of fear, the defendant "gave" her pay check to the defendant. To isolate, as the defendant attempts to, the narrow circumstances of the turning over of the paycheck from the whole factual scenario is totally unrealistic and unsupported by the law. Our Supreme Court has held that while an offender, to commit robbery, must use or threaten force with the purpose of committing a larceny, he need not use or threaten the force at the "precise time" he takes that property. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). The trial court did not err in denying the defendant's motion for judgment of acquittal on this basis. The defendant also claims that there was insufficient evidence that any force or threat of force was used/or the purpose of committing a larceny. "An act may have more than one purpose and more than one effect. Thus a jury reasonably may find that acts which compelled a victim to engage in sexual intercourse also had the purpose of preventing the victim's resistance to the taking of her property." Id., 411. Force is used to prevent resistance to the taking of property or to compel delivery of property "if it induces in the victim a physical disability or a reasonable emotional response that causes her not to resist the taking of her property [or to deliver up the property]." Id. The court did not err in denying the defendant's motion for judgment of acquittal on this ground. The defendant's final claim is that the trial court erred in charging the jury on reasonable doubt. He concedes that he did not properly preserve this issue. He claims, however, that review is warranted under the fundamental rights — fair trial exception of State v. Evans, supra, 70. The defendant's claim does implicate the fundamental constitutional right to be found guilty only on proof beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and the record is sufficient for us to consider the defendant's claim on its merits. Accordingly, we review the claim to see if the defendant was deprived of this right. In instructing the jury on the state's burden of proof, the trial court gave the following definition of reasonable doubt: "And what is a reasonable doubt? A reasonable doubt is not a slight doubt, nor a possible doubt. It is not a surmise, a guess or a conjecture. It doesn't rise from feelings of sympathy or pity for anyone who may be affected by your verdict. A reasonable doubt is one which is based on the evidence and flows naturally from the evidence or lack of evidence. In short, it is doubt which is based on reason. "Now, in this connection it's not necessary for the state to prove the absolute guilt of the defendant or guilt with certainty. However, each element which is essential to establish the defendant's guilt must be proved by facts or circumstances beyond a reasonable doubt." According to the defendant, the language that "it is not necessary for the state to prove the absolute guilt of the defendant or guilt with certainty" substantially reduced the state's burden of proof. He claims that this instruction permitted a finding of guilt on the more probable than not standard. We disagree with this strained interpretation of the court's language. The trial court's charge will not be "critically dissected in a microscopic search for possible error." State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The charge, read as a whole, required the state to prove each element of the crimes charged beyond a reasonable doubt. It instructed the jury to give the evidence the construction which favors innocence where the evidence offered is capable of two reasonable constructions and to equate reasonable doubt with a doubt based on the evidence or lack of evidence. The trial court did not err in so charging. The defendant's reliance on State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983), is misplaced. Our Supreme Court in DelVecchio analyzed a trial court's charge analogizing the state's burden to a football field. The defendant claimed that this illustration lightened the burden of proof in that it implied that more than 50 percent proof was sufficient to convict the defendant. Our Supreme Court found error and concluded that it was reversible error since it was reasonably possible that the jury was misled by the charge. Id., 425. DelVecchio, however, does not support the defendant's claim. In DelVecchio, the Supreme Court did not take issue with language almost identical to that used here: "This does not mean that the state must prove guilt beyond absolute certainty. Absolute cer tainty is not required." State v. DelVecchio, supra, 418 n.5. Accordingly, we conclude that the defendant was not deprived of his fundamental constitutional right to be found guilty only on proof beyond a reasonable doubt. There is no error. In this opinion the other judges concurred. General Statutes § 53a-136 provides in part: "(a) A person is guilty of robbery in the third degree when he commits robbery." Practice Book § 625 provides: "Whenever the information charges the offense only by referring to the statute which is alleged to have been vio lated, the prosecuting authority, upon written request of the defendant, shall as of course amend the information by adding or annexing thereto a statement of the essential facts claimed to constitute the offense charged. Such request shall be made within ten days following arraignment." We note that the defendant did not claim lack of notice of the nature of the charges, nor could he. Without specifically ruling on the interplay between a bill of particulars and a request for essential facts, we note that the function of the bill of particulars in a criminal case is to provide infor mation fairly necessary to enable the accused to understand and prepare his defense against the charges without prejudicial surprise at trial. State v. Coleman, 167 Conn. 260, 269, 355 A.2d 11 (1974); see also, State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). A request for essential facts, too, is related to giving the defendant sufficient notice of the charges in question. The defendant, of course, enjoys a constitutional right to such notice. State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986). In State v. Roque, supra, however, our Supreme Court stated that " ' "if the state's pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty." State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979);' State v. Ballas, [180 Conn. 662, 664, 433 A.2d 989 (1980)]." Here, these requirements were fully met by the information and the statement of essential facts. The trial court in State v. DelVecchio, 191 Conn. 412, 417-18, 464 A.2d 813 (1983), perhaps recovering from a weekend of television football, used the following language: " 'Reasonable doubt is not guilt beyond any doubt. You don't have to go a hundred yards for a guilty finding. You got to go somewhere, I suppose, beyond the fifty yard line; where it is in there is up to you to decide.' "

Bieluch, J. The defendant was convicted by a jury of the crimes of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2), carrying a pistol without a permit, in violation of General Statutes § 29-35, and stealing a firearm, in violation of General Statutes § 53a-212 (a). On appeal from the judgment rendered, the defendant raises two claims of error. We find no error. The jury could reasonably have found the following facts: In the midafternoon of September 29,1982, the defendant met with Danny Hayward and Jessie Hardy at the latter's home. At the defendant's suggestion, the three men engaged in a dice game for money. They gambled for about two hours, during which time the defendant lost all of the money that he had with him, approximately two or three hundred dollars. After the game ended, the defendant left the premises, but returned later to reclaim his money, alleging that the dice used in play were "fixed." Hardy denied the allegation and refused to refund the defendant's money. Later that afternoon, the defendant encountered Hayward and Hardy at a nearby fish market. Words were exchanged, but no physical altercation took place. Shortly thereafter, the defendant accosted the other two in back of the shopping plaza. At that confrontation, he snatched some money from the hand of Hayward, tearing a five dollar bill in half in the process. This was done after he pointed a loaded and operable .45 caliber revolver at him. After picking up the portion of the money that fell to the ground, the defendant rode off on his bicycle to a friend's apartment, where he was arrested a short while later after being identified by the two victims. A police search of the area of the arrest uncovered the loaded weapon under a bed. The gun matched the description of the weapon used in the robbery given by the two complainants. After the defendant was arrested, he was taken to the police station where he gave a statement indicating that he took the money because Hayward and his brother owed him $66. The gun, he claimed, had been purchased a day or two before from an unidentified person for $50 and was not displayed or used in a robbery or threat against Hayward and Hardy. In his testimony, he stated that "I had [the gun] in my pants, but I didn't pull it out. . . . Never pulled it out." After the jury returned its verdict of guilty to the three charges, the trial court sentenced the defendant to a total effective term of twelve years, execution to be suspended after nine years, with three years probation thereafter. The defendant appeals from that judgment, claiming that the trial court erred (1) in refusing to instruct the jury as to the use of physical force in defense of property as set forth in General Statutes § 53a-21, and (2) in failing to give the requested charge relating to justification as a defense in the language of § 53a-21. These assignments of error, in substance, are related, being two sides of the same coin. The defendant requested the following charge: "Our statutes provide that '[a] person is justified in using reasonable physical force upon another person . . . when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force . . . . Therefore, if you conclude that Mr. Woolf oik reasonably believed that his money had been acquired by Mr. Hayward by larceny then you must find the defendant not guilty of Robbery 1st. Remember it is not necessary for Mr. Woolf oik to prove that, in fact, his money was taken by Mr. Hayward by larceny. All that is necessary is for Mr. Woolfolk to reasonably believe that his money had been acquired by Mr. Hayward by larceny (e.g. through the use of 'fixed dice')." In its charge to the jury, the court described the various elements of the crime of robbery in the first degree and explained the burden of proof that was required of the state to establish all of those elements beyond a reasonable doubt for a con viction. The defendant took an exception to the court's failure to give his requested charge on the applicability of General Statutes § 53a-21, which he then called an "affirmative defense." General Statutes § 53a-12 provides: "(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt, (b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence." In this appeal, the defendant now maintains that the "[u]se of physical force in defense of property [in accordance with § 53a-21] is not an affirmative defense under Connecticut General Statutes." Instead, he claims, it may be asserted as a defense by way of justification pursuant to General Statutes § 53a-16, which provides in part that "justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense" in any prosecution for an offense. The state, on the other hand, maintains on appeal that "a given affirmative defense is legally available and an affirmative defense charge therefore required only when the defendant has introduced a quantum of evidence sufficient, in the trial court's reasoned judgment, to warrant giving the instruction." Such a measure of evidence, the state claims, the defendant did not produce at trial. Therefore, the prosecution was not obligated to prove the nonexistence of an affirmative defense which is legally unavailable to the defendant. For that reason also, the state maintains, the court properly excluded the defendant's request to charge, since it was not obligated to charge on a theory of defense not supported by the evidence. The defendant's designation at trial, and the plaintiff's description on this appeal, of justification under § 53a-21 as an "affirmative defense" are erroneous. The dispositive issue before this court is the defendant's entitlement at trial to a theory of defense charge. A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). The identification of a defense as an affirmative defense is relevant to the burden of proof in establishing such defense. The defendant has the burden of proving an affirmative defense by a preponderance of the evidence, while all other defenses must be disproven by the prosecution beyond a reasonable doubt. General Statutes § 53a-12. This is so because an affirmative defense does not serve to negate an element of the crime which the state must prove in order to convict, but constitutes a separate issue or circumstance on which the defendant is required to carry the burden of persuasion. State v. Wilkinson, 176 Conn. 451, 464, 408 A.2d 232 (1979). General Statutes § 53a-16 provides that "[i]n any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense." Justification under these statutes, and in particular as claimed here under § 53a-21, is not an affirmative defense. The "lack of justification is an element of a criminal prosecution on which the state bears the burden of proof." State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982). The precise question before us is therefore independent of the issue of burden of proof of a defense at trial, the determination of which is controlled by § 53a-12 in accordance with the classification of a defense as affirmative or nonaffirmative in nature. We have before us the resolution of whether the defendant was entitled to a theory of defense charge predicated upon his use of physical force in defense of property under § 53a-21. Narrowed down, the issue is whether that defense was made at trial, for under § 53a-12 all defenses, affirmative and nonaffirmative, must be "raised at a trial." Our Supreme Court recently ruled on a defendant's entitlement to a theory of defense charge as follows: "We have held that when a defendant 'admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.' State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). . . . [T]he defendant's claim of an innocent intent, if accepted by the jury, would negate an essential element of the crime and mandate a verdict of not guilty. This defense is intrinsically factual, however, and not of the type which we have held to require a distinct instruction as part of the trial court's charge. A general 'claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge.' State v. Rosado, supra. A theory of defense instruction is appropriate, upon proper request; State v. Preyer, [supra]; only when evidence supporting a 'legally recognized defense' is placed before the jury. State v. Cassino, [supra, 243]; State v. Rosado, supra; see State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983)." State v. Silveira, 198 Conn. 454, 461-62, 503 A.2d 599 (1986). In the first count, the defendant was accused of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2). The portion of the penal code pertinent here provides: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime . . . he . . . is armed with a deadly weapon . . . . " The weapon need not be "exhibited, displayed, utilized or referred to in order for one to be considered 'armed' " within the requirements of § 53a-134 (a) (2) for a conviction of robbery in the first degree. State v. Anderson, 178 Conn. 287, 294, 422 A.2d 323 (1979). The defendant's defense of justification expressed in his requested charge is predicated upon that portion of General Statutes § 53a-21 which provides: "A person is justified in using reasonable physical force upon another person . . . when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force . . . . " Because the defendant's claim is not a "legally recognized defense" under our law to a charge of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), the trial court did not err in denying his request to charge. The justification defense allowed under General Statutes § 53a-21 is expressly limited to the use of reasonable physical force in the defense of property. By its limiting proviso, excluded from the defendant's request to charge, one "may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19." Under General Statutes § 53a-3 (5), " '[djeadly physical force' means physical force which can be reasonably expected to cause death or serious physical injury." The defendant's claimed defense, predicated only upon that portion of § 53a-21 which allows reasonable physical force in defense of property, is inapplicable to the charge of robbery while armed with a deadly weapon because of the further provision of the statute not referenced in his requested charge, but which applies to the offense of robbery while armed with a deadly weapon and precludes the use of deadly physical force in the defense or retrieval of personal prop erty. In substance, the defendant's alleged defense constitutes a denial that the admitted robbery was committed by him while armed with a deadly weapon, an element of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) which the prosecution had to prove for a conviction on that charge. A review of the evidence at trial claimed by the defendant to support his theory of defense, when viewed in the light most favorable to him, fails to establish any foundation for a legally recognized defense to his admitted robbery while carrying on his person a revolver fully loaded with live bullets. The defendant testified as follows: Two acquaintances of long standing, Jessie Hardy and Danny Hayward, invited him to play dice for money with their dice at Hardy's home. At first Hardy and Hayward were losing to the defendant, who then offered to quit playing, but the other two talked him into continuing to gamble. When the defendant lost about one hundred dollars, he went home and got some more money. Eventually, he lost between $200 and $300, when the other two quit playing. Hardy's brother then told the defendant that they had played with trick dice, although the defendant had seen nothing wrong with them while throwing the dice. He claimed, however, that the other two had let him roll the dice more times than they had rolled. His demand that they return his money was refused. He then left. The defendant next went to a friend's house to get his gun. This was a revolver fully loaded with live bullets. With this on his person, the defendant returned to the Hardy home to ask again that his lost money be returned to him. Hayward repeated that he could not get his money back and shut the door on him. After waiting there for about one half hour, the defendant left and went to a nearby fish market to buy some fish. Before leaving the fish market after his purchase, Hardy and Hayward came in and asked the defendant if he was looking for them. The defendant backed away from them and said he would not fight them. Hardy and Hayward then left. When they turned the corner, the defendant told the salesgirl that he would be back and that he "was going to get my money from them." The defendant then followed the other two to the back of Dixwell Plaza, where they stopped when he hailed them. After getting off his bicycle, he asked for the return of his money. They refused him. At that, he "snatched" whatever money Hayward had in his hand. When he saw that a five dollar bill was left, he "snatched the five and the five dollars ripped. Half of it fell on the ground. I just picked it up, got on my bike and left." Before he left, "they told me [Hayward] got the rest of the money at his house, come and get it. I said, next time I see you, you better have it." He remained on the avenue until the police arrived and he saw Hardy and Hayward go to the patrol car. The loaded gun was in the defendant's pants. He never pulled it out, but he had zipped down his jacket and did not know whether Hardy and Hayward had seen the gun. He admitted, however, that they probably saw the bulge made by the gun and that they knew he possessed the gun because they had seen it a day or two before when he had shown it to others. The defendant's evidence concluded with his testimony that he was happy "because I had a gun and I wanted to use it for protection. Anybody try to get something through me, I would show them my gun." We conclude that neither the affirmative testimony of the defendant, nor the evidence brought out on cross-examination of the prosecution's witnesses, together with any reasonable inferences drawn from their direct testimony, support a legally recognized defense to the first count of robbery while armed with a deadly weapon in violation of General Statutes § 53a-134 (a) (2). Whether the defendant argued his theory of defense to the jury without objection we are unable to determine from the record before us. There is no transcript of counsel's argument. We, therefore, do not consider whether such an argument would require the trial court to give the jury relevant instructions pertaining to the theory of defense. The Model Penal Code § 3.02 (1) (a) provides that conduct which would otherwise constitute a criminal offense may be legally excused or justified, provided that "the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged." This provision was not adopted in the enactment of our penal code in 1969. See Public Acts 1969, No. 828. Under § 53a-21, one is justified in using only reasonable physical force upon another person in defense of property. In the present case, the defendant seeks to justify the commission of robbery in the first degree, while armed with a deadly weapon, in violation of General Statutes § 53a-134 (a) (2), a class B felony, by claiming that it was necessary to prevent what is illustrated by the facts then to have been no more than a larceny in the third degree, a class B misdemeanor. See General Statutes (Rev. to 1981) § 53a-124. This he cannot do. A person is not reasonably justified as a matter of law in committing armed robbery in order to prevent the commission of a minor larceny. The theory of defense requested by the defendant was legally inadequate to justify the commission of the felony as charged. The trial court did not err in refusing to charge on the theory of defense of justification as requested. There is no error. In this opinion the other judges concurred. General Statutes § 53a-21 provides further: "but he may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19." Under General Statutes § 53a-3 (5), " 'deadly physical force' means physical force which can be reasonably expected to cause death or serious physical injury."

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

McEVOY, J. This is the third in a series of actions between these litigants. The present defendant was the plaintiff in the first action and in the second action. In each of the first and second actions the issues were found in favor of the then plaintiff and damages were awarded to the then plaintiff—the present defendant—against the then defendant—the present plaintiff. Since the termination of the first and second actions the present plaintiff has expended a large sum of money in constructing a drain which it was then thought, by this plaintiff, would be ample to carry off the surface water in an easterly direction. The easterly drain does not carry off all of the surplus water. During an unusual rainstorm some of the surplus water spreads out over the land of the defendant and floods the defendant's land as well as the main highway which runs in an easterly and westerly direction south of the land of the defendant. Upon the trial evidence was offered on behalf of the plaintiff tending to show that the flooding was caused by materials and silt deposited in the ditch which runs northerly across the land of the defendant. Upon the supposed completion of the presentation of the evidence an investigation was made by the plaintiff and it disclosed that the 18-inch pipe installed by the plaintiff under the cement highway from south to north had become and was clogged and that it was almost entirely closed because cement blocks had become dislodged from their support in the tentative roof of the sluice and were wedged in the sluice. The inevitable result was to prevent a great bulk of the water which should have run through thr sluice from finding its way through so that it backed toward its entry and flooded the road and then found its way across-the cement roadway so that it spread out first, in part, over land westerly of and lower than the land of the defendant and then across the defendant's land. This situation demonstrated.' the inaccuracy of the claim that the flooding was caused by the defendant's conduct with reference to the ditch because the flooding water spread out not only over the surface of the ditch but also over the surface of the land westerly and easterly of it. In this connection evidence was offered on behalf of the-plaintiff tending to show that the original level of the ditch, which is upon the land of the defendant, was below the northerly end of the 18-inch sluice pipe which was installed from south to north under the highway by the plaintiff. Evidence to the contrary was presented on behalf of the defendant. Upon this conflict of evidence, after a view of the premises made by the trial judge in company with and at the request of both counsel of record, it is found that the original base or level of the ditch was the same as its present level—or substantially the same—because, due to the intermittent rush of water occasioned by unusual rain various materials are carried through and on to the bed of this ditch and some of this remained there. It is also found that the plaintiff installed the 18-inch cement sluice pipe in such manner that the top of its north end was below the then existing level of the bed of the ditch or brook. Obviously the natural result of the contact of the onrushing water from the south to the north as it exuded near tidewater sluice would be to alter the level or depth of the ditch or brook. This, action would, naturally, tend to create "berm" or deposit of silt or other material, upon the creation and exist ence of which the plaintiff seemed to place great reliance in this trial. On the defendant's motion further evidence was presented. From this evidence it appeared that the flooding was caused by the neglect of the plaintiff and that the defendant was without fault in this respect and it was stated by the plaintiff's counsel that "it is obvious that was neglect on the part of the highway department for not having discovered that condition." Plaintiff's counsel of record then offered to withdraw the action and to pay to the defendant a reasonable sum to cover the expense to which the defendant had been put by reason of the institution of this action. The defendant, then, by permission of the court, filed an amended counterclaim which not only alleged items of consequential damage but also in its paragraphs 20, 21 and 22 set out allegations of vexatious suit. As a basis for recovery under the claimed vexatious suit the defendant offered evidence that a representative of the plaintiff had stated that the present action was instituted by this plaintiff against the defendant substantially as a reprisal against the defendant because this defendant had previously instituted and prevailed in the first and second actions against the then defendant—the present plaintiff. The only evidence in the record as to the vexatious character of the suit is found in the statement which the plaintiff's representative did make during the present proceedings and after the main part of the evidence had been presented. Viewed in its aspect most favorable to the defendant, this statement is, at best, an opinion expressed upon his own in-itiative and responsibility by the representative of the plaintiff. It does not appear that the representative was either impliedly or expressly authorised by the plaintiff to make the statement, nor does it appear that the plaintiff had any knowledge of the intention of the representative to make it. It does not appear that the plaintiff entertained such alleged intention before the institution of this action nor that he now entertains it. Under these circumstances there may be no recovery by the defendant against the plaintiff upon the theory of vexatious-suit. In his complaint as amended the plaintiff pleaded inconsistently, as he had a right to do, that the defendant had caused the alleged damage to the plaintiff by digging ditches and by inot digging ditches. Neither allegation is found to be proven. The truth is that the defendant has made every reasonable effort to clean the ditch and to keep it clean. In addition, prior to the institu' tion of this action, the defendant offered to permit the plain' tiff to go upon his land to make an improvement by installing a pipe of at least 30 inches in diameter northerly along the line of the present ditch. In response to this suggestion the •plaintiff then proposed to the defendant that the plaintiff be •permitted to increase the width of the ditch from its present width to a width of about nine feet but with a very shallow and outwardly expanding base. The net result of this plan would have been to accumulate sewage and fetid matter in the ditch in times of flood which would have engendered an accumulation of filth with the resulting odors in dry weather. 'This would have resulted in a situation definitely detrimental and injurious to the defendant and to his property. As a counter offer the defendant reasonably proposed that the plaintiff install a pipe of at least 30 inches in diameter at a 'lower depth than the present ditch or drain with a northerly decline in its level. This would give reasonable assurance of •proper drainage of the accumulated water from the land south' erly of the highway and from the highway itself—assuming that the sluiceway under the highway would be properly kept open by the plaintiff and not neglected as it formerly had been. Upon a view of the premises made by the trial judge at the request of both parties and in their company, and after a careful consideration of all of the evidence, arguments and briefs, it would seem that the carrying out of the proposed plan would solve the difficulty, prevent further damage to the highway and to the defendant's property and—equally important—that it might tend to end this protracted litigation. '"Interest reipublicae ut sit finis litium." It would seem reasonable to believe that a pipe of sufficient proportions, laid with a proper degree of declination, into a •receptive outlet northerly along the land of the defendant and on the site of the existing ditch would relieve the highway from floods, carry off the surplus water so that it would not flood the highway and, at the same time, reasonably prevent further damage to the property of the defendant from stag' :nant water, sewage and the resulting odors. Last, but not least, it might and possibly would bring peace to these litigants and to their neighbors. The issues are found in favor of the defendant upon the plaintiff's complaint, as amended, and upon the defendant's counterclaim—except as to paragraphs 20, 21, 22 of the counterclaim. Upon the original counterclaim as thus limited judgment may be entered in favor of the defendant to recover of the plaintiff $750.00 damages and his costs.

CORNELL, J. Paragraph 3 of the motion recites that "there are outstanding obligations of the administration of the receivership for rent, wages, receiver's fees, accountant's fees, etc., and other miscellaneous items." Presumably these are liabilities of the receiver incurred pursuant to the orders of this Court or a judge thereof. Hence, in a certain sense they are items incurred on the faith and honor of this Court. The motion does not say that they are released or that payment of them by this Court's, receiver is waived. On the contrary, the' implication is that the assets of the receivership be discharged from the possession and control of the Court without any provision for the payment of expenses which arose while such assets were legally under administration here. While there can be little doubt of the duty of this Court to order the delivery and control of such assets to a trustee in bankruptcy duly and properly appointed, it is quite another matter to say that it should not retain sufficient of said assets to insure that obligations incurred by it through the instrumentality of its own receiver in protecting and administering such assets prior to the appointment of a trustee in bankruptcy should not be kept for the purpose of and insofar as may be necessary to discharge such obligations. In the absence of any statement in the motion bearing upon this phase of the matter and without prejudice to the filing of another motion containing the necessary information, the instant application is denied.

WYNNE, J. It was frankly conceded by plaintiff's attorney that there was only one possible act of negligence shown. On the claim that the defendant failed to keep a proper lookout, the case was presented and argued. The court is convinced that the defendant was not negligent. On the contrary, the circumstances would indicate that he was driving with care. The very fact that he saw a traffic officer right there is of great significance. The fact that his car was stopped quickly also shows the manner in which he drove. It is quite probable that a momentary glance at the officer was the fleeting distraction that prevented his seeing the little boy dart in front of him. This could not be said to be negligence. There was absolutely nothing in the situation to put him on notice that there might be a child in the street. It is not at all improbable that a younger, more alert driver would have avoided the accident, but the court must take Mr. Wilcox as he is, and test his conduct by the standard of due care. He meets that standard. There is a wide difference in the skill of drivers. The law, however, recognises no distinction, between them as to relative ability but is concerned only with compensating persons injured through the negligence of others. Judgment is entered for the defendant to recover his costs.

Memorandum in action for divorce. O'SULLIVAN, J. This action seeking a decree of divorce was instituted on February 18, 1942, a date subsequent to that on which a state of war was declared to exist between the Kingdom of Italy and the United States of America. The defendant is described as "formerly of the City of Genoa, Country of Italy, Europe, now of parts unknown." But it is reasonable to believe that she still remains in Italy. Two orders were issued whereby notice of the pendency of the action was published in a Bridgeport newspaper on February 19, 20 and 21, and on April 14. The purpose of an order of notice is to give a defendant a reasonable opportunity to learn of the pendency of an action in which his or her jural rights may be affected. In view of the state of war, any notice such as those given in the present case cannot be deemed reasonable. The service of notice by publication in this country was in fact a nullity, where the defendant, as in this case, is both physically unable to enter this country or communicate by letter or otherwise with an attorney and prohibited by the laws of war from so doing. Dean vs. Nelson, 10 Wall. 158. In a number of cases arising during the last war, it has been held that no proceedings should be had in any such action, except such as may be necessary to preserve the security and rights of the parties in statu quo, until by reason of the restoration of peace it again becomes possible for the defendant adequately to present his defense. Watts, Watts & Co. vs. Unione Austriaca di Navigazione, 248 U.S. 9; City Nat. Bank. of Selma vs. Dresdner Bank of Bremen, 255 Fed. 225; Matter of Henrichs, 180 Cal. 175, 179 Pac. 883. See, also, Anno. 3 A.L.R. 327. Under the circumstances, the hearing must result in a mistrial. While I shall pass no order as to the following effect, it seems to me that the action should remain dormant until peace with Italy is declared, at which time an order of notice should be requested which will give the defendant a more reasonable opportunity to learn of the pendency of this action than resulted from the orders heretofore given.

BALDWIN, J. The defendant, late in 1936 and early in 1937, erected a large building which is known as its Com' munity Building, at a cost to it of approximately $126,000 upon land owned by the defendant lying adjacent to and easterly of the plaintiff's land upon which plaintiff with his farm ily lives. The church parish includes upwards of five thousand peo' pie of whom approximately three thousand are of the age of eighteen years or over. It also maintains a school having eight hundred and seventeen registered pupils, its school building having thirteen rooms. These buildings, the church, school house and community building, are all located upon a tract of land in Meriden owned by the defendant and they are in fairly close proximity to each other. The plaintiff has brought an action in two counts against this defendant. In the first count he alleges that the erection and maintenance of the community building has so changed the grade of defendant's land as to cause large quantities of rain water to collect and be discharged upon his land, and that during the erection of the building large quantities of rain water were collected upon the roof of the building and dis' charged upon his land and that this water washed out his yard and plants and shrubs therein and his driveway and that quantities of this water ran into his cellar, destroying things therein,......rendering his house damp and causing the floors to buckle and become uneven and affecting his health and that of his family and causing discomfort and inconvenience. In the second count it is alleged that the defendant has used this building for roller skating and dancing and has, maintained a bowling alley and a place where beer is sold therein and that the noise emanating therefrom is great and. continues late at night and constitutes a nuisance and has disturbed his sleep and that of his family and has injured them-mentally and physically. In an amendment to the complaint it is alleged that this building was erected and is maintained in violation of the zoning ordinances of the city. Plaintiff claims damages and1 injunctive relief. It appeared upon the trial that roller skating and the sale of beer therein was no longer, and for sometime prior to the-, trial, had not been permitted therein. Prior to the erection of the building an application to the. Board of Building Commissioners was duly made of which plaintiff had notice and of the uses and purposes to be made, of the building, yet he made no protest whatever to that board, nor did he take the matter to the board of appeals. The building includes on the lower floor a gymnasium and its heating plant; on the second floor along the westerly side are club rooms for young men and boys and a room where some refreshments are sold, and on the easterly side are girls' club rooms and on either side are shower baths, one side for men and boys and the other side for women. Between this, arrangement of rooms—through the center of the building, on this floor, are the bowling alleys. Upon the third floor is a. large auditorium with a stage and dressing accommodations. There are no sleeping rooms. The building is used for social, recreational and educational, purposes by members of the parish and their families as incident and accessory to the church and educational work of the parish. It also serves the public at large since any person, of good morals and character residing in Meriden upon payment of the nominal sum of six dollars a year may avail himself of its social and club characteristics and comforts and conveniences. It comes well within the permissive uses of a building located in a General Residence District, in which it is located, under the Zoning Ordinances of Meriden. The. 'building is not maintained and operated for commercial gain. 'The charges made for its uses are designed to meet only maintenance and operating expenses. It is a project most desirable in the community the welfare of which, in accord with the .aims and desires of the parish, it serves. The burden of the controversy upon the trial involved the injuries and damages resulting from the collecting and discharging of rain water from plaintiff's land and the noise and disturbance resulting from the use of the bowling alleys and the playing of basketball and the dancing and the collection of people for those purposes and their coming to and going .away from the building. The disturbance, if any, resulting from aggregations of people coming to or leaving the building or gathering about it or in that vicinity is a matter of police surveillance in a city like 'Meriden. Upon the conclusion of the trial, with the counsel, the 'Court viewed the properties of the parties. As before noted, plaintiff's lot upon which his house stands is westerly of the defendant's land upon which its community building stands. The defendant's land and building is high over plaintiff's land, so high that the lower floor of the community building is about on a level with the roof of plaintiff's house, and this 'house is forty feet from defendant's building. Plaintiff claimed that before the erection of defendant's building his house had not suffered from dampness and that his cellar was always dry. This claim was substantially contradicted by reliable evidence that on several occasions before the erection of this building water in quantity was in plaintiff's cellar and that measures had been taken to drain it from the cellar. His claim as to damages to his yard and the plants and shrubs and driveway and the floors in his house were grossly exaggerated. The natural slope of the land before building operations were commenced was such that surface water, to some extent, from defendant's land, would find its way onto the plaintiff's land. During building operations the work was carried on under such methods that rain water collected upon the roof could not reach plaintiff's land, nor cause that or his house damage. The size of this building—eighty by one hundred feet—is so large, occupying so much of the defendant's land .adjoining that of the plaintiff and the ample means provided for collecting and conveying the rain water that may fall thereon to a city storm sewer and the grading done by defend' ant actually results in reducing the quantity of surface water that may accumulate upon defendant's land and reach that of the plaintiff as compared with the conditions existing before the advent of the building. The building is of substantial construction, its outer walls being of brick and of substantial thickness. Between the outer walls along the sides of the building and the central space on the second floor where the bowling alleys are located is the series of rooms before described. These rooms are divided from that space occupied by the bowling alleys by partitions. These partitions, rooms and heavy outer brick walls serve to effectively reduce the noise from the bowling that reaches the outside and to confine it to the interior of the building. The claimed noise resulting from dancing, bas' ketball and bowling is neither in the extent of its volume nor duration in point of time sufficient to constitute a nuisance. The claim of disturbance resulting from these conditions close' ly approaches in exaggeration plaintiff's claim of damages resulting from rain water, and like that claim is effectively met by the defense. There is, necessarily, some noise resulting from the CO' mingling of people for social and recreational pursuits. These events, and such noise and disturbance as result therefrom, are incident to life in our centers of population. Here they are well confined within the bounds of reason and are not such as will justify the Court in awarding damages or in restraining this defendant from carrying on the beneficial com' munity work it is doing by laying upon it the heavy hand of the injunction. Judgment may be entered for the defendant.

CORNELL, J. The complaint is in three counts, the right to recover in each of which predicates upon an alleged written agreement annexed to the complaint. The latter purports to be between the defendant Town of Ansonia, therein desig' nated as the "owner" and the plaintiff, "architect and Vernon Sears, Associate, hereinafter called the 'Architect'." The complaint, however, states that the defendant "employed the plaintiff as architect" etc., and says nothing about his being engaged as "Architect" as that term is employed in the agreement referred to, i.e., as connoting both the plaintiff and Sears. This may be suggestive of a variance, or it may not, but in any event, the Court cannot assume, whatever confusion may be suggested by reading the complaint together with the written agreement, that "architect" as used in the complaint is "Architect" as employed in the contract. The difference be* tween the two is the distinction between the exercise of a sev' eral and that of a joint right. In a test of the sufficiency of a cause stated in a complaint, it is not the writing annexed to it and incorporated in it by reference, which is alone to be considered but also the allegation of the complaint itself. Riverside Coal Co. vs. American Coal Co., 107 Conn. 40, 45. This done in the present instant, it becomes apparent that whatever other infirmities, if any, the pleading may have, it cannot be said with certainty that the plaintiff is intent upon enforcing any liability which may arise from an undertaking on defend' ant's part with plaintiff and Sears. Demurrer overruled.

Heiman, J. The plaintiff appeals from the decision of the compensation review board of the workers' compensation commission dismissing her appeal to that board. On appeal to this court, the plaintiff claims that the review board improperly determined that her appeal was jurisdictionally defective because it was not timely filed pursuant to General Statutes § 31-301 (a). The following facts are relevant to this appeal. The plaintiff was injured on October 22,1985, in the course of her employment by the defendant Hartford Hospital as a maintenance worker. The plaintiff sought workers' compensation benefits from her employer for her injury. On December 17,1987, the plaintiff entered into a voluntary agreement with the hospital and its insurer, the defendant Aetna Casualty and Surety. Pursuant to that agreement, the plaintiff was awarded specific compensation in the form of permanent partial disability payments based on a finding of 15 percent disability of her back. Upon completion of payment of the specific award, the plaintiff requested compensation in the form of temporary total benefits under General Statutes § 31-307, claiming that she was totally incapacitated. On May 17, 1990, the defendants filed a "Form 36" notice of intention to discontinue payments, claiming that the plaintiff was no longer entitled to compensation and denying the plaintiff's claim for temporary total benefits. For mal hearings were held before the commissioner of the first compensation district on June 11, 1990, November 30,1990, and April 29, 1991. The commissioner's finding and order, dated July 15,1991, concluded that the plaintiff was no longer entitled to § 31-307 benefits. On July 31, 1991, the plaintiff filed an appeal to the compensation review board, claiming, inter alia, that the commissioner had failed to consider the plaintiff's limited education and diligent efforts at finding employment in his determination that she was no longer entitled to benefits. The defendants moved to dismiss the appeal on jurisdictional grounds, claiming that it was filed more than ten days after the entry of the commissioner's decision on July 15,1991. In its opposition to the defendants' motion to dismiss, the plaintiff claimed that her appeal was timely, in that it was filed within ten days of the date on which notice of the decision was received. The board found that the plaintiff received notice of the commissioner's decision on July 23, 1991. The compensation review board's ruling of September 14, 1993, dismissed the plaintiff's appeal as untimely. In its decision, the review board determined that the ten day limitation period of General Statutes § 31-301 (a) begins to run from the date of the entry of the decision by the commissioner, as long as notice of the decision is received by the party seeking to appeal within the ten day period. The board further found that the appeal period is extended only if notice of the decision is not received within ten days of the entry of the commissioner's decision. On appeal to this court, the plaintiff claims that the compensation review board improperly dismissed her appeal to that board as untimely. We agree. " 'In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result . A statute . . . should not be interpreted to thwart its purpose.' (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, [217 Conn. 110, 126-27, 584 A.2d 1172 (1991)]." Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993). It has long been established that the most reasonable interpretation of the limitation provision applicable to appeals to the compensation review board is one that takes into consideration notice to the party aggrieved by the commissioner's decision. Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926). In Murphy, our Supreme Court considered the ten day limitation period of General Statutes (1918 Rev.) § 5366, as amended by Public Acts 1919, c. 142, § 14, the predecessor to General Statutes § 31-301. The court concluded that "[undoubtedly the General Assembly intended this provision to mean ten days after notice to the party of the entry of such finding . . . ." (Emphasis added.) Murphy v. Elms Hotel, supra, 352. As recently as 1992, our Supreme Court stated: "Although [General Statutes § 31-301] specifies that an appeal should be taken 'within ten days after entry' of a commissioner's award, we have interpreted this statutory requirement to include a requirement of notice to the party who might wish to appeal. Murphy v. Elms Hotel, [supra, 104 Conn. 352]. Fundamental rights to procedural due process mandate such a construction. See Kron v. Thelen, 178 Conn. 189, 193-97, 423 A.2d 857 (1979)." Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 743, 601 A.2d 515 (1992). " '[T]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exer cise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appeal-able issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.' Hubbard v. Planning Commission, 151 Conn. 269, 271-72, 196 A.2d 760 (1964); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 8, 363 A.2d 1386 (1975) (Bogdanski, J., dissenting); see Akin v. Norwalk, 163 Conn. 68, 73, 301 A.2d 258 (1972); Foran v. Zoning Board of Appeals, 158 Conn. 331, 336, 260 A.2d 609 (1969)." Kroner. Thelen, supra, 178 Conn. 193. "Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses." Id. Our courts have, therefore, interpreted appeal provisions such as General Statutes § 31-301 (a) to require notice to the parties affected by a decision, even when a statute does not specifically provide for such a requirement. See, e.g., Kron v. Thelen, supra, 178 Conn. 197. In addition, notice that comports with the constitutional requirements of due process has been deemed to be the date on which notice of the appealable decision is given to the party who might want to appeal. See id., 197 n.3 (holding that appeal period for probate decisions commences on date that Probate Court sends notice); Hubbard v. Planning Commission, supra, 151 Conn. 269 (holding that appeal period for zoning decisions commences on date of publication of notice of commission's decision). "In order to effectuate the right of appeal, it is necessary that the appeal period commence at the time when the commission gives notice of its decision to persons entitled thereto, not when the decision is obscurely filed with a mass of other docu ments at the commission's office." Norwich Land Co. v. Public Utilities Commission, supra, 170 Conn. 9. In Trinkley v. Ella Grasso Regional Center, supra, 220 Conn. 739, the provision at issue in this case was considered. Our Supreme Court implied that the operative date from which the limitation period for appeals to the compensation review board should run is the date that notice is given to the party who might want to appeal. Id., 743. In Trinkley, the court declined to hold that the compensation review board lacked jurisdiction to hear the appeal, stating that "[t]o establish that the . . . appeal was untimely . . . [one] cannot rely on the date when the workers' compensation commissioner made his award. The record contains no finding about when notice of this award was given to the [appellant]. In the absence of such a finding, we decline to hold that the compensation review division lacked jurisdiction to hear the . . . appeal." Id. We follow the direction taken by the Supreme Court in Trinkley, and conclude that the proper interpretation of the limitation period contained in General Statutes § 31-301 (a) is that the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner's decision. Trinkley v. Ella Grasso Regional Center, supra 220 Conn. 743; see also Kron v. Thelen, supra, 178 Conn. 197 n.3; Hubbard v. Planning Commission, supra, 151 Conn. 272-73. We decline to adopt the plaintiff's position that the appeal period commences when notice of the appealable decision is received. Such a holding would create undue delay and difficulties in proving receipt by the party wanting to appeal. See Hubbard v. Planning Commission, supra, 151 Conn. 272. Implementation and application of our holding relies, rather, on the records of the commission as to when notice is sent. Nor do we agree with the compensation review board that the ten day appeal period in General Statutes § 31-301 (a) is tolled only if notice to the party wanting to appeal is received later than ten days from the date of the decision. Such a holding would create absurd results. According to the review board, a party receiving notice of a decision nine days after its entry has only one day in which to appeal, while a party receiving notice on the eleventh day has ten days in which to appeal. We find such a rule inconsistent and unreasonable. "Such a bizarre result could not have been intended by the legislature. 'The law favors a rational statutory construction and we presume that the legislature intended a sensible result.' " State v. Jiminez, 228 Conn. 335, 341, 636 A.2d 782 (1994). The compensation review board must, therefore, determine the date on which notice of the commissioner's decision was sent to the parties to assess properly whether the plaintiff's appeal was timely. See Trinkley v. Ella Grosso Regional Center, supra, 220 Conn. 743; see also Kron v. Thelen, supra, 178 Conn. 197 n.3; Hubbard v. Planning Commission, supra, 151 Conn. 272-73. The decision of the compensation review board is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. General Statutes § 31-301b provides: "Any party aggrieved by the decision of the compensation review board upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review board to the appellate court." General Statutes § 31-301 (a) provides in pertinent part: "At any time within ten days after entry of such award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the compensation review board . . . ." General Statutes § 31-307 provides in pertinent part: "(a) If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation . . . and the compensation shall not continue longer than the period of total incapacity." General Statutes § 31-296 provides in pertinent part that "[b]efore discontinuing or reducing payment on account of total or partial incapacity under [a voluntary] agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner."

Katz, J. The principal issue in this appeal is whether the defendants, detectives Robert Rioux and Gerald Myers of the East Hartford police department, are entitled to qualified immunity as a matter of law and, therefore, are immune from the common law malicious prosecution claims and federal civil rights claim brought by the plaintiff, Arthur Mulligan, the director of the East Hartford department of public works. After the jury found in favor of the plaintiff on each claim and the trial court accepted the verdict, the defendants filed a motion to set aside the verdict and for judgment notwithstanding the verdict. The trial court granted the defendants' motion, the plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court. The following facts are undisputed. The plaintiff was employed as the director of the department of public works for the town of East Hartford (department) from 1968 until November 1,1985. On two occasions in 1985, the plaintiff was arrested pursuant to warrants prepared by the defendants on charges stemming from the department's lubrication services contract with Automatic Lubrication Service, Inc. (Automatic Lubrication). The plaintiff was first arrested on October 28, 1985, and charged with one count of "Town Ordinance Violation: Bidding Procedure" in violation of chap ter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford (town competitive bidding ordinance) in connection with department purchases of lubrication services from Automatic Lubrication. The affidavit in support of the arrest alleged that the plaintiff, as director of the department, had violated the town competitive bidding ordinance by continuing the department's lubrication services contract with Automatic Lubrication without putting the contract out to bid after it had terminated. The plaintiff was again arrested on November 19, 1985, and charged with twelve counts of bribe receiving in violation of General Statutes § 53a-148, based on twelve rounds of golf he had played at Blackledge Country Club, allegedly paid for by Automatic Lubrication. The affidavit in support of the arrest alleged that the plaintiff, as the director of the department, had charged twelve rounds of golf to Automatic Lubrication's account at the Blackledge Country Club in return for providing "benefits, merchandise, and special considerations to Automatic Lubrication . . . ." Specifically, the affidavit alleged that "[o]ne of the benefits and special considerations that [the department had] afforded to Automatic Lubrication was awarding it the lubrication contract for Town vehicles without going through the bidding procedure as mandated by [the town competitive bidding ordinance]." During the criminal proceedings that followed his arrests, the plaintiff filed separate motions to dismiss each information under which he stood charged, claiming, inter alia, that "[t]he affidavit relied upon for the issuance of the arrest warrant [in each arrest] contained material inaccuracies and omissions which were the result either of deliberate falsehood or a reckless disregard for the truth." The plaintiff farther claimed that, if the court were to set aside such material inaccuracies and consider such material omissions, it would find that there was insufficient evidence to establish prob able cause that the plaintiff had committed the offenses charged. Accordingly, the plaintiff claimed that he was entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), for the purpose of challenging the truthfulness of the arrest warrant affidavits. In support of his motions, the plaintiff filed affidavits containing offers of proof, which satisfied the trial court in the criminal proceedings, Tamborra, J., that the plaintiff had made the substantial preliminary showing required for a Franks hearing. At the close of the Franks hearing, Judge Tamborra concluded that, even though the affidavits may have contained some inaccuracies, the plaintiff had not "met his burden of showing that a false statement necessary to the finding of probable cause was knowingly and intentionally included or made with reckless disregard for the truth." Accordingly, Judge Tamborra denied each of the plaintiffs motions to dismiss as to all counts, on the ground that sufficient probable cause existed for allowing the charges against the plaintiff to proceed to trial. Subsequently, the plaintiff was brought to trial on the criminal charges before Judge Robert Hale. At the close of the state's evidence, the plaintiff moved for a judgment of acquittal pursuant to Practice Book § 882 through 884, which Judge Hale granted on February 20, 1987. Thereafter, in September, 1987, the plaintiff commenced the present action against the defendants. The plaintiff raised three claims in his amended six count complaint: (1) a common law malicious prosecution claim based on his October 28, 1985 arrest; (2) a common law malicious prosecution claim based on his November 19,1985 arrest; and (3) a federal civil rights claim pursuant to 42 U.S.C. § 1983 (1988) based on both arrests. In support of his three claims, the plain tiff alleged that the defendants had failed properly to investigate the charges relating to both arrests and had submitted an affidavit in support of each arrest that contained numerous false and inaccurate statements. The plaintiff also alleged that the arrests had been made without probable cause and with malice. The plaintiff further alleged that as a result of the arrests he had received massive amounts of unfavorable publicity, had experienced great humiliation and mental anguish, and had suffered tremendous damage to his reputation. In their answer to the plaintiffs amended complaint, the defendants asserted four special defenses. They claimed that: (1) qualified immunity shielded them from liability because their alleged acts had been performed in the course of a governmental duty and were discretionary; (2) each arrest had been made pursuant to a valid warrant; (3) they had consulted with prosecuting attorneys in the course of their alleged conduct and were therefore protected by their reliance on the advice of counsel; and (4) their alleged conduct had been objec tively reasonable. On November 9, 1989, the defendants filed a motion for summary judgment on the grounds that: (1) the doctrine of qualified immunity protected them from liability; and (2) the doctrine of collateral estoppel precluded the plaintiff from relitigating the validity of the arrest warrants because that issue already had been fully and fairly litigated at the Franks hearing during the underlying criminal proceeding. On October 27, 1990, the trial court, Koletsky, J., denied the defendants' motion without memorandum. Thereafter, the case was tried to a jury, which, on January 2, 1992, returned a verdict in favor of the plaintiff on all six counts of his complaint, awarding a total of approximately $1 million in damages. On January 3,1992, the defendants moved to set aside the verdict and for judgment notwithstanding the verdict. The trial court allowed the defendants to amend their motion on two occasions. In support of their motion, the defendants reasserted the special defenses of qualified immunity and reliance on the advice of counsel, as well as their collateral estoppel claim. Additionally, the defendants asserted that: (1) there was insufficient evidence at trial to support a finding of lack of probable cause and malice under each count of the complaint; and (2) the verdict was excessive as a matter of law because the trial court improperly had admitted imper missibly speculative testimony concerning the plaintiffs alleged lost employment opportunity. In its memorandum of decision dated September 17,1992, the trial court, M. Hennessey, J., concluded that "the defendants [were] entitled to qualified immunity as a matter of law." Accordingly, the trial court granted the defendants' motion to set aside the verdict and rendered judgment for the defendants on all six counts. This appeal followed. The plaintiff claims that the trial court improperly set aside the jury's verdict because: (1) the defendants, having acted with malice, were not immune from the plaintiff's claims for malicious prosecution under our common law doctrine of qualified immunity; and (2) the defendants' qualified immunity from the plaintiff's civil rights claim depended on disputed questions of fact and, therefore, should not have been set aside as a matter of law. The defendants raise the following alternative grounds for affirming the trial court's judgment: (1) their arrests of the plaintiff were supported by probable cause as a matter of law; (2) they were entitled to qualified immunity because their conduct was objectively reasonable; (3) there was insufficient evidence to support the jury's finding of malice for purposes of the plaintiffs malicious prosecution claims; (4) the defendants' reliance on the advice of the state's attorneys shielded them from liability; and (5) the doctrine of collateral estoppel precluded the plaintiff from relitigating the existence of probable cause because that issue already had been fully and fairly litigated at the Franks hearing during the underlying criminal proceeding. In addition, the defendants argue that in the event that we reverse the judgment and reinstate the verdict, we should consider whether the damages awarded by the jury were excessive as a matter of law. Because we agree with the plaintiff and reject all of the defendants' alternative grounds for affirmance, we reverse. At the outset, we note that " '[directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982)[;] Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Our review of a trial court's [decision] to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. [In determining whether the trial court has correctly set aside the verdict, we] must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985) . [We will uphold a trial court's decision to set aside the verdict and direct judgment] only if we find that the jury could not reasonably and legally have reached their conclusion. . . . Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986) . . . .' (Internal quotation marks omitted.) Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989)." John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991). I The plaintiff first claims that the trial court incorrectly set aside the verdict because it applied the wrong standard of qualified immunity to his common law claims of malicious prosecution. The plaintiff asserts that the trial court incorrectly applied to both his civil rights claim and his common law claims an "objective reasonableness" standard of immunity, even though that standard is properly applicable only to his civil rights claim. Under this standard, the defendants' conduct was protected by qualified immunity unless they acted in an objectively unreasonable manner. The plaintiff argues, to the contrary, that under common law immunity, a showing of malice on the part of the defendants sufficiently defeats qualified immunity. The plaintiff further argues that because the jury reasonably found that the defendants had acted with malice, the trial court incorrectly determined that the defendants were immune as a matter of law from the plaintiffs common law malicious prosecution claims. We agree with the plaintiff. "The [common law] doctrines that determine the tort liability of municipal employees are well established." Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). Although historically " '[a] municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) . . . [municipal] employees faced the same personal tort liability as private individuals.' Gordon v. Bridgeport Housing Authority, [208 Conn. 161, 165, 544 A.2d 1185 (1988)]." Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Over the years, however, "[t]he doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees." Burns v. Board of Education, supra, 645. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Id. "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature." Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). In contrast, " '[ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975). Under the facts of this case, the defendants' allegedly tortious conduct constitutes discretionary govern mental action for which they, as municipal employees, are generally immune. A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: " 'first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.' (Citations omitted.) [Evon v. Andrews, supra, 211 Conn. 505.]" Burns v. Board of Education, supra, 228 Conn. 645. Thus, " '[t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.' Burns v. Reed, [500 U.S. 478, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991)]; see also Malley v. Briggs, [475 U.S. 335, 340, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)]; Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)." DeLaurentis v. New Haven, 220 Conn. 225, 243, 597 A.2d 807 (1991). The standard of qualified immunity that protects public officials from civil suits pursuant to § 1983, arising from the performance of their discretionary functions, is distinct from that established under our common law. "Although [§ 1983] on its face admits of no immunities"; Malley v. Briggs, supra, 475 U.S. 339; the United States Supreme Court has held that the qualified immunity defense protects government officials performing discretionary functions from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, supra, 457 U.S. 818. For purposes of a § 1983 claim, "whether an official protected by quali fied immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established'at the time it was taken . . . .''(Citations omitted.) Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); Harlow v. Fitzgerald, supra, 818-19. "A subjective inquiry into an official's personal belief is rejected in favor of an objective analysis of what a reasonable officer in [the] defendant's position would believe. In the context of an allegedly unconstitutional arrest, the objective reasonableness standard bars the defense of qualified immunity '[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.' Malley v. Briggs, [supra, 344-45]. Thus, even where the law and the scope of permissible official conduct are clearly established, the defense of qualified immunity will protect a government official if it was 'objectively reasonable' for him [or her] to believe his [or her] acts were lawful." Cartier v. Lussier, 955 F.2d 841, 843-44 (2d Cir. 1992). Moreover, " 'an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner.' Malley [v. Briggs, supra, 341] (emphasis added) . . . ." Cartier v. Lussier, supra, 846. This comparison of the well established common law and federal doctrines of qualified immunity establishes that the trial court incorrectly applied the federal "objective reasonableness" standard to the plaintiff's common law claims. In discussing whether the defendants were entitled to qualified immunity as a matter of law, the trial court made no distinction between the plaintiff's common law claims and his civil rights claim. The trial court merely concluded that Cartier v. Lussier, supra, 955 F.2d 841, was "dispositive of the issue of qualified immunity and the defendants' claim that they are entitled to qualified immunity as a matter of law." In reaching this conclusion, the trial court neither considered nor cited any state cases. Rather, the trial court relied solely on federal cases and discussed the defense of qualified immunity strictly in the context of a § 1983 claim. Thus, we agree with the plaintiff that the trial court applied the incorrect fed eral standard of qualified immunity to his common law claims of malicious prosecution. To succeed in these common law claims, the plaintiff must qualify for one of the exceptions to a municipal employee's qualified immunity for discretionary acts. The plaintiff asserts that the only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action when the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See DeLaurentis v. New Haven, supra, 220 Conn. 242-43; Evon v. Andrews, supra, 211 Conn. 505; Stiebitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957). We agree with the plaintiff's claim that this exception is applicable. One of the elements that the plaintiff was required to demonstrate in proving his claims for malicious prosecution was that the defendants "acted with malice, primarily for a purpose other than that of bringing an offender to justice. Zenik v. O'Brien, 137 Conn. 592, 595, 79 A.2d 769 (1951); Brodrib v. Doberstein, 107 Conn. 294, 296-98, 140 A. 483 (1928); McGann v. Allen, 105 Conn. 177, 185, 134 A. 810 (1926); 3 Restatement (Second), Torts (1977) § 653; W. Prosser, Torts (4th Ed. 1971) § 119." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982). In a malicious prosecution action, "the defendant is said to have acted with 'malice' if he [or she] acted primarily for an improper purpose; that is, 'for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based'; 3 Restatement (Second), Torts § 676; such as the desire to 'occasion expense' to the other party. Whipple v. Fuller, 11 Conn. 582, 586 (1836)." DeLaurentis v. New Haven, supra, 220 Conn. 256 n.16. The defendants do not deny that the trial court properly instructed the jury as to this definition and we must assume that the jury followed those instructions. Woodward v. Waterbury, 113 Conn. 457, 460, 155 A. 825 (1931). Because the jury found in favor of the plaintiff on his malicious prosecution claims, it necessarily found that the defendants acted with malice. This finding of malice was sufficient to defeat a defense of qualified immunity under our common law. We conclude, therefore, that, as a matter of law, the trial court incorrectly determined that the doctrine of qualified immunity applicable to § 1983 claims shielded the defendants from liability with respect to the plaintiffs common law claims of malicious prosecution. II The plaintiff next claims that the trial court improperly set aside the verdict as a matter of law with respect to his civil rights claim because the issue of whether qualified immunity shielded the defendants from liability turned on disputed issues of material fact. The plaintiff contends that the trial court made its decision to set aside the verdict on the basis of its flawed interpretation of Cartier v. Lussier, supra, 955 F.2d 841, a case that was decided by the United States Court of Appeals for the Second Circuit after the trial in this case had concluded. The plaintiff argues that as a result, the trial court improperly substituted its judgment for that of the jury on factual issues, and, therefore, its decision should be reversed. We agree. The trial court granted the defendants' motion to set aside the verdict and for judgment notwithstanding the verdict solely on the basis of Cartier. In Cartier, the defendant moved for summary judgment asserting that the doctrine of qualified immunity barred the plaintiff's § 1983 claim because an objective basis existed for finding probable cause for the arrests. Id., 843. The United States District Court for the District of Connecticut had denied the defendant's motion, and the Court of Appeals for the Second Circuit reversed. Id. The Cartier court held that when factual disputes are immaterial to resolving the issue of whether an objective basis existed for finding probable cause, the "protective mantle" of qualified immunity remains intact as a matter of law. Id., 842. In so holding, the court stated that the "[pjlaintiffs may not unwrap a public officer's cloak of immunity from suit simply by alleging even meritorious factual disputes relating to probable cause, when those controversies are nevertheless not material to the ultimate resolution of the immunity issue." Id., 845. The Cartier court explained that, in the context of a § 1983 claim, and for purposes of summary judgment, the determination of whether factual disputes are material to the resolution of the issue of qualified immunity is made by applying the same affidavit correction test used in a Franks hearing. Id. Under that test, factual disputes are immaterial to the resolution of the issue of qualified immunity if " 'the affidavit accompanying the warrant is sufficient, after correcting for material misstatements or omissions, to support a reasonable officer's belief that probable cause existed.' " Id., quoting Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990). "Only if the corrected affidavit did not support an objective finding of probable cause would the factual disputes be material to resolving the issue of probable cause. In that case, summary judgment [appropriately would] be denied and [the] factual issues involving the immunity doctrine would be submitted to the jury." Cartier v. Lussier, supra, 845-46. In its memorandum of decision, the trial court interpreted Cartier as "calling for" a Franks hearing, and noted that, in the present action, such a hearing already had been held by Judge Tamborra. The trial court further noted that the "analysis put forth by the Cartier court" had not been available either to the trial court, Koletsky, J., or to the parties, when the defendants had filed their motion for summary judgment in 1989. The trial court thus concluded that "in light of Cartier and the fact that [in this case] a Franks hearing [had been] held after which probable cause [had been] found, we conclude that the defendants are entitled to qualified immunity as a matter of law." We conclude, as the plaintiff asserts, that the trial court misinterpreted Cartier and, therefore, improperly relied on that case in determining that the defendants were entitled to qualified immunity as a matter of law. The trial court improperly gleaned from Cartier the proposition that a determination of the existence of an objective basis for finding probable cause at a criminal Franks hearing can sufficiently supplant the same determination for purposes of determining the applicability of qualified immunity as a matter of law at a civil trial. In contrast to the trial court's interpretation, however, Cartier does not "call" for a Franks hearing. Moreover, Cartier does not state that an objective finding of probable cause at a criminal Franks hearing satisfies the same determination for purposes of resolving the applicability of qualified immunity. Rather, Cartier requires that in a civil proceeding, before taking the issue of qualified immunity away from the jury as a matter of law on a motion for summary judgment, the trial court must first determine that there are no material issues of fact relevant to the existence of probable cause. Cartier v. Lussier, supra, 955 F.2d 845-46. Cartier merely states that the trial court must make such a determination by conducting the same type of test that is applied in assessing whether a Franks hearing is warranted. See id., 845, 846. The principles applied by the Cartier court are consistent with the principles of federal qualified immunity contained in federal precedent, and do not represent any departure therefrom. See, e.g., Finnegans. Fountain, 915 F.2d 817 (2d Cir. 1990); Warren v. Dwyer, 906 F.2d 70 (2d Cir.), cert. denied, 498 U.S. 967, 111 S. Ct. 431, 112 L. Ed. 2d 414 (1990). In accordance with this established precedent, the defendants were entitled to qualified immunity as a matter of law only if, on the facts found, their conduct either did not violate "clearly established rights" of which a reason able person would have known, or it was "objectively reasonable" for them to have believed at the time of the challenged action that their acts did not violate those clearly established rights. See Finnegan v. Fountain, supra, 823; Warren v. Dwyer, supra, 74. The right of an individual not to be subjected to arrest without probable cause has long been clearly established; Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied sub nom. Lillis v. Golino, U.S. , 112 S. Ct. 3032, 120 L. Ed. 2d 902 (1992); and is not disputed by the parties. Thus, the question in this case was whether it was objectively reasonable for the defendants to believe that their arrests of the plaintiff did not violate that right. See Calamia v. New York, 879 F.2d 1025, 1036 (2d Cir. 1989). Although the ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court, when, as in this case, there are unresolved factual issues material to the applicability of the defense, preventing its early disposition, resolution of those factual issues is properly left to the jury. Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994); Warren v. Dwyer, supra, 76. In the present case, the trial court instructed the jury that the defendants could not be held liable unless it found that "on the facts known by them at the time [of the arrests], [the defendants] had absolutely no basis for a belief in prosecution." Thus, by virtue of its unchallenged jury instruction, the trial court properly permitted the jury to resolve the factual issues relevant to determining the applicability of qualified immunity. We presume that the jury followed those instructions in arriving at its verdict in favor of the plaintiff. Woodward v. Waterbury, supra, 113 Conn. 460. The verdict reflects the jury's resolution, against the defendants, of the factual disputes material to the issue of whether the defendants' belief in probable cause was objectively reasonable. The trial court is authorized to set aside the jury's verdict only when it finds that the jury could not reasonably and legally have reached its conclusion. John T. Brady & Co. v. Stamford, supra, 220 Conn. 441. In this case, however, the trial court did not set aside the jury's verdict on the ground that it was unsupported by the facts in the record. Nor did the trial court set aside the verdict on the ground that there were no material issues of fact relating to the existence of probable cause. Instead, on the basis of its overly broad interpretation of Cartier, the trial court set aside the verdict because it considered itself bound by Judge Tamborra's earlier determination at the Franks hearing that the corrected affidavits supported an objective finding of probable cause. We conclude, therefore, that the trial court improperly determined as a matter of law that qualified immunity shielded the defendants from liability for the plaintiffs civil rights claim. Ill Because we conclude that the trial court improperly set aside the verdict for the plaintiff, we must now turn to the defendants' five alternative grounds for affirmance. A The defendants first argue, as an alternative ground for affirming the judgment of the trial court setting aside the verdict, that undisputed facts established probable cause, as a matter of law, in support of both of the arrests of the plaintiff by the defendants. We disagree. "Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable grounds for prosecuting an action. Paranto v. Ball, 132 Conn. 568, 571, 46 A. 2d 6 [1946]. Mere conjecture or suspicion is insufficient. Zitkov v. Zaleski, 102 Conn. 439, 445, 128 A. 779 [1925]. Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable. Shea v. Berry, 93 Conn. 475, 478, 106 A. 761 [1919]. Although want of probable cause is negative in character, the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding. Stone v. Stevens, 12 Conn. 219, 227 [1837]; Altman v. Standard Refrigerator Co., 315 Pa. 465, 477, 173 A. 411 [1934]; 34 Am. Jur. 776." Zenik v. O'Brien, supra, 137 Conn. 597. In the present case, the existence of probable cause for both arrests was contingent upon the defendants' assertion, in the affidavits in support of the arrests, that the department's lubrication services contract with Automatic Lubrication was fixed for one year, and had terminated. In the affidavit in support of the October 28 arrest, the defendants claimed that the plaintiff had violated the town competitive bidding ordinance by failing to put the contract out to bid after the contract had terminated. Likewise, in the affidavit in support of the November 19 arrest, the defendants claimed that the plaintiff had violated the state bribe receiving statute because he had allowed Automatic Lubrication to pay for his rounds of golf at the Blackledge Country Club in return for the benefit of continuing the contract, even after it had terminated, without first submitting the contract to bid. If the contract had been a continuing one that remained valid throughout the period in question, there would have been no obligation to submit the contract to bid; nor would there have been any quid pro quo for the plaintiffs acceptance of a benefit from Automatic Lubrication. Thus, the defendants' assertion of probable cause for both arrests depended upon the contract having terminated. "In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. . . . Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990)." (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 722, 629 A.2d 333 (1993). If, as in this case, "the parties have reduced their agreement to a writing, their intent 'is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intent existed in the minds of the parties but what intention is expressed in the language used.' (Internal quotation marks omitted.) [Barnard v. Barnard, supra, 214 Conn. 110.]" Id. Further, "[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). In the present case, the contract in question contains such definitive language. Consequently, the issue of whether the parties intended that the contract be fixed for one year, or continuing, is a question for the court to resolve from the language contained in the contract. The contract has no termination date, but contains a provision permitting either party to give a sixty day termination notice. This provision persuades us that the contract is a continuing contract terminable by either party at any time upon sufficient notice. At trial, the plaintiff presented uncontested evidence that during all material times, neither Automatic Lubrication nor the department had issued a notice of intent to cancel the contract. Thus, when the defendants prepared the arrest warrants, the contract had not terminated and was ongoing as a matter of law during the period in question. In light of this determination, we necessarily conclude that the defendants lacked probable cause as a matter of law when they arrested the plaintiff. We, therefore, reject this alternative ground for affirmance. B The defendants also argue, as an alternative ground for affirming the trial court's judgment setting aside the verdict, that even if the defendants lacked probable cause to arrest the plaintiff, qualified immunity shielded them from liability on the plaintiff's civil rights claim pursuant to § 1983 because their conduct was objectively reasonable. More specifically, the defendants argue that they are entitled to the defense of qualified immunity because it was objectively reasonable for them to have believed when they arrested the plaintiff that their acts did not violate the plaintiff's clearly established right not to be arrested or prosecuted without probable cause. See Finnegan v. Fountain, supra, 915 F.2d 823 ("to establish the qualified immunity-defense, a police officer must satisfy one of two tests: either that his [or her] conduct did not violate 'clearly established rights' of which a reasonable person would have known, or that it was 'objectively reasonable' to believe that his [or her] acts did not violate these clearly established rights" [emphasis in original]). We disagree. At trial, the plaintiff introduced evidence that on September 5, 1985, the audit and investigations committee of the town council of East Hartford (committee) held a meeting for the purpose of investigating "their criteria for running the [lubrication] service and their procedures for monitoring the service . . . .''Present at the meeting were the plaintiff and other department employees, various members of the committee, and representatives of Automatic Lubrication. The minutes of that meeting contained a transcript of the questions by committee members, among others, to the plaintiff, along with his answers, concerning the nature of the lubrication services contract. The transcript was admitted into evidence at trial. In response to questions about the length of the contract, the plaintiff stated: "It was an on-going contract—just continued from month to month and either party had a right to cancel the contract at any time." In addition, the plaintiff stated that the reason the department had not put the contract out to rebid was because of the sixty day cancellation clause. The chairman of the committee provided the defendants with a copy of the transcript. In fact, in their affi davit in support of the October 28 arrest, the defendants relied on portions of the plaintiffs testimony from the transcript. The defendants, therefore, were aware of the plaintiffs responses to the committee's questioning regarding the length of the contract, and had reason to know that the plaintiff and the department considered the contract to be ongoing in nature. Moreover, the plaintiff introduced evidence that, prior to the defendants' arrests of the plaintiff, the town's own police department had concluded in a prior investigation that the contract was ongoing. Specifically, the plaintiff introduced evidence that in September, 1981: the police department already had conducted an investigation of the same contract between the department and Automatic Lubrication; as part of that investigation, the assistant director of finance had conducted a review of all bills submitted by Automatic Lubrication during the two years preceding September, 1981; and, as a result of the whole investigation, the police department had acknowledged that Automatic Lubrication had a valid continuing contract with the town and had not made any claim that the town's purchases of lubrication services had violated the town competitive bidding ordinance. For purposes of testing the objective reasonableness of the defendants' belief that probable cause existed, the defendants are held to have known about this earlier investigation. See State v. Acquin, 187 Conn. 647, 657, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983) ("when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered"). At trial, the plaintiff introduced further evidence indicating that the department and various other town offi cials considered and consistently treated the contract as ongoing in nature. Specifically, the plaintiff introduced evidence that: during the period from December, 1969, through July, 1985, the town's purchases of lubrication services were approved and authorized by all of the plaintiff's superiors in town government, namely, the mayor, town council and finance director; the account was reviewed annually by the town finance director and subsequently approved by the mayor and the town council in accordance with the budget procedures set forth in the town charter; each bill submitted by Automatic Lubrication over the nearly sixteen years of the lubrication contract was paid by the finance director in accordance with the procedures identified in the town charter and purchasing manual; in addition to the audit performed by the finance director pursuant to the town charter, the assistant finance director conducted a special audit of all bills received from Automatic Lubrication during the two year period immediately prior to September, 1981, at the request of the East Hartford police department; an independent auditor hired by the town council also conducted an annual audit of the books and accounts of the town pursuant to the town charter; and, finally, neither the audit of town expenditures performed by the finance director, the special audit conducted by the assistant finance director, nor the annual audit performed by the independent auditor selected by the town council, reflected that any purchases of lubrication services from Automatic Lubrication during the period in question were in violation of the town competitive bidding ordinance. On the basis of this evidence, we conclude that the jury could reasonably have inferred that a reasonable police officer in the defendants' position would have known that the plaintiff, his coworkers, Automatic Lubrication, and relevant town officials considered and consistently treated the department lubrication services contract with Automatic Lubrication as ongoing in nature. On the basis of these findings, the jury could have reasonably concluded that it was objectively unreasonable for the defendants to have believed that they had probable cause to arrest the plaintiff and that their conduct did not violate the plaintiff's clearly established rights. Accordingly, we reject this alternative ground for affirmance. C The defendants also argue as an alternative ground for affirming the trial court's judgment setting aside the verdict, that the jury could not reasonably have found that the defendants acted with malice sufficient to prove the plaintiff's claims of malicious prosecution. We disagree. As we already have stated, to succeed in his claims for malicious prosecution, the plaintiff must show that the defendants acted with malice, that is, primarily for a purpose other than that of bringing the plaintiff to justice. DeLaurentis v. New Haven, supra, 220 Conn. 256 n.16; McHale v. W.B.S. Corp., supra, 187 Conn. 447. Additionally, the plaintiff must prove that the defendants acted without probable cause. McHale v. W.B.S. Corp., supra, 447. "Want of probable cause and malice, combined, are essential." Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 496, 16 A. 554 (1888). "If the evidence supports the former, we need not consider the latter, since it may be inferred." Zenik v. O'Brien, supra, 137 Conn. 597; see Thompson v. Beacon Valley Rubber Co., supra, 496. Thus, having determined that the defendants lacked probable cause as a matter of law, we conclude that the jury could reasonably have inferred that the defendants acted with malice. Moreover, there was ample evidence at trial from which the jury could have reasonably found malice separate and apart from the lack of probable cause. The plaintiff introduced evidence that three days prior to arresting the plaintiff, the defendants had promised to contact the plaintiffs attorney and to allow him to surrender should he later become subject to arrest, but thereafter ignored that promise and arrested the plaintiff, at a public meeting of the audit committee, to which the press expressly had been invited. As additional proof of the defendants' malice, the plaintiff introduced evidence of the defendants' failure fully to investigate the charges for which they arrested the plaintiff. See DeLaurentis v. New Haven, supra, 220 Conn. 258 (" 'to proceed without inquiry would be to act without probable cause where the information is readily obtainable' "). First, the plaintiff introduced uncontested evidence that Automatic Lubrication in fact had not paid for eight of the plaintiff's twelve rounds of golf that were the subject of his November 19 arrest. Additionally, the plaintiff introduced evidence that the defendants had failed to inquire into their own police department's September, 1981 investigation, prior to arresting the plaintiff. The jury was free to accept these facts and circumstances as true, and to infer therefrom that the defend ants had: (1) arrested the plaintiff in public so as to ensure prominent news coverage of the event and the plaintiffs ensuing humiliation; (2) improperly proffered eight felony charges against the plaintiff for eight rounds of golf that had not been paid for by Automatic Lubrication; and (3) remained wilfully ignorant of the police department's prior unfruitful investigation of the department's contract with Automatic Lubrication concerning similar allegations of impropriety. From these inferences, the jury could reasonably have concluded that the defendants acted for an improper purpose, i.e., other than to secure justice. Accordingly, we reject the defendants' claim that the jury could not reasonably have found that the defendants acted with malice sufficient to prove a claim for malicious prosecution. D The defendants next argue, as an alternative ground for affirmance, that their reliance on the advice of state's attorney John Bailey and assistant state's attorney Cornelius Shea prior to proceeding against the plaintiff affords them a complete defense to the plaintiff's claims for malicious prosecution. We disagree. Although we have held that a defendant's reliance on the advice of counsel can be a complete defense to an action for malicious prosecution; McHale v. W.B.S. Corp., supra, 187 Conn. 449; Brodrib v. Doberstein, supra, 107 Conn. 296-97; such a defense protects only the defendant who fully and fairly states all the material facts within his or her knowledge, or which he or she was charged with knowing, to the prosecuting attorney, and who in good faith abides by that attorney's decision as to whether the facts constituted probable cause for believing that a crime has been committed. Brodrib v. Doberstein, supra, 296, 298. At trial, the defendants presented evidence that they had consulted with the state's attorney's office on at least three occasions in connection with the arrests, that affidavits in support of the arrests had been presented to the state's attorneys, and that the state's attorneys had found probable cause to support the arrests. The plaintiff, however, presented evidence that both of the warrant affidavits prepared by the defendants were replete with false statements and omissions of fact. On the basis of this evidence, the jury was free to conclude that the defendants had not made "a full and fair disclosure" of the material facts within their knowledge to the prosecuting attorneys. Accordingly, we reject the defendants' defense that their reliance on the advice of the state's attorney's office shielded them from liability on all counts. E As a fifth ground on which to affirm the judgment of the trial court, the defendants argue that the doctrine of collateral estoppel precluded the plaintiff from relitigating the existence of probable cause because that issue already had been litigated fully and fairly during the underlying criminal case at the Franks hearing. We disagree. "In Franks v. Delaware, supra, [438 U.S. 155-56], the United States Supreme Court held that if a defendant makes a 'substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.' See also State v. Weinberg, 215 Conn. 231, 237, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990); State v. Ruscoe, [212 Conn. 223, 232, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990)]. Cases subsequent to Franks have extended the rule to include material omissions from the affidavit. See State v. Weinberg, supra, [237]; State v. Bergin, supra, [666]. As the United States Supreme Court noted in Franks, '[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory . There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.' Franks v. Delaware, supra, 171." State v. Rodriguez, 223 Conn. 127, 142-43, 613 A.2d 211 (1992). In the underlying criminal proceeding related to the present action, the plaintiff moved to dismiss the criminal charges against him, claiming that the arrest warrant affidavits contained material inaccuracies and omissions that were the result of either a deliberate falsehood or a reckless disregard for the truth. On February 3,1986, Judge Tamborra heard the plaintiff's motion and determined that the plaintiff had established the threshold showings required under Franks for the granting of an evidentiary hearing on the issue of the falsity of the affidavits submitted by the defendants with the arrest warrant applications. At the close of that hearing, Judge Tamborra concluded that both arrests of the plaintiff had been supported by probable cause. Accordingly, Judge Tamborra denied the plaintiff's motion to dismiss. The defendants assert that, because the existence of probable cause defeats all of the plaintiff's claims, the preclusive effect of Judge Tamborra's determination that the corrected affidavit supported an objective finding of probable cause warranted a directed verdict in their favor. Specifically, the defendants assert that the plaintiff is collaterally estopped from relitigating the issue of probable cause previously resolved against him by Judge Tamborra. Accordingly, the defendants urge us to affirm the trial court's judgment to set aside the verdict. We reject the defendants' argument. "Pursuant to 28 U.S.C. § 1738 (1988) . . . the federal courts 'must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered. ' Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984). This rule applies to determine the preclusive effect of a state court judgment on a subsequent suit . . . brought pursuant to § 1983. See Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980); Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178,183 (2d Cir.), cert. denied, 502 U.S. 866, 112 S. Ct. 193, 116 L. Ed. 2d 153 (1991)." Golino v. New Haven, supra, 950 F.2d 869. For purposes of the plaintiff's § 1983 claim, we are operating as a federal court. Consequently, with respect to both the plaintiff's common law claims and civil rights claim, the issue of whether Judge Tamborra's determination precludes further litigation turns on our interpretation of this state's law of issue preclusion. See id. Under Connecticut law, "[cjollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). We conclude that in the present action, the plaintiff was not provided with a full and fair opportunity as that phrase is used in the collateral estoppel lexicon to litigate the issue of probable cause at the Franks hearing. "The requirement of full and fair litigation ensures fairness, which is a 'crowning consideration' in collateral estoppel cases." Id., 306. In discussing what constitutes "full and fair litigation" for the purposes of collateral estoppel, we have stated that "if the nature of the hearing carries procedural limitations that would not be present at a later hearing, the party might not have a full and fair opportunity to litigate." Id. Because, in Connecticut, a Franks hearing occurs early in the underlying criminal case, it necessarily has procedural limitations that were not present in the plaintiff's subsequent civil trial on his claims for malicious prosecution. For example, when a defendant succeeds in establishing a "substantial showing of a false statement intentionally and/or recklessly made by the affiant"; (emphasis in original) State v. Dolphin, 195 Conn. 444, 458, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); and is thus granted a Franks hearing, his or her access to discovery is far more limited than in a civil proceeding. Compare, e.g., General Statutes § 54-46a (b) and 54-86 through 54-86c, and Practice Book § 620, 625, 731 through 755 and 764, with General Statutes § 52-148a through 52-148e, 52-149a through 52-152, 52-155 through 52-157 and 52-197 through 52-200a, and Practice Book § 216 through 249. Accordingly, we conclude that the doctrine of collateral estoppel did not preclude the plaintiff from litigating the existence of probable cause even though that issue had already been partially litigated at an earlier Franks hearing. IV Because we reverse the judgment and reinstate the verdict, we must also consider the defendants' claim that the damages awarded by the jury were excessive as a matter of law and based on inadmissible evidence. Specifically, the defendants argue that the trial court incorrectly admitted the testimony of David Hanlon concerning an alleged lost employment opportunity claimed by the plaintiff. The defendants further argue that because Hanlon's testimony was impermissibly speculative, it cannot properly support the jury's award of thousands of dollars of damages, attributable only to Hanlon's testimony. In the alternative, the defendants argue that the jury acted out of passion, sympathy, or another improper motive in awarding the plaintiff's damages. Consequently, the defendants urge us to conclude that the verdict is excessive as a matter of law and to remand the case for a new trial on the question of damages. Pursuant to Practice Book § 4013, we address their claim. The defendants raised their claim of excessive damages in their motion to set aside the verdict and for judgment notwithstanding the verdict and briefed the claim in their memorandum in support of their motion. Because the trial court based its decision to grant the defendants' motion solely on the ground of the qualified immunity defense, however, it never ruled on the defendants' claim. The decision whether to reduce a jury verdict because it is "excessive as a matter of law" rests solely within the discretion of the trial court, pursuant to General Statutes § 52-216a. See, e.g., Seals v. Hickey, 186 Conn. 337, 348, 441 A.2d 604 (1982). Further, the proper standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an "abuse of discretion." Oakes v. New England Dairies, Inc., 219 Conn. 1, 14, 591 A.2d 1261 (1991); Seals v. Hickey, supra, 348. In the absence of the trial court's ruling on the defendants' motion to set aside the verdict as excessive, we have no basis upon which to review the defendants' claim. Accordingly, we remand the case to the trial court for its consideration of this claim. See Seals v. Hickey, supra, 348 n.9 ("we do not know of any reason why any party who claims that the trial judge has abused his [or her] discretion in acting under General Statutes § 52-216a may not . . . move to have him [or her] reconsider that exercise in the trial court"). The judgment is reversed and the case is remanded to the trial court for an articulation in accordance with part IV of this opinion. In this opinion Peters, C. J., Borden and Norcott, Js., concurred. The town of East Hartford is also a defendant in this case. The plaintiffs claims against the town, brought pursuant to General Statutes § 7-101a and/or 7-465, are for indemnification purposes only. At trial, the town admitted that it would be responsible for the conduct of the individual defendants, Rioux and Myers, if they were found to be liable. This opinion does not refer to the town separately in its role as a defendant. Chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford provides: "Purchasing Manual and Amount Limitations Requiring Sealed Bids and Quotations. "The Purchasing Agent and the Director of Finance shall prescribe rules, regulations, and procedures in a written administrative purchasing manual and all purchases shall be made pursuant thereto. The manual shall be given to all departments with instructions regarding its use. "All single purchases and contracts, other than professional services for which the requirement of competitive bidding would not be to the Town's advantage, in which the amount of expenditure is estimated to exceed Two Thousand Five Hundred Dollars ($2,500), shall be made from or let by sealed bids. However, all purchases less than Two Thousand Five Hundred Dollars ($2,500), but more than One Thousand Five Hundred Dollars ($1,500), shall be substantiated by three (3) quotations which shall be held as a permanent record for audit and public inspection." Chapter 1, § 1-14 of the code of ordinances of the town of East Hartford provides in relevant part: "General Penalty. "(a) Whenever in this Code or in any Ordinance of the Town any act is prohibited or is made or declared to be unlawful or an offense, misdemeanor or public nuisance or whenever in such Code or Ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, where no specific penalty is provided therefor, the violation of any such provision of this Code or any Ordinance shall be punishable by a fine not exceeding Ninety-Nine ($99.00) Dollars, or imprisonment for a term not exceeding six (6) months, or by both such fine and imprisonment, unless a different penalty is prescribed by law." General Statutes § 53a-148 provides: "bribe receiving: class d felony, (a) A public servant or a person selected to be a public servant is guilty of bribe receiving if he solicits, accepts or agrees to accept from another person any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote. "(b) Bribe receiving is a class D felony." General Statutes § 54-56 provides: "dismissal of information by court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial." The plaintiff claimed that chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford was not a penal ordinance and, therefore, did not charge a criminal offense. Judge Tamborra also rejected the plaintiffs claim that chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford was not a penal ordinance. Judge Tamborra noted that chapter 1, § 1-14 of the code of ordinances of the town of East Hartford provides a penalty, a fine or imprisonment for violating any ordinance that requires an affirmative act. Judge Tamborra reasoned that because chapter 10, article 2, § 10-5 is such an ordinance, its violation would necessarily subject one to penal sanctions of the code. Whether such a violation would subject the offender to criminal prosecution by means of General Statutes § 53a-24 is an issue we need not resolve. Practice Book § 883 provides in relevant part: "[-MOTIONS for judgment OF ACQUITTAL]--IN GENERAL . . . "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 § 884 provides in relevant part: "--at close of prosecution's case "If the motion is made after the close of the prosecution's case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present his [or her] case in chief. . . ." Each claim was framed in two counts: one count against the defendants Rioux and Myers; and the other count against the defendant town of East Hartford for indemnification. Section 1983 of title 42 of the United States Code (1988) 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." The plaintiff's § 1983 claim alleged liability on the basis of his malicious prosecution claims. See Conway v. Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984) (action for malicious prosecution may support liability under § 1983). Specifically, the plaintiff alleged that the defendants, while acting under color of state law, had caused the plaintiff to be arrested on October 28, and November 19,1985; that the arrests had violated the plaintiff's right to freedom from illegal seizure of his person, unlawful arrest, and illegal detention, secured by the due process clause of the fifth and fourteenth amendments to the constitution of the United States; and that as a result, the plaintiff had suffered damages. The plaintiff alleged, inter alia, that in the affidavits in support of each arrest the defendants had: (1) falsely and inaccurately stated that the department's lubrication services contract with Automatic Lubrication (contract) was fixed for one year; (2) failed to disclose that the contract was a continuing contract that could be terminated by either the department or Automatic Lubrication; and (3) falsely and inaccurately stated that it was the plaintiff's responsibility to put the contract out to bid. Specifically with respect to the affidavit in support of the October 28 arrest, the plaintiff alleged that the defendants had: (1) provided a false and misleading account of the plaintiff's testimony at a meeting of the town council's audit and investigations committee, held for the purpose of investigating the criteria for running the lubrication service, by selectively editing the plaintiff's testimony and by failing to include the plaintiff's complete responses to the committee's questions; and (2) falsely and inaccurately stated that the plaintiff, having the responsibility to put the contract out to bid, had failed to do so by his own admission. Finally, with respect to the affidavit in support of the November 19 arrest, the plaintiff alleged that the defendants had failed to disclose that on eight of the twelve occasions that the plaintiff had played golf at Blackledge Country Club, his round had been neither charged to nor paid for by Automatic Lubrication. In connection with the plaintiff's common law malicious prosecution claims, the jury awarded damages of $487,000 on the first and second counts, relating to the October 28,1985 arrest, and $487,000 on the third and fourth counts, relating to the November 19, 1985 arrest. In connection with the plaintiffs civil rights claim, the jury awarded damages of $974,000 on the fifth and sixth counts, relating to both arrests. Because the trial court properly instructed the jury that the plaintiff is entitled to full recovery only once for his suffered harm; Kilduff v. Adams, Inc., 219 Conn. 314, 333, 593 A.2d 478 (1991); his damages total $974,000. After the close of the plaintiff's case-in-chief and again after the close of evidence, the defendants had moved for a directed verdict, claiming qualified immunity as a matter of law. See Practice Book § 321. The trial court reserved decision on both of these motions. The defendants raised other grounds for setting aside the verdict that are not relevant to this appeal. Because neither party has raised the public duty doctrine, and because we already have concluded that the defendants' conduct constitutes discretionary action, we do not consider in this instance the parallel analysis of common law governmental immunity that involves the question of whether the duty imposed upon the defendants is public or private in nature. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 166-67; Shore v. Stoningion, 187 Conn. 147, 152, 444 A.2d 1379 (1982); Leger v. Kelley, 142 Conn. 585, 589-90, 116 A.2d 429 (1955). Specifically, the trial court relied on: Anderson v. Creighton, supra, 483 U.S. 639; Harlow v. Fitzgerald, supra, 457 U.S. 818; Cartier v. Lussier, supra, 955 F.2d 843. In their brief to this court, the defendants do not expressly dispute that the trial court applied the incorrect standard of qualified immunity to the plaintiffs common law claims, but they nevertheless imply that this court has adopted the federal standard as applicable to such claims. In support of this position, the defendants cite Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 168-69 n.3. The defendants' reliance on Gordon, however, is entirely misplaced. In Gordon, we stated: "This state's doctrine of governmental immunity accords with the doctrine of governmental immunity as announced by the United States Supreme Court in Nixon v. Fitzgerald, 457 U.S. 731, 744, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982). There [the United States Supreme Court] stated: '[T]his court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages. ' 'As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.' Harlow v. Fitzgerald, [supra, 457 U.S. 806]. Federal law also recognizes the distinction between discretionary and ministerial acts. Id., 816-17; see also Payton v. United States, 679 F.2d 475, 479-80 (5th Cir. 1982)." (Emphasis added.) Gordon v. Bridgeport Housing Authority, supra, 168-69 n.3. Thus, despite the defendants' claim to the contrary, in Gordon we did not incorporate federal standards into our state's doctrine of qualified immunity; we merely noted that our state's policy of providing some form of qualified immunity to governmental officials is not inconsistent with the federal approach. In addition to suggesting that this court has already adopted the federal standard as applicable to common law claims, the defendants expressly invite this court to adopt the objective reasonableness standard in the context of state law claims arising out of allegedly unlawful arrests. Because we are unpersuaded by the defendants' arguments, however, we decline to accept this invitation. The trial court's jury charge on the defendants' qualified immunity defense confirms that the trial court analyzed the plaintiff's common law claims for malicious prosecution under the federal standard for qualified immunity. As that charge reveals, the trial court incorrectly instructed the jury, in conformance with the defendants' request to charge, that the defendants enjoyed the same immunity under both the plaintiff's common law claims and his § 1983 claim: "Our state Supreme Court has recognized that the state standard for governmental immunity is the same as the standards announced by the United States Supreme Court. The officers cannot be held liable unless it is found that they knowingly broke the law or, on the facts known by them at the time, had absolutely no basis for a belief in prosecution. If any reasonable officer could believe in probable cause, then you must find for the defendants." At trial, the plaintiff took exception to this charge. In addition to malice, "[a]n action for malicious prosecution . . . requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; [and] (3) the defendant acted without probable cause . . . . Zenik v. O'Brien, 137 Conn. 592, 595, 79 A.2d 769 (1951); Brodrib v. Doberstein, 107 Conn. 294, 296-98, 140 A. 483 (1928); McGann v. Allen, 105 Conn. 177, 185, 134 A. 810 (1926); 3 Restatement (Second), Torts (1977) § 653; W. Prosser, Torts (4th Ed. 1971) § 119." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982). We do not reach the issue of whether, for purposes of defeating common law qualified immunity, the definition of "malice" is limited to "a purpose other than that of bringing an offender to justice." Zenik v. O 'Brien, supra, 137 Conn. 595. The trial court's memorandum of decision provided: "This court finds Cartier dispositive of the issue of qualified immunity and the defendants' claim that they are entitled to qualified immunity as a matter of law." In this case, the factual issues properly left to the jury include, but are not limited to, whether the defendants knew or should reasonably have known that: (1) the contract was ongoing; (2) their police department had concluded in a prior investigation that the contract was ongoing; and (3) the department and various other town officials considered and consistently treated the contract as ongoing in nature. The determination of these factual issues is necessarily predicated on the determination of subsidiary facts, also properly left to the jury. For a discussion of these material factual issues see part III B and C of this opinion. Because the defense of qualified immunity has been construed as an immunity from suit, not a mere defense to liability; Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985); when there are no unresolved factual issues material to its applicability, it is preferable for the trial court to decide the issue of qualified immunity as a matter of law on a pretrial motion for summary judgment, or on a motion for a directed verdict. Oliveira v. Mayer, 23 F.2d 642, 649-50 (2d Cir. 1994); Warren v. Dwyer, supra, 906 F.2d 76. We note that the unchallenged jury charge also allowed the jury to consider the ultimate issue of whether it was objectively unreasonable for the defendants to believe that they had probable cause to arrest the plaintiff. This charge was proper according to the most recent decision of the Second Circuit Court of Appeals on this topic. See Oliveira v. Mayer, supra, 650 (where factual disputes concerning police conduct are revealed and "[tjhese disputes bear directly upon whether it was objectively reasonable for the officers to believe that they were acting lawfully . . . [t]he District Court should have let the jury (a) resolve these factual disputes and (b) based on its findings, decide whether it was objectively reasonable for the defendants to believe that they were acting within the bounds of the law when they detained the plaintiffs." [Citation omitted.]). The defendants argue that the trial court properly could have applied the correcting test, concluded that probable cause existed as a matter of law, and directed a verdict on the ground that there were no material issues of fact relating to the existence of probable cause. We, however, reject this alternative ground for affirming the trial court's judgment to set aside the verdict. See part III A of this opinion. Our resolution of this issue is consistent with our resolution of the defendants' fifth alternative ground for affirmance discussed in part III E of this opinion. An objective finding of probable cause at the conclusion of a Franks hearing does not foreclose the plaintiff from revisiting that issue at a civil proceeding if, by means of civil discovery, the plaintiff may be able to obtain additional evidence relevant to the issue of probable cause. At such a civil proceeding, the trial court would again have the opportunity to assess whether there are issues of fact material to the existence of probable cause that should be reserved for the jury's consideration. Because the plaintiff's § 1983 claim is supported by his common law claims for malicious prosecution; see Conway v. Mount Kisco, supra, 750 F.2d 214; the defendants' argument reaches all six counts of the complaint. Paragraph E 6 of the contract provides: "It shall be understood that any contract and/or agreement entered into by the Town of East Hartford pertaining to the specified lubrication service may be canceled by either party by providing the other party with at least sixty (60) days notice of intent to cancel such service." In their brief to this court, the defendants extend this argument to the plaintiff's common law malicious prosecution claims on the ground that this court should adopt the federal standard of qualified immunity as applicable to common law claims for malicious prosecution. Because we already have rejected the defendants' invitation to substitute the federal qualified immunity doctrine for our well established common law qualified immunity doctrine; see footnote 17; we address the defendants' argument only with respect to the plaintiff's civil rights claim. "The right not to be arrested or prosecuted without probable cause has . . . long been a clearly established constitutional right." Golino v. New Haven, supra, 950 F.2d 870. Despite the dissent's suggestion to the contrary, we do not hold the defendant police officers to the same standard we might hold an attorney specializing in contract law. For this reason, we do not decide this issue as a matter of law. Rather, we examine the evidence that a jury could have relied on to determine that it was not objectively reasonable for the defendant police officers to have believed they had probable cause to arrest the plaintiff. The dissent takes issue with our failure to consider certain evidence that weighs in favor of the objective reasonableness of the defendants' belief in probable cause. We do not dispute the principle that extrinsic evidence favorable to the defendants and known to them at the time of the arrests should be considered in determining the applicability of federal qualified immunity. The evidence to which the dissent refers, however, merely feeds factual disputes, properly left to the jury's resolution, that are already discussed in this opinion. In light of the jury's verdict, initially accepted by the trial court, we can presume that the jury resolved these factual disputes against the defendants so as to render the defense of federal qualified immunity unavailable to them. On appeal, we need only determine whether the jury's resolution of these factual disputes are reasonably supported by the evidence, which we have done in this opinion. See footnote 24. In their brief, the defendants discuss the common law defense of reliance on counsel solely in the context of its application to the plaintiff's state law malicious prosecution claims. This is consistent with the position the defendants took at trial. In their request to charge on this issue, titled "Probable Cause—Advice of Counsel," the defendants relied solely on Brodrib v. Doberstein, supra, 107 Conn. 296, which holds that a defendant's reliance on counsel can be a complete common law defense to an action for malicious prosecution. Although the defendants do not argue that the common law defense of reliance on counsel applies to the plaintiff's § 1983 claim, they do argue, and we recognize, that any reliance on the part of the defendants on the advice of the state's attorneys is a factor properly to be considered by the jury in assessing whether the defendants acted in an objectively reasonable fashion. See footnote 11. Section 1738 of title 28 of the United States Code (1988) provides in relevant part: "[judicial proceedings or copies thereof, so authenticated, [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State . . . from which they are taken." Practice Book § 4013 (a) (1) provides in relevant part: "If any appellee wishes to . . . (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant's preliminary statement of the issues. . . ." The defendants raised the claim of excessive damages in their original motion to set aside the verdict and in their first amended motion to set aside the verdict and for judgment notwithstanding the verdict. General Statutes § 52-216a provides in relevant part: "If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. . . ."

Katz, J. The principal issue on appeal is whether the Appellate Court properly affirmed the trial court's granting of the defendant's motion for summary judgment based on the exclusive remedy provisions of the Workers' Compensation Act (act). We hold that there is a genuine issue of material fact as to whether the plaintiffs injury was "substantially certain" to follow from his employer's conduct so as to satisfy the narrow exception to the exclusivity provisions of the act and to allow the plaintiff to pursue his common law remedy in a trial. We further hold that the plaintiff's previous collection of benefits under the act does not preclude his pursuit of this action. Accordingly, we reverse. The following facts are undisputed. The plaintiff, Alfonso Suarez, filed a complaint alleging that he had been severely and permanently injured while working for the defendant, Dickmont Plastics Corporation, when, while attempting to clear hot molten plastic out of a plastic molding machine, two of his right hand fingers became caught in the machine and were partially amputated. The plaintiff alleged that his injuries, which resulted in a permanent loss of function and use of his master hand and substantial scarring, were caused by the defendant's wilful and serious misconduct. The plaintiff further alleged, inter alia, that the defendant: (1) always required the plaintiff and other employees to clean the plastic molding machine while it was in operation; (2) refused to allow the plaintiff or other employees to use safer cleaning methods; and (3) refused to equip the machine with a protective cover or other device in order to prevent injuries to persons operating or cleaning it. The defendant moved for summary judgment claiming that, in the absence of proof by the plaintiff that the employer intended to injure the plaintiff, the exclusive remedy provisions of the act barred the plaintiff's claim. By affidavit, the defendant's president denied the plaintiff's allegations and maintained that he had not intended for the plaintiff to be injured. In his opposition to the motion, supported by his own deposition and the affidavit and attached opinion of Michael E. Shanok, a physical engineer, the plaintiff claimed that the defendant's intentional conduct was substantially certain to cause the injuries that occurred. At his deposition, the plaintiff testified that the defendant's foreman, although aware of the dangers involved, had told him that: (1) he could not use a vacuum cleaner to clean the hot material from the machine because it would waste material; (2) the machine could not be turned off during the cleaning because the operator would lose time; and (3) if he used the vacuum cleaner, he would be fired. In his report, Shanok described the equipment involved as a plunger type horizontal injection molding machine used to melt thermoplastic and thermoset rubber polymers into a mold through the action of a hydraulically operated plunger. Shanok further explained that the material is fed from a small, cylindrical hopper with a conical bottom directly into a feed chute. From the chute, the material falls into an injection chamber. From there, an injection plunger is pushed by a hydraulic ram through a barrel surrounded by electrical heating bands. As the plastic is melted within the barrel, it is further pushed into the mold. The mold is held closed by a damping system, also hydraulically activated. At the conclusion of the molding cycle, the plunger retracts, the mold opens and the molded part is ejected, whereupon the next molding cycle commences. Shanok's report further states that the feed chute should be vacuum cleaned when the material hopper is positioned away from the feed chute, so that raw plastic cannot be fed into the machine during cleaning. Nevertheless, the plaintiff alleges that the foreman had ordered him to clean up during the completion of production, while the machine was still operating, so that the employer could avoid paying personnel overtime. Pursuant to these orders, he was required to reach into the chute with his hand to remove the remaining plastic pellets in the feed chamber to avoid wasting material. On the day of the accident, the plaintiff claims that he had put his hand into the energized machine's feed chute while the machine was operating, thereby causing the plunger to move forward in the injection sleeve and partially amputate two of the plaintiff's right hand fingers. In addition, Shanok listed in his report several resulting violations of the Occupational Safety and Health Act (OSHA); 29 U.S.C. § 658 et seq.; General Industry Regulations; 29 C.F.R.; and deviations from the recommended requirements of the American National Standard for Safety Requirements for the Construction, Care and Use of Horizontal Injection Molding Machines. American National Standards Institute, B151.1-1976. In particular, Shanok noted that the defendant's alleged conduct violated accepted safety standards by requiring employees to insert their hands into the feed chute of an energized horizontal injection molding surface, adding that the "circumstances which existed at the time of the subject accident caused such action to be even more dangerous, because the hydraulic system was not interlocked to prevent actuation of the plunger and the control panel is so situated that the operator cannot see an individual who is standing at the maintenance platform." Shanok concluded that the defendant's actions "crossed the boundary between gross negligence and reckless disregard for the safety of its employees," that "there was a total absence of any sign . . . that even the slightest consideration for [the plaintiff's] safety had been undertaken," that remedying even one of the numerous unsafe actions could have prevented the injury, and that it was clear from the combination of factors that the plaintiff's injury "would be, sooner or later, a predictable and probable event." The trial court granted the defendant's motion for summary judgment having determined that the plaintiff's "documentary proof [fell] short of the standard necessary to entitle him to benefit from the exception to the exclusivity provisions of the Connecticut Workers' Compensation Act." The plaintiff then filed a motion for articulation to ascertain whether the trial court had granted the defendant's motion for summary judgment on the grounds that the "substantial certainty" standard relied upon by the plaintiff was not controlling or because the plaintiff had not demonstrated a genuine issue of material fact as to whether he could satisfy the substantial certainty test. The trial court denied the plaintiffs motion. The plaintiff thereafter appealed the granting of the defendant's motion for summary judgment to the Appellate Court. The Appellate Court held that the plaintiff's factual alle gations could not support a determination either that his employer had intended to harm him, or that his employer had believed the injury that occurred was substantially certain to follow from its acts or conduct. Suarez v. Dickmont Plastics Corp., 30 Conn. App. 630, 635, 621 A.2d 1356 (1993). Accordingly, that court affirmed the judgment. Id., 636. We granted the plaintiffs petition for certification limited to the following issues: "(1) Whether an individual may bring a civil action for damages against his employer for injuries sustained at work where such injuries were caused by work conditions intentionally created by the employer which made the injuries substantially certain to occur?" and "(2) Whether there is a genuine issue of material fact as to whether the employer's intentional actions created a situation in which the employee's injuries were substantially certain to occur?" Suarez v. Dickmont Plastics Corp., 225 Conn. 926, 625 A.2d 827 (1993). At the outset, we note the standard of review of a trial court decision granting a motion for summary judgment. Pursuant to Practice Book § 384, summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment " 'has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law'"; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). We consistently have interpreted the exclusivity provision of the act, General Statutes § 31-284 (a), as a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). This case presents the question of whether the complaint, deposition and affidavits submitted in opposition to the defendant's motion for summary judgment together sufficiently raise the genuine issue of material fact of whether the defendant employer engaged in an intentional tort or in wilful or serious misconduct, necessary to allow an employee to bring a common law tort action against his employer and thereby avoid the exclusivity of the act. Jett v. Dunlap, supra, 179 Conn. 215, is the seminal case in which we articulated this narrow exception and held that the exclusivity of the act would not be eroded when the employee alleges an intentional tort by his supervisor. In Jett, we recognized the distinction between the actor who is "merely a foreman or supervisor," to which attribution of corporate responsibility for his or her conduct is inappropriate, and the actor who "is of such a rank in the corporation that he [or she] may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity," to which attribution of corporate responsibility is appropriate. Id., 219. This distinction, relying on identification and not agency, was based entirely on status and not on conduct. The pleadings in Jett, however, did not allege that the employer had directed or authorized the subject conduct or that the actor could be deemed the "alter ego" of the defendant's organization. Rather, the plaintiff alleged only that the employer had condoned the supervisor's offensive conduct after the fact. Because the injury, if any, resulted not from the employer's subsequent ratification, but rather from the employee's precedent intentional tort, we held that such condoning was not an intentional tort and did not relate back. In this case, the plaintiff alleged that it was the defendant whose wilful and serious misconduct caused his injuries. Moreover, in his deposition, the plaintiff referred to the foreman's warning that "[i]f they see you, they fire you," in reference to what would have happened had he refused to clean the energized machine manually. The defendant denies requiring the plaintiff to clean the machine while it was in operation, although notably, there is no denial regarding the prohibition against using vacuums, as opposed to hands, to clean the machine. This question of credibility between the parties, however, raises an issue of fact which the trial court cannot resolve on a motion for summary judgment. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). Another significant case relied upon by the parties is Mingachos v. CBS, Inc., 196 Conn. 91, 102, 491 A.2d 368 (1985), in which we further delineated the scope of the exception to the act. In that case we declined to "extend judicially the [Jett v. Dunlap, supra, 179 Conn. 215] exception to § 31-284 to include injuries to employees resulting from 'intentional,' or 'wilful,' or 'reckless' violations by the employer of safety standards established pursuant to federal and state law, such as OSHA." Id., 100. The plaintiff Mingachos had alleged that the injuries were caused by the defendant's violations of certain Connecticut statutory regulations and OSHA regulations, that said conduct was, as to the first count, " 'wilful and intentional and created a hazardous condition,' " and that the violations were, as to the second count, " 'reckless, and created a hazardous condition.' " Id., 95. The plaintiff further alleged, as to both counts, that the defendant had failed to warn its employees of these violations and had failed to report them to certain governmental agencies as required by law, and that these failures were " 'intentional, malicious, and in willful and wanton disregard of the health of the plaintiff's decedent....'" Id., 112. In opposition to the motion for summary judgment, however, the plaintiff submitted only one affidavit, signed by his attorney, that referred to certain allocated, unverified OSHA records and that averred that the defendant had known of the dangerous ventilation condition but failed to correct it. Thus, the sole affidavit relied on by the plaintiff lacked personal knowledge of the affiant, the absence of which can be fatal. Hartford Federal Savings v. Aetna Casualty & Surety Co., 25 Conn. Sup. 418, 427, 206 A. 650 (1964). Moreover, there was nothing on the record to suggest that the plaintiff had put into dispute the statements of the defendant's employees in their affidavits that each had had no intent to injure the plaintiff. Accordingly, we affirmed the trial court's granting of the summary judgment motion. In defining the operative terms, we stated in Mingachos v. CBS, Inc., supra, 196 Conn. 101, that "intent refers to the consequences of an act . . . [and] denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it. 1 Restatement (Second), Torts § 8A (1965)." (Citation omitted; internal quotation marks omitted.) "A result is intended if the act is done for the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue." 1 F. Harper & F. James, Torts (1956) § 3.3, p. 216. An intended or wilful injury "does not necessarily involve the ill will or malevolence shown in express malice," but it is insufficient "to constitute such an [intended] injury that the act . . . was the voluntary action of the person involved." Mingachos v. CBS, Inc., supra, 102. Both the action producing the injury and the resulting injury must be intentional. Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). "[Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985)." (Internal quotation marks omitted.) Mingachos v. CBS, Inc., supra, 102. The known danger involved must go from being "a foreseeable risk which a reasonable man would avoid and become a substantial certainty." W. Prosser, Torts (4th Ed. 1971) § 8, p. 32. The substantial certainty test differs from the true intentional tort test but still preserves the statutory scheme and the overall purposes of the act. The problem with the intentional tort test, i.e., whether the employer intended the specific injury, "appears to be that it allows employers to injure and even kill employees and suffer only workers' compensation damages so long as the employer did not specifically intend to hurt the worker." Beauchamp v. Dow Chemical Co., 427 Mich. 1, 25, 398 N.W.2d 882 (1986). Prohibiting a civil action in such a case "would allow a corporation to 'cost-out' an investment decision to kill workers." Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St. 2d 608, 617, 433 N.E.2d 572 (1982) (Celebrezze, J., concurring). The "substantial cer tainty" test provides for the "intent to injure" exception to be strictly construed and still allows for a plaintiff to maintain "a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself." Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 197 (9th Cir. 1989). The issue then is whether the defendant established as a matter of law that the plaintiffs evidence of the defendant's refusal to allow employees to vacuum the machinery after it has been shut down failed to raise an issue of fact that such conduct was substantially certain to result in injury. We are obliged to accept as true all well pleaded facts and the plaintiff's evidence offered in opposition to the defendant's motion, and to determine whether the plaintiff's claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. The defendant employer argues that it satisfied its burden of demonstrating that its conduct did not carry with it, as a substantial certainty, the dangers that in fact resulted and that the dangers were known to the defendant. We disagree. Intent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 216-17, 477 A.2d 988 (1984). Thus, whether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury. This case undoubtedly raises an issue of material fact regarding the defendant's conduct toward the plaintiff and the defendant's knowledge that the plaintiff's injury was substantially certain to occur. Here, a jury could reasonably infer, from all the circumstances viewed in the light most favorable to the plaintiff, that the defendant's conduct constituted more than a mere failure to provide appropriate safety or protective measures, and that the plaintiff's injury was the inevitable and known result of the actions required of him by the defendant. " 'A specific intent to produce injury is not the only permissible inference to be drawn from [the] defendant's [conduct], but it is one that a jury should be permitted to consider. It is for the finder of fact, not the court on summary judgment, to determine what inferences to draw. . . .' " Gulden v. Crown Zellerbach Corp., supra, 890 F.2d 197. "[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Batick v. Seymour, 186 Conn. 632, 646-47, 443 A.2d 471 (1982). We are not prepared to say as a matter of law that the refusal to allow employees to vacuum the machinery after it has been shut down did nothing more than merely set the stage for an accidental injury later, or that it was no more than merely a wilful failure to furnish a safe place to work. Under the circumstances of this case, whether the intentional conduct in which the defendant engaged was tantamount to a "deliberate infliction of harm comparable to an intentional left jab to the chin"; 2A A. Larson, Workmen's Compensation (1990) § 68.13, p. 13-71; is a question best left to the jury. Notably, several other appellate courts also have decided that it is for the jury to evaluate whether the employer's intentional conduct allows the inference that the employer knew that the occurrence of the injury was a substantial certainty. See, e.g., Gulden v. Crown Zellerbach Corp., supra, 890 F.2d 197 (allegations that the defendant was aware that the plaintiffs' contact with PCBs would injure them but nevertheless ordered them to perform their task in a manner requiring them to initiate and maintain such contact were sufficient to allow a jury to decide whether to draw an inference of deliberate intent to injure from those facts); O'Brien v. Ottawa Silica Co., 656 F. Sup. 610, 611-12 (E.D. Mich. 1987) (despite knowledge that the plaintiff was contracting respiratory disease, the employer's failure to take precautions to inform the plaintiff of reported health risks might permit an inference that the employer knew injury was substantially certain to occur); Kachadoorian v. Great Lakes Steel Corp., 168 Mich. App. 273, 277, 424 N.W.2d 34 (1988) (the plaintiff's allegations that the plaintiff's decedent had been directed by his foreman to drive his slag-moving machine under a vessel containing molten steel during a blowing process that frequently caused overflow spills of molten steel and that the defendant had disciplined employees for refusing to drive under the vessel during the blowing process, thereby forcing the employee to choose between the substantial certainty of injury and losing his job, were enough to raise an issue of fact as to the defendant's intent); Kielwein v. Gulf Nuclear Inc., 783 S.W.2d 746, 747-48 (Tex. App. 1990) (whether the employer's failure to take appropriate measures to protect the plaintiff during the cleanup operation of a radiation spill was substantially certain to cause the plaintiff injury and was substantially certain to result in radioactive contamination is "uniquely a fact question for the trier of fact after considering all the relevant evidence"). The defendant also claims, as an alternate ground for affirming the trial court's judgment, that the plaintiff's application for and receipt of workers' compensation benefits bars him from any further recovery against the defendant. According to the defendant, the plaintiff's receipt and retention of benefits under the act constitutes an admission that the incident falls within the scope of the act. As authority for its argument, the defendant cites to cases that have interpreted General Statutes § 31-284 to exclude further recovery from the employer by an employee who has received workers' compensation benefits. See Horney v. Johnson, 167 Conn. 621, 622, 356 A.2d 879 (1975); Pagani v. BT II Ltd. Partnership, 24 Conn. App. 739, 744, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991); Ross v. New Haven, 19 Conn. App. 169, 171, 561 A.2d 457 (1989); Hatcher v. Bullard, Co., 39 Conn. Sup. 250, 257, 477 A.2d 1035 (1984), aff'd, 4 Conn. App. 260, 493 A.2d 908 (1985). These cases, however, do not stand for the proposition advanced by the defendant. In Ross v. New Haven, 19 Conn. App. 169, supra, the injured employee was seeking to collect uninsured motorist benefits from the city employer. In Horney v. Johnson, supra, 167 Conn. 621, the injured employee was seeking to bring a common law negligence claim against his corporate employer. In Pagani v. BT II Ltd. Partnership, supra, 24 Conn. App. 739, the plaintiffs passive acceptance of benefits paid by the defendant's workers' compensation carrier was held not to preclude her from maintaining a civil action for a personal injury that she claimed did not arise out of or in the course of her employment. In Hatcher v. Bullard Co., supra, 39 Conn. Sup. 257 n.2, the trial court, in dictum, interpreted the act to preclude an action for intentional, wilful or wanton violations of safety regulations. The effect of the defendant's argument would be to force an injured employee to elect, at the outset, whether to pursue his or her remedies under the act, or to take his or her chances later at trial. The defendant's argument finds no support in the act itself or in our case law, and, if successful, would undermine the policies underlying the act. Indeed, judicially imposing the election of remedies doctrine in this case would, in all practical effect, insulate employers from the consequences of their intentionally harmful conduct toward their employees. We have little doubt that most employees, who had been injured in the course of their employment by conduct of their employers that would in a subsequent lawsuit be found to have been intentionally harmful to them would not undergo the financial privations of foregoing workers' compensation benefits in order to litigate their tort actions against their employers years later. The effect would, in all likelihood, be that the tort action would be a remedy in name only, and that the intentionally harmful conduct would go unpenalized. The act was designed to hold the employer liable for job related injuries, without regard to fault; Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); so that employees may obtain relatively quick and certain compensation, while employers generally avoid the risk and expense of litigation stemming from common law tort actions. Mingachos v. CBS, Inc., supra, 196 Conn. 97. The principle of exclusivity is not eroded, however, when the plaintiff alleges an intentional tort, in which case an employee is permitted to pursue remedies beyond those contemplated by the act. Although an injured employee's remedies provided by the act are exclusive and cannot be supplemented with common law damages, there is no provision in the act that requires the injured employee to make an election between even mutually exclusive remedies. Although courts in some jurisdictions hold that the collection of workers' compensation benefits bars a damage suit, others take a less restrictive approach. In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 186, 501 A.2d 505 (1985), for example, the New Jersey Supreme Court held that the doctrine of election of remedies did not bar the plaintiffs, who had filed claims under the New Jersey Workers' Compensation Act, from pursuing a civil action for intentional torts even though it was undisputed that the plaintiffs' claims were compensable under that act. The court held that "the best approach is to allow a plaintiff to process his [or her] workers' compensation claim without forfeit ing the opportunity to establish that he [or she] was injured as a result of" intentionally wrongful conduct. Id., 187. Additionally, to the extent that a damage award would serve as a double recovery, the court held that the employer would be entitled to offset any compensation benefits previously paid against a damage award. Id. Although the doctrine of election, to the extent that it is designed to prevent double redress for the same injury, has a sound basis, it can also serve to destroy all rights under compensation acts without justification. "Workmen's compensation is above all a secur ity system; a strict election doctrine transforms it into a grandiose sort of double-or-nothing gamble. Such gambles are appealing to those who still think of the judicial process as a glorious game in which formal moves and choices are made at peril, and in which the ultimate result is spectacular victory for one side and utter defeat for the other. The stricken workman is in no mood for this kind of play, and should not be maneuvered into the necessity for gambling with his rights, under the guise of enforcing a supposed penalty against the employer." 2A A. Larson, supra, § 67.31, p. 12-158. Because the employer can be reimbursed by way of a setoff, double redress is avoided. This approach is not without precedent. See, e.g., Whitney-Fidalgo Seafood, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976) (court held that mere acceptance of workers' compensation benefits by the employee did not constitute an election and therefore the employee could bring his common law suit, but payments made would be applied against any damage judgment he obtained); Worthington v. Industrial Commission of Arizona, 85 Ariz. 310, 316, 338 P.2d 363 (1959) (court held that receipt of workers' compensation benefits did not cause a widow to lose her rights to bring a wrongful death action although the sum received in the tort settlement could be offset against the amount of any compensation recovery); Mike v. Aliquippa, 279 Pa. Super. 382, 393, 421 A.2d 251 (1980) (court held that any compensation benefits that had been accepted would be duly credited against any recovery from the tort action to prevent any possibility of double recovery). We are not unmindful that our opinion today may trigger concerns among employers regarding their potential exposure to claims on two fronts. We do not believe that our holding, however, will encourage significant additional litigation, for only in those rare instances when an employer's conduct allegedly falls within the very narrow exception to the act will such litigation result. In those very few instances, we believe that it is better to allow employees to accept the well conceived and often vital benefits of the act rather than to gamble all on a potential recovery that is not likely to provide compensation until considerably later. We think the setoff provisions used routinely by our judges in other areas provide adequate protection for employers on those rare occasions where a suit follows recovery under the act. The judgment of the Appellate Court is reversed and the ease is remanded to that court for further proceedings. In this opinion Berdon, Norcott and Palmer, Js., concurred. General Statutes § 31-284 provides in pertinent part: "basic rights AND LIABILITIES. CIVIL ACTION TO ENJOIN NONCOMPLYING EMPLOYER PROM ENTERING INTO EMPLOYMENT CONTRACTS. NOTICE OF AVAILABILITY OF COMPENSATION. (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation." Shanok explained in his report that, as opposed to OSHA regulations, which require compliance by law, "[t]he American National Standard is a recommended practice which was developed through the auspices of the Society of the Plastics Industry, Inc., and is in such general use in the plastics industry that it can be considered to be an [authoritative] standard for the custom and practice of maintaining safety in the industry." At the hearing on the motion for summary judgment, the trial court expressed doubt as to whether the plaintiff had to prove that his employer intended harm or whether it was sufficient to prove that his employer knew that injury was substantially certain to occur in order to prevail under this common law remedy. Following the trial court's denial of his motion for articulation, the plaintiff filed a motion for review with the Appellate Court. The Appellate Court granted the motion but denied the relief requested. The defendant also argues for the first time that Shanok's report may not be considered as evidence because it "is simply a hearsay statement, without foundation of competency as an 'expert' opinion." We disagree. Affidavits must be by persons who would testify to their contents at trial; Practice Book § 381; however, there is nothing on this record to suggest that Shanok could not testify regarding his objective findings as contained in his report as an expert or that the trial court ever questioned his competence. There is no reason for this court to be the first to engage in such an inquiry. Moreover, because the defendant's allegations "require the plaintiff to undertake the difficult challenge of providing evidence, in advance of trial, of the mental state of the defendant . we are willing to take into account whatever relevant information the plaintiff was able to provide. See Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982)." Conference Center Ltd. v. TRC, 189 Conn. 212, 217, 455 A.2d 857 (1983). This would naturally include Shanok's description of the machinery and the cleaning process the plaintiff was required to perform. The trial judge will be free to make clear to the jury the differences between intentional conduct that is substantially certain to result in injury and conduct that merely carries with it a foreseeable risk. He or she also will be free to comment on the evidence so that the distinction is clearly before the jury where it belongs. See, e.g., Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241, 408 N.E.2d 198 (1980); Neff v. Baiotto Coal Co., 361 Mo. 304, 307, 234 S.W.2d 578 (1950); Biner v. Dynalectron Corp., 85 Nev. 539, 540, 458 P.2d 616 (1969); Gillespie v. Vecenie, 292 Pa. Super. 11, 16-17, 436 A.2d 695 (1981). This is distinct from the issues of whether an unsuccessful damage suit bars a compensation claim or whether an unsuccessful compensation claim bars a damage suit. The majority of courts have held that in neither instance will the injured employee be estopped. See 2A A. Larson, supra, § 67.31, pp. 12-152-12-156 nn.88 and 89, and cases cited therein. According to those cases, the injured employee was not forced to elect between two valid but inconsistent remedies. Rather, he only mistakenly pursued a misconceived right when only one right in fact existed. Id., § 67.32, p. 12-159. Of those courts that follow the election theory, many, however, will enforce it only where the court is satisfied that the employee had " '[f]irst full knowledge of the nature of the inconsistent rights and the necessity of electing between them [and sjecond, an intention to elect manifested, either expressly or by acts which imply choice and acquiescence.'" McAlester Corp. v. Wheeler, 205 Okla. 446, 448, 239 P.2d 409 (1951). Mere acceptance of some compensation benefits by an injured employee will not constitute an election in the absence of some evidence of both his or her conscious intent to elect the remedy under the compensation statutes and to waive his or her other rights. 2A A. Larson, supra, § 67.35, pp. 12-182-12-189; see Martin v. United States, 566 F.2d 895 (4th Cir. 1977); Whitney-Fidalgo Seafood, Inc. v. Beukers, 554 P.2d 250 (Alaska 1976); Baker v. Redystick Products Co., 674 P.2d 1011 (Colo. App. 1983); Bolinger v. Kiburz, 270 N.W.2d 603 (Iowa 1978); Conder v. Hayden, 335 S.W.2d 909 (Ky. 1960); Allman v. Great Lakes Dredge & Dock Co., 29 App. Div. 2d 605, 285 N.Y.S.2d 630 (1967). Courts that apply the election of remedies doctrine have examined various issues regarding its application, including, but not limited to: whether it should matter if recovery under the act is claimed before, or after, a civil suit is commenced; whether the ability to collect money awarded by a civil judgment should have any impact; and whether it should matter if the collection of benefits under the act resulted from an award, voluntary agreement or consensual conduct in the absence of a claim. See generally 2A A. Larson, supra, § 67.30-67.36. This state has obviously already determined that compensation protection is a good policy for industry generally. See 1 F. Harper & F. James, Torts (1956) pp. xlii-xliii. To the extent that an election requirement can motivate employers to risk common law liability, it should be discouraged. To the extent that the election requirement may interfere with an injured employee receiving compensation for his or her injuries, it should be avoided. See, e.g., General Statutes § 52-225a, which provides: "reduction IN ECONOMIC DAMAGES IN PERSONAL INJURY AND WRONGFUL DEATH ACTIONS FOR COLLATERAL SOURCE PAYMENTS, (a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1,1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1,1985, and prior to October 1,1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant's economic damages attributable to his percentage of negligence pursuant to section 52-572h. "(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment. "(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death."

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 409 (AC 11681), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 944 (AC 12061), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 126 (AC 12053), is denied.

Peters, C. J. In this companion case to Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), the dis-positive issue is the constitutionality of General Stat utes § 52-273 insofar as that statute deprives this court of subject matter jurisdiction over a writ of error brought to review the denial of a petition of habeas corpus after the habeas court has denied certification to appeal. We conclude that the statute passes constitutional muster and that the writ of error must, therefore, be dismissed. The plaintiff in error, Richard T. Carpenter (plaintiff), filed a revised petition for a writ of habeas corpus to challenge the legality of his detention by the defendant in error, Larry R. Meachum, commissioner of correction (state), pursuant to his 1990 conviction of the crime of manslaughter in the first degree. He alleged that he had been denied his constitutional right to effective assistance of trial counsel as guaranteed by the sixth and fourteenth amendments to the United States constitution. After an evidentiary hearing, the habeas court denied the petition, concluding that the plaintiff had failed to prove either that his trial counsel had rendered ineffective assistance, or that, even if the representation had been ineffective, it was probable that, but for that ineffectiveness, a different result would have been realized. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). The habeas court thereafter denied the plaintiffs petition for certification to appeal. Without attempting to challenge the validity of this denial, the plaintiff then filed a writ of error in this court. Pursuant to his writ of error, the plaintiff contends that the judgment of the habeas court should be set aside because that court improperly excluded relevant evidence and improperly rejected his claim of ineffective assistance of counsel. While countering these contentions on their merits, the state also maintains that, for two reasons, both grounded in § 52-273, we lack subject matter jurisdiction over the writ of error in this case. First, the state contends that the plaintiff may not bring a writ of error because, under the second sentence of § 52-273, "[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal." Second, the state contends that the writ of error must be dismissed as untimely because, contrary to the first sentence of § 52-273, the plaintiffs writ was not "allowed and signed within two weeks after the rendition of the judgment or decree complained of." We agree with the state's first jurisdictional claim and, therefore, need not reach the other issues. In Simms v. Warden, supra, 229 Conn. 178, we have today concluded that, as a matter of statutory construction, § 52-273 deprives this court of subject matter jurisdiction to hear a writ of error challenging the propriety of a judgment denying a petition for a writ of habeas corpus regarding a criminal conviction, when the habeas court has denied the petitioner's request for certification to appeal. In this case, besides reiterating the statutory argument that we rejected in Simms v. Warden, supra, the plaintiff further contends that it is unconstitutional for the legislature to limit this court's authority to decide any writ of error filed in conformity with the rules of the Practice Book. Before we consider the merits of the plaintiff's constitutional argument, we must determine whether the plaintiff's claims to relief fit within the terms of the writ of error that we have enacted pursuant to our rule-making authority. Practice Book § 4143 (b), on which the plaintiff relies for jurisdiction to proceed in this court, does not provide unlimited authority to bring to this court a writ of error in habeas corpus cases. Section 4143 (b) allows a petitioner in a habeas corpus proceeding who has been denied certification to appeal to pursue a writ of error only with respect to issues that "do not present any federal question cognizable by the federal district court." This limitation presents a difficulty to the plaintiff in this case because his substantive claim in the habeas court, and in this court, is that he was deprived of the assistance of effective counsel under the sixth and fourteenth amendments to the United States constitution. The plaintiff maintains, nonetheless, that his evidentiary claim entitles him to invoke § 4143. He argues that his evidentiary claim arises as a matter of state law and that this evidentiary claim is both independent of and antecedent to the federal question of ineffective assistance of counsel. We doubt that the drafters of § 4143 envisaged the administrative complexities that such a bifurcation of habeas appeals would entail. For the purposes of the present proceedings, however, we will assume that the plaintiff's articulation of an evidentiary claim would suffice to permit him to have recourse to Practice Book § 4143 if that provision were not inconsistent with General Statutes § 52-273. We turn, therefore, to the merits of the plaintiff's constitutional claim that state constitutional principles rooted in the separation of powers established in the Connecticut constitution of 1818 deprive the legislature of authority to limit this court's jurisdiction to determine when we will hear a writ of error. Two cases are central to the plaintiff's argument. The first is Szarwak v. Warden, 167 Conn. 10, 355 A.2d 49 (1974), in which we restated and applied state constitutional limitations on the authority of the legislature to impair the jurisdiction of the constitutional courts. The second is State v. Assuntino, 173 Conn. 104, 376 A.2d 1091 (1977), in which we concluded that this court has the authority to adjudicate a common law writ of error even though the legislature has not affirmatively authorized such a writ of error to be brought. These cases do not sustain the plaintiff's claim. In Szarwak v. Warden, supra, 167 Conn. 10, we held that state constitutional principles of separation of powers prevent the legislature from conferring broad criminal jurisdiction on a nonconstitutional trial court in derogation of the constitutional jurisdiction of the Superior Court. We reiterated the position that we had taken in Walkinshaw v. O'Brien, 130 Conn. 122, 127, 32 A.2d 547 (1943), that the constitution of 1818 preserved "the essential characteristics" that this state's constitutional courts then possessed. We quoted with approval the statement in Walkinshaw v. O'Brien, supra, 142, that "[i]t is entirely clear . . . that the legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts." Szarwak v. Warden, supra, did not purport, however, to identify "the essential characteristics" of this constitutional court. In State v. Assuntino, supra, 173 Conn. 104, we permitted the state to bring a writ of error to contest dismissal of criminal charges by the Court of Common Pleas, for which the legislature had provided no right of appeal. Recognizing inconsistencies in earlier Connecticut cases about whether a writ of error was purely statutory, we concluded that "the common-law writ of error was adopted by Connecticut as part of its own common law." Id., 110. No statute expressly purported to limit the state's authority to bring a writ of error; id.; and we concluded that the legislature had not impliedly intended to do so. Id., 106. Accordingly, we held that it was "unnecessary for this court to consider whether the jurisdiction to hear such a writ is an essential attribute of the constitutional role of this court . . . Id., 110. Assuntino, therefore, did not set constitutional limits on the legislature's authority to determine this court's jurisdiction over writs of error. The constitutional question raised by this case is narrower than the question that remains unanswered by State v. Assuntino, supra, 173 Conn. 104. We need not decide to what extent the legislature may constitutionally encroach on the writ of error as it existed at common law. The only question before us is whether the legislature may constitutionally limit recourse to a writ of error to review a judgment in a habeas corpus proceeding concerning the validity of a criminal conviction. We are persuaded that, although a writ of habeas corpus existed at common law, the denial of such a writ was not reviewable either on appeal or by writ of error. The plaintiff has cited no case, and our research has disclosed none, in which this court or its historical antecedents, at or near the time of the adoption of the Connecticut constitution of 1818, reviewed the merits of a trial court's denial of a writ of habeas corpus. Perhaps the closest analogy may be found in a series of early nineteenth century cases concerning appeals sought to be taken from trial court rulings denying a petition for a new trial. These cases do not support the plaintiff. They uniformly held that, because a petition for a new trial calls upon the trial court to exercise its discretion, a writ of error does not lie on a judgment or decree refusing to grant such a petition. Magill v. Lyman, 6 Conn. 59, 60 (1825); White v. Trinity Church, 5 Conn. 187, 188 (1823); Lewis v. Hawley, 1 Conn. 49, 50 (1814); Granger v. Bissell, 2 Day (Conn.) 364, 368 (1806). In the absence of dispositive state cases about Connecticut common law practices, State v. Assuntino, supra, 173 Conn. 107, enjoins us to "look back to the practice of England." Professor Yackle states that, "[a]t common law, there was no right of appeal from judgments in habeas corpus. [Ex parte Savarkar, 2 K.B. 1056 (1910); R. Sharpe, The Law of Habeas Corpus (1976) p. 195; G. Longsdorf, 'Habeas Corpus: A Protean Writ and Remedy,' 8 F.R.D. 179, 189-90 (1948)]. . . . The reason for the lack of appellate process is difficult to ascertain, but it appears that the unavailability of the writ of error in habeas cases may have stemmed from an understanding that habeas was a summary proceeding, even interlocutory in nature. Accordingly, appeal was denied in order to avoid unnecessary delays in reaching final judgment in the case in chief—usually the criminal prosecution of the petitioner." L. Yackle, Postconviction Remedies (1981) § 158, pp. 581-82. Professor Yackle further notes that "[e]arly state court decisions in this country adopted the British understanding, viewing appellate review in habeas cases as wholly a creature of statute. [See note, J. Crim. L. Criminology and Police Sci. 277 (1936)]. Congress apparently took a similar position regarding the federal writ. Indeed, the Judiciary Act of 1789 neglected to provide for appellate review of habeas proceedings and, instead, restricted the writ of error or appeal to cases in which a sum of money was at stake. . . . [I]t is generally agreed that appellate review was first introduced by the Act of 1867, which also extended the reach of the writ to prisoners held in state custody." Id., p. 582. A series of late nineteenth century Connecticut cases confirm the accuracy of Professor Yackle's observation with regard to the limitations of the common law of habeas corpus in Connecticut and the implementation of appropriate procedures by statute. The first discussion that we have found in our case law concerning a right to appeal from a judgment rendered pursuant to a writ of habeas corpus with respect to a criminal conviction is Yudkin v. Gates, 60 Conn. 426, 22 A. 776 (1891). That case held that appellate jurisdiction to hear such an appeal depended upon compliance with the requirements of General Statutes (1888 Rev.) § 1129. Id., 427. As we explained in State v. Caplan, 85 Conn. 618, 623-24, 84 A. 280 (1912), § 1129 had been enacted in 1882 to provide a general right of appeal for any questions of law thereafter arising in any trial court. There is, therefore, nothing in our case law to suggest that either a common law or statutory right to appellate review of a habeas judgment existed before the enactment of § 1129 in 1882. Other late nineteenth century cases may help to explain the absence of an earlier appellate remedy for review of habeas corpus proceedings. These cases emphasize the limited scope of the common law writ of habeas corpus in Connecticut. In In re Bion, 59 Conn. 372, 390-92, 20 A. 662 (1890), this court observed that the scope of relief pursuant to a writ of habeas corpus precluded review of mere errors and irregularities of procedure, and focused instead on alleged claims concerning the jurisdiction of the court and its authority to impose the sentence at issue. Pursuing that theme further, in Scott v. Spiegel, 67 Conn. 349, 35 A. 262 (1896), we cited Swift's Digest for the proposition that "in cases of habeas corpus, by the common law, the 'truth of the return cannot be contested, and there is no remedy for the party aggrieved, but an action on the case for the false return, or by information, or indictment in the name of the public.' . . . 'As the remedy by the common law is very imperfect, it has been supplied in this State by statute.' " Id., 357; see 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) pp. 568-69. We specifically noted that, to correct these common law imperfections, "[i]n 1815, the legislature of this State had provided for pleadings and procedure in cases of habeas corpus, by an enactment, one section of which has been continued without change in every Revision to this time." (Emphasis added.) Scott v. Spiegel, supra, 357-58; see also Whitten v. Spiegel, 67 Conn. 551, 553, 35 A. 508 (1896) (petitioner could not succeed in appeal from denial of writ of habeas corpus because parol evidence was inadmissible to challenge validity of indictment). In light of these precedents, we are persuaded that, at common law in Connecticut in 1818, neither an appeal nor a writ of error would have been available to review the denial of a writ of habeas corpus in the circumstances of the present case. We have found nothing in the case law or in the secondary literature to demonstrate that Connecticut's long history of recognizing the significance of a right to counsel; see State v. Stod dard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988); was ever translated into a common law right to mount a collateral attack on a criminal conviction, through use of a writ of habeas corpus, for lack of effective assistance of counsel. Indeed, as a matter of federal law, that connection was not articulated until McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 663 (1970). The plaintiffs attack on § 52-273 as unconstitutionally impairing this court's authority to hear a writ of error in habeas corpus cases has, at best, not been affirmatively established. We do not declare statutes to be unconstitutional on such a basis. To the contrary, "[bjecause a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt." Calfee v. Usman, 224 Conn. 29, 33, 616 A.2d 250 (1992); Sassone v. Lepore, 226 Conn. 773, 778, 629 A.2d 357 (1993). To summarize, we conclude that, since 1815, the General Assembly has enacted statutes to provide for pleadings and procedures in cases of habeas corpus challenging the validity of a criminal conviction. This history furnishes a constitutional basis for the General Assembly's proper exercise, in 1882, of its legislative authority to enact § 1129 granting a right to appeal in habeas corpus proceedings. Having constitutionally granted a right to appeal in 1882, the General Assembly did not impair "the essential nature or jurisdiction of this court" when it qualified the right to appeal to this court by enacting § 52-470 (b) in 1957. In habeas corpus proceedings, therefore, it was equally constitutional for the General Assembly to limit the right to obtain appellate review through a writ of error, under § 52-273, by excluding cases "which might have been reviewed by process of appeal." The writ of error is dismissed. In this opinion Borden and Norcott, Js., concurred. General Statutes § 52-273 provides: "writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal." The plaintiff was convicted of the crime of murder in violation of General Statutes § 53a-54a in connection with the death of a young child as a result of head trauma and a skull fracture. On direct appeal, this court set aside the murder conviction because of a lack of sufficient evidence to establish the plaintiff's intent to kill. We concluded that the plaintiff was guilty of the lesser included crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990). On a second direct appeal, this court upheld the trial court's judgment resentencing the plaintiff to a term of imprisonment of twenty years. State v. Carpenter, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992). The plaintiff claimed that he had not received the minimal level of competent representation necessary to comply with federal constitutional law because his trial counsel had allegedly failed: (1) to conduct a proper pretrial investigation; (2) to seek by motion the disclosure of records in the possession of other state agencies that would have substantially aided his defense; and (3) to request jury instructions on lesser included offenses. As in Simms v. Warden, supra, 229 Conn. 178, this issue is a matter of first impression. Since the particular issue raised in the two cases has never previously been addressed by this court specifically, there is no basis for concluding that legislative inaction ratified our construction of the statute. See id., n.12. The plaintiff has not raised any claim that constitutional principles of due process require an unconditional right to appeal on questions, such as ineffective assistance of counsel, that cannot be raised on direct appeal.

Heiman, J. The defendant appeals from a judgment of conviction, following a conditional plea of nolo contendere, of one count of operating a motor vehicle while his nonresident operator's privileges were under suspension in violation of General Statutes § 14-215. On appeal, the defendant claims that the trial court improperly determined that he was subject to the enhanced penalties of General Statutes § 14-215 (c). The following facts are relevant to this appeal. The defendant holds a valid Vermont driver's license. On April 11, 1991, the defendant's Connecticut nonresident operator's privileges were suspended for six months based on his refusal to take a blood alcohol test pursuant to General Statutes § 14-227b. The defend ant became eligible to reinstate his Connecticut operating privileges on October 11,1991, but failed to take the necessary administrative steps to restore those privileges. On January 11,1992, the defendant was stopped by Officer Peter Borysevicz of the Manchester police department on Spencer Street in Manchester when the defendant failed to signal when changing lanes. A motor vehicle department check disclosed that the defendant's operating privileges had been suspended. The defendant was thereafter charged by motor vehicle summons and complaint with failure to signal when changing lanes in violation of General Statutes § 14-242 and operating a motor vehicle while under suspension in violation of § 14-215 (c). The defendant moved to dismiss the charge of operating a motor vehicle while his license was under suspension, claiming that he was not subject to the enhanced penalties of General Statutes § 14-215 (c) because the statutory period of suspension for refusing to take a blood alcohol test had expired. The motion was denied, and the trial court then accepted the defendant's plea of nolo contendere on that count. A nolle was noted on the charge of failure to signal. The defendant received the minimum statutory sentence of thirty days imprisonment and fined $500 pursuant to § 14-215 (c). The defendant's sentence was stayed pending the outcome of this appeal. I The defendant claims that the trial court improperly determined that he was subject to the enhanced penalties of General Statutes § 14-215 (c). In support of his claim, the defendant argues that once the six month suspension period of § 14-227b had ended, his operating privileges were no longer suspended "on account of" his refusal to submit to a blood alcohol test. We agree. Section 14-215 prohibits any person from operating a motor vehicle in Connecticut if that person's license or operating privileges have been suspended, revoked, or refused for any reason. The penalties for violating the statute are set forth in subsection (b). Subsection (c), however, imposes more severe penalties on those drivers who operate motor vehicles while their licenses or operating privileges have been suspended on account of violations of one of Connecticut's operating while intoxicated statutes, General Statutes § 14-227a, 14-227b, 53a-56b, and 53a-60d. We have recently considered the issue of when a driver's license or operating privileges are suspended "on account of a violation" of one of our laws against driving while intoxicated for the purposes of the imposition of the enhanced penalty provisions of subsection (c) of § 14-215. State v. Jacobson, 31 Conn. App. 797, 627 A.2d 797 (1993), aff'd, 229 Conn. 824, 644 A.2d 331 (1994). In Jacobson, the defendant's license was suspended for one year after he was convicted of operating a motor vehicle while under the influence of alcohol in violation of § 14-227a. Id., 799. At the expiration of the one year period, the defendant became eligible to reinstate his license by presenting proof of financial responsibility to the commissioner of motor vehicles pursuant to General Statutes § 14-112. Although more than one year had passed since his suspension, the defendant failed to take the necessary administrative steps to restore his license. He was arrested and charged with operating a motor vehicle while his license was suspended in violation of General Statutes § 14-215 (c). Id. In analyzing the issue of whether the defendant's license remained under suspension on account of his violation of § 14-227a even after the statutory suspension period had expired, we determined that the penalties imposed in subsection (c) of General Statutes § 14-215 are penal in nature and must, therefore, be strictly construed in favor of the accused. State v. Jacobson, supra, 31 Conn. App. 802. We reviewed the language of § 14-227a and determined that the suspension provision provided therein was limited to the one year period enumerated. Id., 802-803; see General Statutes § 14-227a (h) (1) (C). The statute does not require the suspension to continue in effect after the statutory period has expired until the violator has taken the necessary administrative steps to restore his privileges. State v. Jacobson, supra, 803. Similarly, § 14-227b is unambiguous in its provision that the refusal to submit to a blood alcohol test subjects a driver to the suspension of his license or operating privileges for a period of six months. It does not require that the suspension continue beyond that six month period until such time that the driver's privileges are formally restored. Therefore, upon completion of the six month period, a driver's license or operating privileges are no longer suspended on account of a violation of § 14-227b and the driver may not be subjected to the enhanced penalties of § 14-215 (c). State v. Jacobson, supra, 31 Conn. App. 803-804. Because the six month suspension of the defendant's operating privileges had expired, the defendant could not be found guilty of operating a motor vehicle while his privileges were under suspension on account of his refusal to submit to a blood alcohol test and he could not be subjected to the enhanced penalties of § 14-215 (c). II Although we reverse the defendant's conviction under § 14-215 (c), the state urges us to follow the result we reached in State v. Jacobson, supra, 31 Conn. App. 806, and hold that the defendant has violated the lesser included offense of subsection (a) of § 14-215 and is, therefore, subject to the penalties enumerated in subsection (b). The defendant claims his case can be distinguished from Jacobson in that he holds a valid Vermont driver's license, which entitles him to operate a motor vehicle in Connecticut. We disagree with the defendant and remand the case for resentencing. In order to establish a violation of § 14-215 (a), the state must prove two elements: (1) that the defendant was operating a motor vehicle; and (2) that the defendant's license or operating privileges were under suspension at the time. State v. Jacobson, supra, 31 Conn. App. 805. In this way, the elements of subsection (a) constitute a lesser included offense of subsection (c). Id. The only additional element required to prove a violation of subsection (c) is the requirement that the suspension at issue be "on account of" a violation of one of our statutes prohibiting the operation of motor vehicles by intoxicated operators. Id. "Since the defend ant pleaded nolo contendere to the charge of violating § 14-215 (c), he could have been convicted of the lesser crime of violating § 14-215 (a), and subjected to the less severe penalties provided for by § 14-215 (b)." Id. It is undisputed that the defendant was operating a motor vehicle at the time of his arrest. The defendant argues, however, that his operating privileges were no longer under suspension once the six month suspension period imposed by § 14-227b had expired. He attempts to distinguish his case from that of Jacobson in that he has a valid Vermont driver's license that entitles him to operate a motor vehicle in Connecticut, whereas the Jacobson defendant held no valid license at the time of his arrest. He therefore contends that his operating privileges were automatically reinstated, without any action on his part, once the six month suspension period had ceased. We do not disagree with the defendant's assertion that any person who holds a valid driver's license issued by another state is entitled to a reciprocal privilege to operate a motor vehicle in Connecticut. The defendant's argument fails, however, to acknowledge the fact that the commissioner of motor vehicles may revoke or suspend those privileges if they are abused and may require the payment of a fee to have those privileges reinstated. General Statutes § 14-50b. In State v. Jacobson, supra, 31 Conn. App. 806, the defendant's case was remanded with direction to sentence the defendant for a violation of General Statutes § 14-215 (a) because the defendant had not shown the requisite proof of financial responsibility to restore his license pursuant to § 14-112. Similarly, the defendant here has failed to take the required administrative steps to reinstate his Connecticut operating privileges. Specifically, he has failed to pay a restoration fee of $100 in accordance with § 14-50b. The defendant's attempt to read into § 14-50b an exemption for nonresidents who hold valid driver's licenses from other states is unpersuasive. No such exemption is enumerated in the plain language of the statute. "We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words. . . ." (Citations omitted; internal quotation marks omitted.) October Twenty-Four, Inc. v. Planning & Zoning Commission, 35 Conn. App. 599, 603, 646 A.2d 926 (1994), quoting Ghent v. Planning Commission, 219 Conn. 511, 515, 594 A.2d 5 (1991). Section 14-50b expressly applies to both those whose licenses have been suspended as well as those whose rights to operate motor vehicles in this state have been suspended. The defendant was therefore subject to § 14-50b and his failure to restore his operator's privileges by paying the required fee necessitates a finding that his privileges to operate a motor vehicle in Connecticut remained under suspension until such time as that fee was paid. It is undisputed that the defendant had not paid this fee at the time of his arrest; he has, thus, violated § 14-215 (a) and is subject to the penalties enumerated in subsection (b). " Tt is axiomatic that this court is vested with the authority to remand a case for resentencing. See, e.g., State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). In doing so, however, it is not this court's function to prescribe the new sentence. Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992); State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The appropriate disposition is a remand to the trial court with direction to resentence the defendant.' State v. Dennis, 30 Conn. App. 416, 426, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993)." State v. Jacobson, supra, 31 Conn. App. 805-806. The judgment is reversed and the case is remanded with direction to render a judgment of guilty of violating General Statutes § 14-215 (a) and to resentence the defendant in accordance with General Statutes § 14-215 (b). In this opinion the other judges concurred. General Statutes § 54-94a provides in pertinent part: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. . . ." General Statutes § 14-215 provides in pertinent part: "(a) No person . . . whose operator's license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. . . . "(b) Except as provided in subsection (c) of this section, any person who violates any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense . "(c) Any person who operates any motor vehicle during the period his operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner." General Statutes § 14-227b provides that any person operating a motor vehicle in Connecticut has impliedly consented to chemical analysis of his blood, breath, or urine. The refusal to submit to such a test subjects an operator to revocation of his license or nonresident operating privileges for a period of six months. General Statutes § 14-227b (h) (1) (B). The state has conceded in its appellate brief that the defendant was incorrectly charged with the enhanced penalty portion of General Statutes § 14-215 (c) in light of our decision in State v. Jacobson, 31 Conn. App. 797, 627 A.2d 797 (1993), aff'd, 229 Conn. 824, 644 A.2d 331 (1994). During this one year period, the defendant's license was concurrently suspended for six months for refusing to submit to alcohol testing pursuant to General Statutes § 14-227b. State v. Jacobson, supra, 31 Conn. App. 799. General Statutes § 14-112 requires proof of financial responsibility for those who have committed serious motor vehicle offenses such as reckless driving in violation of General Statutes § 14-222, evasion of responsibility-in the operation of a motor vehicle in violation of General Statutes § 14-224, operating a motor vehicle while intoxicated in violation of § 14-227a (a), and for those who have been found criminally responsible for the death of any person in connection with a motor vehicle accident. The plain language of the statute does not require proof of financial responsibility to restore the operating privileges of one whose license has been suspended due to a violation of § 14-227b. General Statutes § 14-39 provides in pertinent part: "(a) Any nonresident sixteen years of age or older who is licensed to operate a motor vehicle in the state or country of which he is a resident may . . . operate any registered motor vehicle on the highways of this state for the same period allowed by the state or country of his residence to residents of this state without complying with the provisions of this chapter requiring the licensing of operators . . . ." General Statutes § 14-50b provides in pertinent part: "(a) Any person whose operator's license or right to operate a motor vehicle in this state has been suspended or revoked by the commissioner of motor vehicles . . . shall pay a restoration fee of one hundred dollars to said commissioner prior to the issuance to such person of a new operator's license or the restoration of such operator's license or such privilege to operate a motor vehicle . . . ." (Emphasis added.)

Per Curiam. The judgment is affirmed.

Berdon, J. The defendant, Donald L. Chapman, was convicted by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l) and sentenced to a term of fourteen years, execution suspended after seven years. The defendant appealed to the Appellate Court, claiming that the trial court had improperly instructed the jury that it could find him guilty of sexual assault in the first degree if it found that he had compelled sexual intercourse either by the use of force or by the threat of use of force. The state had not charged the defendant with having threatened to use force, nor did the state introduce evidence of the threat of use of force. The Appellate Court concluded that the trial court had "improperly instructed the jury on a statutory alternative for which there was no supporting evidence" and ordered a new trial. State v. Chapman, 28 Conn. App. 360, 366, 610 A.2d 1328 (1992). We granted the state's petition for certification limited to the following issues: "(1) Did the Appellate Court correctly conclude that the statutory alternative analysis set forth in State v. Williams, 202 Conn. 349, 363-64 [521 A.2d 150] (1987), applied to alternative language occurring within the same statutory subdivision] and that the trial court's instruction permitted the jury to consider a separate and distinct theory of criminal liability? (2) Was the Appellate Court correct in its failure to consider whether any error in the trial court's charge was harmless beyond a reasonable doubt?" State v. Chapman, 223 Conn. 923, 614 A.2d 827 (1992). We conclude that the trial court improperly instructed the .jury on a statutory alternative for which the defendant was not charged and for which there was no supporting evidence. We also conclude that the trial court's instruction violated the defendant's due process rights under the Connecticut constitution and that harmless error analysis is not required. We therefore affirm the judgment of the Appellate Court. For the purposes of the issues raised in this appeal, we need to concern ourselves only with the following limited facts. The state charged only that the defendant had compelled sexual intercourse by the use of force and introduced evidence to that end. The state concedes that it introduced no evidence that the defendant had committed the offense by threatening the use of force against the victim. Nevertheless, the trial court instructed the jury that "a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or by the threat of the use of force against such person which reasonably causes such person to fear physical injury." (Emphasis added.) Indeed, the trial court instructed on the use of a threat as an alternative means of committing the crime on three separate occasions. The defendant took an exception to the instruction on committing sexual assault by threatening the use of force, thereby appropriately preserving this claim for appellate review. See Practice Book § 852; State v. Smith, 219 Conn. 160, 592 A.2d 382 (1991); State v. Hill, 201 Conn. 505, 512, 518 A.2d 388 (1986). I Statutory Alternative Analysis Sexual assault in the first degree may be committed by two methods under § 53a-70 (a) (1): (1) by compelling another person to engage in sexual intercourse by "the use of force"; or (2) by compelling another person to engage in sexual intercourse by "the threat of use of force." We have held on numerous occasions that " '[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.' State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984); see State v. Silveira, 198 Conn. 454, 459, 503 A.2d 599 (1986). This rule is based on the principle that jurors are presumed to follow the instructions given by the judge. State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977); State v. DellaCamera, 166 Conn. 557, 567, 353 A.2d 750 (1974)." State v. Williams, supra. By instructing the jury on a theory of criminality for which there is no supporting evidence, the trial court implies that there is a factual dispute for the jury to resolve regarding that theory of criminality. The trial court's instruction authorizes the jury to consider and to resolve the implied factual dispute. Id., 364. "The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence." (Internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 659, 626 A.2d 287 (1993); see also State v. Williams, supra. The state claims that the statutory alternative analysis employed in State v. Williams, supra, is not applicable in this case because the two methods of committing sexual assault in the first degree at issue here—use of force and the threat of use of force—are set forth in the same subdivision of the statutory definition. The state argues that the analysis in Williams should apply only when the statutory alternatives are framed in separately numbered statutory subdivisions. We disagree. Whether the legislature has distinguished between methods of achieving a result by placing them in separately labeled subdivisions or within a single subdivision is not determinative for deciding whether to apply the statutory alternative analysis set forth in Williams. We decline to adopt the distinction advanced by the state because it would elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose. See State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Gonzalez, 206 Conn. 213, 219, 537 A.2d 460 (1988). Instead, we must focus on the underlying purpose of the statutory alternative analysis set forth in State v. Williams, supra, 364, which serves the essential function of ensuring that juries do not convict under a theory of criminality unless the evidence is sufficient to establish guilt under that theory. In view of this under lying purpose, we must turn to the substance of the statutory text to determine whether the use of force and the threat of the use of force are separate statutory alternatives. Section 53a-70 (a) provides that sexual assault may be committed by the "use of force against such other person . . . or by the threat of the use of force against such other person . . . which reasonably causes such person to fear physical injury to such person or a third person . . . ." The text of the statute clearly separates "force" from "threat of use of force" by using the disjunctive "or." The "use of the disjunctive 'or' between the two parts of the statute indicates a clear legislative intent of separability." State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963). Thus, in State v. Belton, 190 Conn. 496, 500-501, 461 A.2d 973 (1983), we held that the trial court had impermissibly enlarged the offense charged by incorporating the uncharged disjunctive phrase "remains unlawfully" when explaining the elements of burglary in the first degree. Under General Statutes § 53a-101 (a), "[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 . . . ." We noted that "a burglary is committed when either type of 'entry' is established"; id., 501; and concluded that the trial court had violated the defendant's due process rights under the state and federal constitutions by repeatedly using the disjunctive phrase "remains unlawfully," when the state had not charged the defendant with that theory of liability. Similarly, we have consistently held that the "use of force" and the "threat of use of force" are "two methods of committing the same crime." State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Carter, 189 Conn. 611, 628-29, 458 A.2d 369 (1983); see also 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) (suggesting separate jury instructions for the use of force [§ 10.2] and the threat of use of force [§ 10.1]). The state argues that the use of force and the threat of force cannot be statutory alternatives, however, because they can occur together and because they cause an identical result—namely, compelled sexual intercourse. We reject both of these arguments. Although an assailant may use force simultaneously with a threat to use force, each method may occur in isolation, as indicated by the plain language of the statute, which delineates the use of force separately from the threat of the use of force, and by the facts of this case. As previously noted, the state concedes that it neither charged nor introduced evidence to show that the defendant had threatened to use force, but limited its case to the actual use of force. As a result, the rationale behind the statutory alternative analysis of State v. Williams, supra, which seeks to ensure that the jury is not charged on a theory of liability for which no evidence has been introduced, applies whether the statutory alternatives are set forth in separately numbered subdivisions or within the same subdivision. Our conclusion that the Appellate Court properly applied the statutory alternative analysis of Williams to the present case gains further support from the legislative history. Section 53a-70 was substantially amended by No. 75-619 of the 1975 Public Acts, which substituted the term "assault" for "misconduct" and provided that sexual assault could be committed by the threat of force as well as force. During the debate, Senator Betty Hudson stated: "The present statute requires that there be force, force enough . to overcome earnest resistance, whatever that means. Well in most rape cases, there is no resistance. . . . In fact, in eighty-seven percent of rape cases, there is no resistance . . . because the rapist has a knife or a gun and threatens the woman's life or that of her child." 18 S. Proc., Pt. 7,1975 Sess., p. 3222. Senator Hudson's remarks indicate that the legislature intended to punish for sexual assault those individuals who compelled sexual intercourse by threatening to use force, in addition to those who used actual force. This legislative history indicates an intent not to merge force and the threat of force, but rather supports the conclusion that force and threat of force are two separate methods of committing the same crime. We conclude that the use of force and the threat of force, as used to define sexual assault in the first degree in violation of § 53a-70 (a) (1), are distinct statutory alternatives. Accordingly, we affirm the Appellate Court's application of the analysis in State v. Williams, supra. II Harmless Error Analysis In its second claim, the state argues that the Appellate Court should have applied harmless error analysis in determining whether to order a new trial because the trial court's instruction authorized the jury to consider a separate and distinct theory of liability. The state's contention cannot properly be addressed without first considering whether a jury instruction that allows a jury to convict a defendant on the basis of a statutory alternative for which there was no evidence violates a defendant's right to due process. The underlying federal rule of due process was announced in Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). In that case, the government had charged the defendants with conspiring to (1) advocate and teach the duty and necessity of over throwing the government and (2) organize persons who so advocate and teach with the intent of overthrowing the government. The court noted that "in order to convict, the jury was required, as the court charged, to find an overt act which was 'knowingly done in furtherance of an object or purpose of the conspiracy charged in the indictment,' and we have no way of knowing whether the overt act found by the jury was one which it believed to be in furtherance of the 'advocacy' rather than the 'organizing' objective of the alleged conspiracy. . In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." Id., 311-12. The state contends, however, that following the United States Supreme Court's decision in Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), a general verdict is valid so long as the evidence is sufficient with respect to any one of the alternatives charged. In Griffin, the court reaffirmed the rule, under federal law, set forth in Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), as follows: " '[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.' " Id., 473. Griffin is therefore inapposite in this case because it is limited to statutory alternatives charged in the conjunctive. In the present case, the trial court's instructions to the jury were predicated on an information that charged the defendant disjunctively. We need not speculate as to whether the United States Supreme Court would apply the tailored rule set forth in Griffin to statutory alternatives charged disjunctively because the defendant invokes the state constitution as well as the federal constitution. "It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991)." (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). We have held that, among other things, it is appropriate to focus on our state common law and state history in construing the contours of our state constitution. Id., 686. "State courts . . . must be empowered to determine, in light of state interests and state history, what meaning to attribute to provisions contained in state constitutions." E. Peters, "State Constitutional Law: Federalism in the Common Law Tradition," 84 Mich. L. Rev. 583, 588 (1986). Moreover, we may look to the historical record and due process tradition in Connecticut in determining whether article first, § 8, of the Connecticut constitution affords greater rights than its federal counterpart. State v. Stoddard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988). An instruction on a statutory alternative that is not supported by the evidence violates a defendant's fundamental right, protected by the due process clause of article first, § 8, of the Connecticut constitution, "to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt." State v. Williams, supra, 363; see also State v. Rodriguez, 223 Conn. 127, 147, 613 A.2d 211 (1992); State v. Allen, 216 Conn. 367, 388-89, 579 A.2d 1066 (1990); State v. John, 210 Conn. 652, 688, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Arnold, 201 Conn. 276, 281-82, 514 A.2d 330 (1986); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). A similar principle applies when the trial court instructs the jury that it may convict a defendant on the basis of a statutory alternative for which there is no evidence. Accordingly, it is firmly entrenched in the common law of this state that " '[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.' " State v. Williams, supra, 364; Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). "[I]f a claim is made against the evidence in the case, and wholly unsupported by proof, it is error to submit it to the jury as if the evidence justified the claim, and without comment, as there is great danger of its leading to an unjust verdict." Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876); see also Allen v. Rundle, 50 Conn. 9, 33, 47 A. 599 (1882); Hartford v. Champion, 58 Conn. 268, 276, 20 A. 471 (1890); McGarry v. Healey, 78 Conn. 365, 367, 62 A. 671 (1905); Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933) ("instruction which left the door open for the entrance of a finding by the jury of negligence on the defendant's part, or of due care upon the plaintiff's part, which did not arise out of the evidence in the case, was calculated to do the defendant harm"); Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979). The principle of not submitting to the jury any issue for which there is insufficient evidence has roots in our early common law. Justice Swift, writing in 1822, shortly after the adoption of the state constitution in 1818, noted that the jury in its deliberations "must find expressly all the facts put in issue, or must negate them all." 2 Z. Swift, Digest of the Laws of the State of Connecticut (1823) p. 774. Similarly, Justice Swift recog nized the court's power to "direct the jury to say, in their verdict, on which count they find the defendant guilty, and to find him not guilty on the rest, so that if he should be found guilty on an insufficient count, he might take advantage of it by motion in arrest." Id., p. 383. Also imbedded in our common law is the notion that the judge has the power "to defend the innocent against an unjust verdict . . . ." Id., p. 413. Implicit in the power to set aside a verdict that has no support in the evidence is the idea that the court should not submit to the jury, in the first instance, an issue that has no support in the evidence. By doing so, the court invites an unjust verdict. Accordingly, we conclude that the due process clause of the Connecticut constitution prohibits the trial court from charging the jury on a statutory alternative for which there is no evidence and on which the jury could improperly predicate its verdict. "[A] general verdict of guilty without specific findings as to the alternative on which it rested . . . must be set aside if the evidence as to either alternative submitted was insufficient." State v. Arnold, supra, 282; see also State v. Williams, supra, 364. The state argues that even if the Appellate Court properly concluded that the jury charge violated the defendant's right to due process by enlarging the offense charged, it should not have reversed his conviction without engaging in a harmless error analysis. We disagree. Ordinarily, we abide by the principle that "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). In such cases, under the state constitution as well as the federal constitution, the state must prove that the constitutional impropriety was harmless beyond a reasonable doubt. State v. Oquendo, 223 Conn. 635, 660, 613 A.2d 1300 (1992). Nevertheless, some constitutional errors require automatic reversal in order to vindicate the fundamental right in question, "[infringements of a defendant's constitutional rights in a criminal case where harmless error analysis is deemed inappropriate involve situations where the constitutional violation must be deemed harmful under all circumstances or where it is of such a nature that ascertainment of its harmfulness is impossible or so difficult as not to warrant the endeavor. Such cases are rare exceptions to 'the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' Delaware v. Van Arsdall, [supra]." State v. Mebane, 204 Conn. 585, 604-605, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988) (Shea, J., concurring); J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1989) p. 492. The present case falls within the category of cases that require automatic reversal. State v. Williams, supra. By instructing the jury on a statutory alternative for which there was no evidence, the trial court expressly sanctions a verdict that has no foundation in the evidence. Following such an instruction, it is " 'impossible to determine whether the jury based its decision on an act for which there was insufficient evidence . . . .' United States v. Berardi, [675 F.2d 894, 902 (7th Cir. 1982)]." State v. Arnold, supra. We will never know the statutory predicate for the jury's verdict. Accordingly, when the jury, on the basis of the trial court's instructions, renders a general verdict that does not specify the statutory alternative on which it rests, it "must be set aside if the evidence as to either alternative submitted was insufficient"; id.; without engaging in a harmless error analysis. Accordingly, we conclude that the due process clause contained in article first, § 8, of the Connecticut constitution requires a new trial if the trial court instructs the jury that the defendant may be found guilty on a statutory alternative for which there is no evidence. The judgment is affirmed. In this opinion Peters, C. J., and Katz, J., concurred. General Statutes § 53a-70 (a) provides in relevant part: "A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . ." In the Appellate Court, the defendant also claimed that (1) his amnesia rendered him incompetent to stand trial, (2) the trial court improperly failed to admit statements made by the victim to the defendant to show their effect on the defendant's state of mind, and (3) the trial court improperly referred to the defendant's "misstatements" in its charge to the jury on consciousness of guilt. State v. Chapman, 28 Conn. App. 360, 361-62, 610 A.2d 1328 (1992). Those issues are not before this court. The defendant claims that the state waived its first claim, that the use of force and the threat of use of force are not statutory alternatives, by failing to raise the issue in the Appellate Court. State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984) (failure to raise issue before Appellate Court is grounds to deny review in this court). Indeed, the state in its brief before the Appellate Court referred to "force" as the charged theory of liability and ' 'threat of force' ' as the uncharged theory of liability; it further referred to them as "both theories." Nevertheless, because the first issue is so interwoven with the second certified question concerning harmlessness; see Cahn v. Cahn, 225 Conn. 666, 679 n.1, 626 A.2d 296 (1993) (Berdon, J., concurring); we will review the claim. Furthermore, both parties have fully briefed the issue. By way of a substitute information, the state charged that "at the Highland Horse Farm in the Town of Ledyard, on or about the late evening hours of March 2, 1990, to the early morning hours of March 3, 1990, the defendant attempted to, and did compel, the victim to engage in sexual intercourse by the use of force against said victim, to wit: the said Donald L. Chapman restrained the victim, attempted to, and did forcibly penetrate her vagina with his penis, in violation of Sections 53a-49 (a) (2) and 53a-70 (a) (1) of the Connecticut General Statutes." Practice Book § 852 provides: "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury." The United States Supreme Court predicated its holding in Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), on common law pertaining to the "general verdict" rule. "The rule of criminal procedure applied by the Seventh Circuit here is not an innovation. It was settled law in England before the Declaration of Independence, and in this country long afterwards, that a general jury verdict was valid so long as it was legally supportable on one of the submitted grounds—even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury's action." Id., 469. Nevertheless, under Connecticut common law, firmly established before the adoption of our state constitution in 1818, litigants were able to protect themselves from the effects of a general verdict by taking separate verdicts on separate counts. Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993); Wolcott v. Coleman, 2 Conn. 324, 338 (1817) ("[i]n a case where there are good and bad counts in a declaration, if the defendant wishes to question the sufficiency of any of them, verdicts can be taken on each count separately"). In Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 470, 116 L. Ed. 2d 371 (1991), the United States Supreme Court stated that "[n]one of the three authorities cited for that expansive proposition [in Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)] in fact establishes it." The court noted that one of the statutory alternatives at issue in Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), overruled by Griffin, was of doubtful constitutionality; that one of the statutory alternatives at issue in Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942), violated the full faith and credit clause; and that two of the overt acts proffered by the prosecution in Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441 (1945), did not satisfy the overt act requirement of article three, § 3, of the United States constitution. Griffin v. United States, supra, 471-72. In State v. Reid, 193 Conn. 646, 667 n.22,480 A.2d 463 (1984), however, this court cautioned against confusing cases in which the trial court permits the jury to consider an "improper basis for a conviction under circumstances where it is impossible to tell whether the conviction rests upon the impermissible ground" with cases involving the rule that "where a guilty verdict is returned on an information charging several acts in the conjunctive the information is not defective in relation to the verdict if the evidence is sufficient with respect to any of the acts charged." "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed .under the federal Constitution when the claim before the court in fact is fully met by state law." Mas sachusetts v. Upton, 466 U.S. 727, 736, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984) (Stevens, J., concurring); Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981). Article first, § 8, of the Connecticut constitution provides in part: "No person shall . be deprived of life, liberty or property without due process of law . . . ." The state argues that because there was no evidence of a threat in this case, it is inconceivable that the jury could have found the defendant guilty predicated on the threat of force theory. The state's argument overlooks the basic tenet of our jurisprudence that "jurors are presumed to follow the instructions given by the judge." State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987). "We cannot presume that the jury rejected this issue because of the absence of evidence." Id. Furthermore, it is clear that we have always required reversal and a new trial under our common law in the case of an "unjust verdict." We have consistently held that no issue may be submitted to the jury for which there is no evidence. Thus, we have ordered new trials in cases in which the trial court improperly submitted to the jury an issue for which there was no evidence. Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); Miles v. Sherman, 116 Conn. 678, 683, 166 A. 250 (1933); Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876). Moreover, this court has recognized the trial court's inherent power to set aside an unjust verdict. State v. Hammond, 221 Conn. 264, 267-70, 604 A.2d 793 (1992); State v. Avcollie, 178 Conn. 450, 456, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 910 (AC 11003), is denied.

Cretella, J. The plaintiffs appeal from a judgment for the defendant, rendered after a jury trial, in an action for personal injuries and loss of consortium. The plaintiffs claim that the trial court improperly refused to admit into evidence the handwritten notes of the defendant's night manager that were made soon after he learned of William Raino's injury in the defendant's store. The plaintiffs claim that these notes, although constituting hearsay, should have been admitted into evidence under one of several exceptions to the hearsay rule. We affirm the judgment of the trial court. The plaintiffs' revised complaint alleged that William Raino was a customer at the defendant's Pathmark store in Bridgeport on August 30, 1987, when he fell as a result of a Pathmark employee's striking his cane with a broom. During the plaintiffs' case-in-chief, an incident investigation report prepared by Pathmark regarding the injury claim was introduced into evidence without objection as a business record. The incident report gave the customer's description of the incident, listed witnesses, and contained other relevant information. Kelly Alleyne, a cashier employed by the defendant at the time of the incident was called by the defendant as a witness. During the cross-examination of Alleyne, the plaintiffs sought to introduce into evidence the handwritten notes of James Fratantonio, the defendant's night manager at the time of the incident. Alleyne could not identify the notes, but the plaintiffs offered the notes as an admission. The defendant's objection to the offer of the notes was sustained by the court. The other cashier, Sandy Rishel, was not called by either party as a witness. Later in the trial, during the plaintiffs' cross-examination of Fratantonio, the plaintiffs again sought to introduce the same handwritten notes into evidence. Fratantonio had testified that William Raino telephoned him to report the incident about an hour after it had occurred. He then spoke to a cashier about the incident and made notes on a piece of scratch paper. Although Fratantonio testified that his notes reflected what he learned regarding the incident and that he relayed the information in the notes to the general store manager, Peter Mazurski, he also testified that it was not part of his business to keep notes of this nature and that the notes were not kept by him or Pathmark in the ordinary course of their business. Fratantonio stated that the incident report prepared by Mazurski and already admitted into evidence constituted the business record regularly used by Pathmark to preserve accident information. The plaintiffs claimed that the notes should be admitted into evidence under an exception to the hearsay rule as an admission, as a declaration against interest, as a business record, and under the catchall exception. The defendant again objected to the offer of the notes on any of these grounds. The objection was sustained by the trial court. The plaintiffs did not attempt to offer the notes into evidence during the remainder of the trial. An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991); State v. Rochette, 25 Conn. App. 298, 303, 594 A.2d 1006 (1991). On appeal, the plaintiffs claim that Fratantonio's notes should have been admitted into evidence under an exception to the hearsay rule (1) as a business record, (2) as an admission by adoption, (3) as Fratantonio's past recollection recorded, (4) as a prior inconsistent statement, and (5) under the catchall exception to the hearsay rule. We will not review the plaintiffs' third and fourth claims because neither of these grounds for the admission of the notes was raised in the trial court. O & G Industries, Inc. v. Mizzoni, 23 Conn. App. 19, 23, 578 A.2d 672 (1990); DiSorbo v. Grand Associates One Limited Partnership, 8 Conn. App. 203, 206-209, 512 A.2d 940 (1986). We now address the plaintiffs' remaining claims, which were properly preserved for appeal. Business Record Exception The plaintiffs claim that Fratantonio's notes were such an integral part of the Pathmark incident investigation report, which did qualify as a business record under General Statutes § 52-180, that the notes, too, must be admitted under the business record exception to the hearsay rule. It is a correct statement of law that preliminary or investigative notes used in the preparation of an admissible business record can be a business record under § 52-180, but not every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180, the contents of a business record must be based on the entrant's own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. In re Barbara J., 215 Conn. 31, 40, 574 A.2d 203 (1990); D'Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). The admissibility of the notes as a business record fails, not because the notes do not qualify as a business record, but because a proper foundation was not laid. It was not established that the information contained in the notes was transmitted to Fratantonio by an observer whose duty it was to transmit such observations. See State v. Palozie, 165 Conn. 288, 295-96, 334 A.2d 468 (1973). Fratantonio testified that he spoke to the plaintiff and a cashier in preparing his notes. He could not recall who the cashier was; he did not know whether the cashier had witnessed the accident; the notes also contain references to other individuals whose identity was not established; the notes contained the names of the cashiers that had not been written by him and had been crossed out. While a cashier would certainly have a duty to report accurately a worksite injury to supervisory personnel, the foundation testimony on which the plaintiff sought to establish the admissibility of Fratantonio's notes failed to establish whether the information, in fact, came from the cashier and, if it did, whether the cashier's information was based on personal observation or the hearsay statements of others. Statements of persons who do not have a business duty to report pertinent information, even where they are included in a business record prepared by a person who does have such a duty, are not admissible under § 52-180. Id. Because the foundation testimony failed to establish the source of the information contained in the notes, the trial court correctly precluded their admission under the business record exception to the hearsay rule. Admission The plaintiffs next claim that Fratantonio's notes were admissible as adoptive admissions of the defendant because the statements therein were reflected in the defendant's incident investigation report. "When a party's conduct indicates that the party assents to or adopts a statement made by another person, the statement is admissible against the party." C. Tait & J. LaPlante, Connecticut Evidence § 11.5.5. Under this exception to the hearsay rule, "a party's use of a document made by a third person will amount to an approval of its statements as correct and, accordingly, may be received against him as an 'admission by adoption.' . . . This applies even to information based on hearsay as it may be assumed that the user of the writing informed himself of its contents. . . . The circumstances surrounding the use of such a document are significant in determining whether its use constitutes an admission by adoption." (Citations omitted.) Falker v. Samperi, 190 Conn. 412, 426, 461 A.2d 681 (1983). In the present case, the plaintiffs did not establish a sufficient foundation to allow the notes into evidence as an admission by adoption. The plaintiffs failed to establish the relationship between Fratantonio's notes and the Pathmark incident report. Fratantonio never testified that he approved of the statements contained in the notes and reported them as an accurate portrayal of the accident to Peter Mazurski, his supervisor, who was responsible for preparing the incident investiga tion report. In fact, Mazurski later testified that he could not recall seeing the notes before trial and that he could not recall the source of his information in preparing the incident report. Without sufficient foundation regarding the precise use to which the notes were put or the claimed relationship between the notes and the report, the trial court properly excluded the notes as an admission by the defendant or its managerial employees. Catchall Exception The plaintiffs also seek to establish the admissibility of Fratantonio's notes under the so-called catchall exception to the hearsay rule. This claim need not detain us long. "Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to [the] resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice." (Emphasis added.) State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The plaintiffs, however, failed to satisfy the key requirements of reliability and necessity for admission of the notes under this exception to the hearsay rule. The fact that Fratantonio could not identify the source of the various statements in his notes, the fact that he never vouched for the accuracy of the information in his notes, the failure to establish the precise relationship between the notes and the incident report and the fact that the incident report, which the plaintiff asserts contains much or all of the information in the notes, was already introduced in evidence, undercut both the reliability prong and the necessity prong of the catchall excep tion. Consequently, we agree with the trial court that Fratantonio's notes were not admissible under this exception to the hearsay rule. The judgment is affirmed. In this opinion the other judges concurred. This action was brought by the named plaintiff and Kathleen Raino, his wife. Both are parties to this appeal. The customer description of incident portion of the incident investigation report stated: "customer was bagging his groceries at register #8 (bagging one handed and holding a cane in the other hand) when maintenance man sweeping the front end knocked his cane out from under him and he fell to the floor." The incident investigation report listed the following witnesses: "Sandy Rishel (cashier)" and "Kelly Alleyne (cashier)." The remarks portion of the incident investigation report contained the following additional relevant information: "cashier was Kelly Alleyne, saw incident, Eugene hit cane by accident, said was sorry, Mr. Raino said he was OK and left with his groceries." General Statutes § 52-180 provides in pertinent part: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record 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." Even investigative notes must meet the preliminary requirements of General Statutes § 52-180, "(1) that the record was made in the regular course of business, (2) that it was the regular course of the business to make the writing, and (3) that the writing was made at the time of the transaction or occurrence, or within a reasonable time thereafter." State v. Crumble, 24 Conn. App. 57, 69, 585 A.2d 1245 (1991). Although Fratantonio testified that his notes were only scratch paper and that, as such, the notes were not kept by him or Pathmark in the ordinary course of business, he also testified that he was in charge of the store at the time of the incident, that it was his duty to investigate promptly what had occurred, and that he recorded what he learned in the course of his investigation on the scratch paper that he used. While we believe that the notes meet the criteria set forth in § 52-180, we conclude that the notes were not admissible under the business record exception for reasons other than their failure to qualify as a business record. The conclusion here does not conflict with our analysis in Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 472 A.2d 1290 (1984). In Shuchman, we concluded that "[i]t is not necessary to prove the specific identity of the informant." Id., 459. Essential to that conclusion, however, was the determination that, although the identity of the source of the information was unknown, the information did, in fact, come from a person whose business duty involved submitting the information for inclusion in the report and not from "an officious intermeddler, foreign to the affairs of the [business enterprise]." Id., 458. The same cannot be said here with any degree of certainty since neither the notes nor the testimony regarding them indicates the source of the statements contained therein. Furthermore, the source of at least some of the statements contained in the notes appears to be the plaintiff William Raino, who certainly had no business duty to Pathmark in this context. See Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 435-36, 505 A.2d 1272 (1986).

Heiman, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-111 (a) (l) and conspiracy to commit arson in the first degree in violation of General Statutes § 53a-48 and 53a-111 (a) (1). The defendant was found not guilty of a third count of criminal attempt to commit arson in the first degree. On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal when the evidence was insufficient to sustain his convictions, (2) admitted into evidence the statements of two alleged coconspirators, and (3) permitted the assistant state's attorney to make improper closing arguments to the jury. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. In August, 1987, Harold Dozier and Debra Dozier purchased a house located at 97 Carmel Street in New Haven from Gladis Lee. They moved into the house with their three young children, and Gladis Lee moved into a house across the street. Gladis Lee's sons, Dean and Mark, no longer lived with their mother but were often seen at her residence. The defendant, a friend of the Lees, was also frequently seen outside the Lee house. Shortly after moving to Carmel Street, the Doziers became involved in a block watch group organized to unify the neighborhood and to instill a sense of security in its occupants. The group also discussed ways of improving the community, including creating solutions to the area's drug problem. As time went on, Harold Dozier assumed a leadership role in the neighborhood block watch organization. For several months prior to June 19, 1990, both Harold Dozier and Debra Dozier observed what they considered to be drug transactions occurring in front of the Lee residence. The Doziers observed the defendant, Mark Lee, Dean Lee and Anthony Hill participate in the transactions. Harold Dozier reported these observations to the New Haven police. During this same period of time, Sergeant William White of the criminal intelligence division of the New Haven police department, received information that drug transactions were occurring on Carmel Street. He was informed that the defendant, Hill, Mark Lee, Dean Lee and Andre Thomas were among the persons participating in this illegal activity. White undertook surveillance of the area on several occasions and observed each of these men engage in what White concluded, on the basis of his observations of their conduct, were drug transactions. On Friday, June 15, 1990, White participated in a police raid on an apartment house located at 561 Winthrop Avenue, New Haven, which is directly behind the Lee residence on Carmel Street. Narcotics were found at the apartment, and Mark Lee was subsequently arrested and charged with a narcotics violation. The Doziers were unaware of the fact that a raid had been conducted, or that Mark Lee had been arrested, until they were told of the occurrence by Judith Monk, a neighbor on Carmel Street. Dean Lee believed, however, that the Doziers and Monk were responsible for his brother's arrest and told the defendant and Thomas of his suspicions. Subsequent to the raid at 561 Winthrop Avenue and Mark Lee's arrest, three windows at the Dozier house were simultaneously smashed by three bricks. When the Doziers looked to see what had happened, they observed the defendant running from the area of their house toward the Lee residence. On Saturday June 16, 1990, Harold Dozier took the windows for repair. When he returned to the house, he saw the defendant, Hill, and Dean Lee leaning against a car about five houses away. An argument ensued between Hill and Harold Dozier, and Hill yelled: "[Y]ou took our house, we're gonna fuck you up, we're gonna get you." Later on Saturday, a neighborhood festival with an antidrug theme was sponsored by the block watch group. The festival took place on Percival Street, between Carmel Street and Sherman Avenue, which was blocked off for the event. At the festival, Harold Dozier made a speech against drugs in the neighborhood. The defendant, Dean Lee, and Hill were in attendance at the festival and were present when Harold Dozier spoke. The next day another brick was thrown at the Dozier home. Neither Debra Dozier nor Harold Dozier observed who threw the brick. On Monday June 18,1990, the defendant went to the Taurus Bar with Hill, Thomas, Mark Lee, Dean Lee and Tim Best for drinks. After a period of time, the friends decided to return to Carmel Street. Thomas dropped off the defendant, Hill and Dean Lee in front of Gladis Lee's house and left the area to bring Mark Lee to his girlfriend's house. Best also left the Carmel Street area to go home. When Thomas returned, the defendant, Hill, Dean Lee and a juvenile were in front of the Dozier home. They were setting off M-80 firecrackers and smoking "dust," a narcotic substance. Thomas told the group to go home before the police were called. The group did not heed Thomas' advice, but Thomas left the scene so as not to jeopardize his parole. The Doziers heard the M-80 firecrackers shortly after they had retired for the evening. Debra Dozier looked out the window and observed the defendant, Hill, Dean Lee and a person whom she did not recognize in front of the house. After about one-half hour, the Doziers called the police to complain about the activity in front of the house. Shortly thereafter, a police cruiser drove by the house and the noise ceased. About thirty minutes after the cruiser had passed the house, the setting off of firecrackers resumed. The Doziers recognized the voices of the defendant, Hill, and Dean Lee coming from the front of the house, the area where the firecrackers were being ignited. The Doziers also heard a rumbling noise from the area of their front porch. After hearing the rumbling noise, Debra Dozier again looked out of the front bedroom window and observed the defendant, Dean Lee and Hill roughhousing on the Dozier property. Debra Dozier returned to bed and about one minute later she and Harold Dozier heard a whooshing sound coming from the front porch and discovered that the porch was on fire. Harold Dozier called the police while Debra, with their three children, vacated the house. Harold Dozier grabbed a fire extinguisher and was able to extinguish the fire before the fire department arrived. At this point, Harold Dozier saw that the grass in front of Monk's house had also been set on fire. Harold Dozier immediately ran to Monk's residence as soon as he had extinguished the fire on his porch. Captain Robert Callahan of the New Haven fire department arrived at the scene at approximately 1:35 a.m. and noted an odor of gasoline coming from the grass and front porch areas of the Dozier house. A plastic container that gave off the odor of gasoline was found near the Doziers' front porch and the arson squad was notified. Pour patterns on the Dozier porch indicated that a flammable liquid and accelerant were used to start the fire and that the fire was incendiary in nature. Another plastic container was found on the lawn of the Monk house. This container also smelled of gasoline. The following day, Thomas learned of the fire at the Dozier home when he picked up Mark Lee for their daily trip to a gym and Thomas saw detectives and news crews outside the Doziers' house. Later that day, at approximately 3:30 p.m., Thomas went to Mark Lee's third floor apartment at 627 Dixwell Avenue. He found Hill and Dean Lee at the apartment, but the defendant was not present. When Thomas arrived at the apartment, Dean Lee had just come out of the shower and Hill was removing his clothing to take a shower. The clothes that Hill was removing were the ones that he had been wearing the night before. Thomas noted that they smelled of smoke and gasoline. At the apartment, Hill stated that he, the defendant, Dean Lee, and a fourth person had thrown plastic bottles containing gasoline on the Dozier house and on the Monk property and had set them on fire. He stated that he and the unnamed fourth person had set the fire at the Dozier house while the defendant and Dean Lee had set the fire at the Monk house. He also stated that they would claim as an alibi that they were all at the Bran-ford Inn if they were questioned concerning the fires. A warrant was issued for the arrest of the defendant, Hill, and Dean Lee as a result of these fires. On June 22, 1990, the police learned that the defendant was in the vicinity of 627 Dixwell Avenue. When the police arrived, the defendant was sitting on the porch of those premises. When the defendant saw the police, he ran into the back entrance of the building, up to the apartment of Mark Lee. The police found him hiding behind a false wall in that apartment. I The defendant first claims that the evidence was insufficient to sustain his convictions of arson in the first degree and conspiracy to commit arson in the first degree. We are unpersuaded and conclude that the evidence was sufficient to support both convictions. We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); State v. Wideman, 36 Conn. App. 190, 202, 650 A.2d 571 (1994). "First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Sivri, supra, 126, quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); see also State v. Wideman, supra, 202. In applying this analytical framework to the circumstances before us, we acknowledge that it appears that the defendant's conviction is premised, in large measure, on circumstantial evidence. "[I]t is of no moment that much of the relevant evidence may be circumstantial. . . . [TJhere is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evi dence." (Citations omitted; internal quotation marks omitted.) State v. Simino, 200 Conn. 113, 117, 509 A.2d 1039 (1986); see also State v. Foster, 202 Conn. 520, 536, 522 A.2d 577 (1987). We must also acknowledge in our review of the evidence that it is the right and the duty of the jury to draw reasonable and logical inferences from the evidence. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984). Moreover, the jury may draw inferences on the basis of facts that it finds as a result of other inferences. State v. Weinberg, supra, 255; State v. Little, supra, 673. "[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). "We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility." State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). A We first examine the claim that the evidence was insufficient to support the defendant's conviction of arson in the first degree in light of the legal standards already set forth. The trial court instructed the jury that it might find the defendant guilty of the crime of arson in the first degree if it found that he acted either as a principal or as an accessory. The statute proscribing the crime of arson defines the offense as requiring proof that a person, with intent to destroy or damage a building, starts a fire or causes an explosion while the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied. General Statutes § 53a-lll (a) (1). The statute creating accessorial liability requires proof that a person, acting with the mental state required for the commission of an offense, intentionally aided another person to engage in unlawful conduct. General Statutes § 53a-8. If the person has so acted, he may be prosecuted and punished as a principal. General Statutes § 53a-8. It has long been the law in Connecticut that there is no crime of being an accessory. State v. Paredes, 35 Conn. App. 360, 370, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994). "The accessory statute merely provides an alternative means by which a substantive crime may be committed. . . ." (Citations omitted; internal quotation marks omitted.) Id., quoting State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). Here, the jury was clearly convinced that the defendant intentionally aided other persons in the commission of the crime of arson in the first degree. We have already set out the facts that the jury could have reasonably found and no purpose would be served by repeating those facts here, except those that highlight the defendant's involvement in the crime. The defendant was present when Dean Lee threatened Harold Dozier. He was also observed on the victims' property twice on the night of the fire discharging M-80 fireworks to harass the victims. In fact, the defendant was observed roughhousing on the victims' property only one minute before the victims heard a whooshing sound and saw the fire on their porch. When the police attempted to apprehend the defendant, he fled and was found hiding behind a false wall, permitting the jury to infer consciousness of guilt from his flight. See, e.g., State v. Holloway, 209 Conn. 636, 651, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Reddick, 33 Conn. App. 311, 330, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). "Viewing the cumulative effect of the evidence as a whole, and giving due weight to all the considerations urged upon us by the defendant, we are persuaded that the state has established beyond a reasonable doubt that the defendant [was an accessory to the setting of the fire at the Dozier residence]." State v. Famiglietti, 219 Conn. 605, 614, 595 A.2d 306 (1991). As in Famiglietti, the jury here had before it direct evidence of the defendant's presence, with his friends and cohorts, at the premises within one minute of the time that the fire was started. Id. Taking into account the defendant's presence at the premises, his conduct prior to the fire and his flight when the police attempted to execute an arrest warrant, we are convinced that the jury could have determined beyond a reasonable doubt that the defendant was an accessory to the crime. In short, the jury, permitted to draw logical and reasonable inferences from proven facts; State v. Grant, supra, 219 Conn. 604; had sufficient evidence before it to conclude that the defendant was guilty of the crime of arson in the first degree. Accordingly, we reject the defendant's claim that the evidence was insufficient to support his conviction of that crime. B The defendant also attacks the sufficiency of the evidence with respect to his conviction of the crime of con spiracy to commit arson in the first degree. We are again persuaded that the evidence was legally sufficient to support the verdict of the jury. We first turn to an examination of the nature of the crime of conspiracy. Conspiracy has long been recognized as an offense separate and distinct from the substantive offense. State v. Bush, 33 Conn. App. 253, 263, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994). "The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes. . . . The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes." (Citations omitted; internal quotation marks omitted.) Id., 263, quoting In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987); State v. Hooks, 30 Conn. App. 232, 241, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). In order to establish the commission of the crime of conspiracy in violation of General Statutes § 53a-48, the state must prove beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that, subsequent to that agreement, one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Hooks, supra, 30 Conn. App. 241, citing State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to establish beyond a reasonable doubt that the defendant intended that conduct constituting a crime be performed. State v. Jones, 35 Conn. App. 839, 846, 647 A.2d 43 (1994). "The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. . . . Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. . . . The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object. . . . Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific objective crime." (Citations omitted; internal quotation marks omitted.) State v. Hooks, supra, 30 Conn. App. 242; see also State v. Rouleau, supra, 204 Conn. 258; State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). The state is not obligated to prove the existence of a formal agreement among the parties, but must prove that the parties engaged knowingly in a plan to commit a forbidden act. State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991); State v. Wideman, supra, 36 Conn. App. 200. As a consequence, circumstantial evidence may be used to provide the proof necessary to establish the existence of the agreement "because conspiracies, by their very nature, are formed in secret and only rarely can be proved by other than circumstantial evidence." State v. Sweeney, 30 Conn. App. 550, 559, 621 A.2d 304, cert. denied, 225 Conn. 927, 625 A.2d 826 (1993); see also State v. Wideman, supra, 200. Our review of the evidence convinces us that, on the basis of the circumstantial evidence before it, the jury could reasonably find the existence of an agreement between the defendant and his coconspirators to work together for the unlawful purpose of igniting a fire at the Dozier residence. The defendant knew that Dean Lee blamed his brother's arrest on the Doziers. The defendant was with Dean Lee when he threatened Harold Dozier that some harm might come to him or his property in retaliation for his brother's arrest. The defendant was on the Doziers' property when an accelerant was used to set fire to the Doziers' residence. Thus, the crime of conspiracy was committed when the defendant and his coconspirators performed the overt act of attempting to use an accelerant for the purpose of igniting the Dozier house. In order to commit the crime of conspiracy, it was not necessary that the defendant be successful in carrying out the underlying object of the conspiracy. State v. Hooks, supra, 30 Conn. App. 242. Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence presented to the jury was sufficient to have permitted it to find the defendant guilty of the crime of conspiracy. Thus, we reject the defendant's claim that the evidence against him was insufficient to support a verdict of guilty of the crime of conspiracy. II The defendant next claims that the trial court improperly admitted into evidence statements made by alleged coconspirators. In support of this claim, the defendant asserts that the evidence offered by the state failed to establish by a fair preponderance of the evidence the existence of a conspiracy with the defendant as a participant, a threshold requirement to the admissibility of such statements. We are not persuaded. Statements made by coconspirators are recognized in Connecticut as an exception to the general prohibition against hearsay. See State v. Vessichio, 197 Conn. 644, 653-60, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). However, "[bjefore such statements may be admitted, the trial judge must make a preliminary determination that there is sufficient independent evidence to establish the following: (1) that a conspiracy existed . . . (2) that the conspiracy was still in existence at the time the statement was made . (3) that the declarations were made in furtherance of the conspiracy . . . and (4) that both the declarant and the defendant partici pated in the conspiracy . The court must make its preliminary determination by a fair preponderance of the evidence independent of the hearsay utterances . a standard which is lower than the standard of evidence required to submit a charge of conspiracy to the jury. . . . Once the threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant . . . the conspirators' statements are admissible and they might tip the scale in favor of the defendant's guilt . . . ." (Citations omitted; internal quotation marks omitted.) Id., 654-55; see also State v. Wideman, supra, 36 Conn. App. 200; State v. Headley, 26 Conn. App. 94, 98-99, 598 A.2d 655, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). We first note that the defendant does not claim that the evidence presented by the state was insufficient to prove the existence of a conspiracy, that a conspiracy was still in existence at the time that the statements were made, and that the declarations were made in furtherance of the conspiracy. State v. Vessichio, supra, 197 Conn. 655-56. Rather, the defendant limits his attack to a claim that the state had failed to produce sufficient evidence to establish by a fair preponderance that the defendant was a participant in a conspiracy existing among Hill, Dean Lee and himself. We conclude that sufficient evidence had been offered by the state to establish that fact by a fair preponderance of the evidence. Proof by a fair preponderance of the evidence is proof by " 'the better evidence, the evidence having the greater weight, the more convincing force in [the fact finders] mind.' " Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). The standard of proof of a fact by a fair preponderance has been met when "all the evidence considered fairly and impartially evinces a reasonable belief that it is more probable than not that the fact is true." Id., 394-95; see also Churchill v. Skjerding, 31 Conn. App. 247, 251, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993). In reviewing a claim that the state failed to meet the threshold of proof regarding the existence of a conspiracy with the defendant as a participant to permit evidence of out-of-court statements by coconspirators, we must construe the evidence "in a way most favorable to sustaining the preliminary determinations of the trial court; its conclusions will not be disturbed on appeal unless found to be clearly erroneous." State v. Vessichio, supra, 197 Conn. 656. Measured against these standards, we conclude that the defendant's challenge as to the existence of the requisite evidentiary threshold necessary to the admissibility of the statements of the coconspirators must fail. At the time of the proffer of the evidence of the out-of-court statements, the trial court had before it evidence that the fire at the Dozier house was incendiary in nature, involving the use of gasoline as an accelerant. The smell of gas was apparent in the area of the fire, and a plastic container smelling of gasoline was found on the Doziers' front lawn. The fire investigator testified that he concluded that the fire was intentionally set. The trial court also had before it evidence that Mark Lee had been arrested on a narcotics charge about three days before the fire was set at the Dozier residence. The trial court also had testimony before it that the defendant, together with Mark Lee, Dean Lee and Hill, had been observed engaging in narcotic trafficking in the neighborhood. The night after Mark Lee was arrested, windows were smashed at the Dozier house, and the defendant was observed running away after this incident. The trial court also had before it evidence that the night after Mark Lee was arrested there was a neighborhood block watch festival at which Dozier made a speech urging his neighbors to band together in an attempt to stop the neighborhood drug problem. The evidence also indicated that the defendant, Dean Lee, and Hill were present at the block watch party. Further, the evidence indicated that threats were made against Dozier by all three, including the defendant, and, when the other two made threats against Dozier in his presence, the defendant did not disassociate himself from these threats in any way. In addition, the evidence before the trial court disclosed that on the night of the fire, Thomas went to the Taurus Bar with Mark Lee, Dean Lee, Hill and the defendant. They all left the bar about midnight. The defendant, Hill, and Dean Lee went to Carmel Street, where they were subsequently observed by Thomas running around in front of the Dozier house, setting off M-80's directly in front of the residence. Thomas also observed that they were smoking "dust," a narcotic substance. Thomas told them to leave the area and to go home because he was concerned that they would be arrested. They did not heed his advice and Thomas left the area. The fire at the Dozier residence occurred shortly thereafter. Within one minute of his discovering the fire, Harold Dozier recognized the defendant's voice outside his window. The trial court also knew that on the day following the fire, Hill and Dean Lee were observed removing clothing and sneakers that smelled of gasoline. As we have already stated, a conviction of the crime of conspiracy is often based on circumstantial evidence because conspiracies, by their very nature, are usually created in secrecy and frequently cannot be proven other than by circumstantial evidence. State v. Vessichio, supra, 197 Conn. 656; State v. Wideman, supra, 36 Conn. App. 201; State v. Sweeney, supra, 30 Conn. App. 559. Thus, the trial court may also make use of circumstantial evidence in making the initial determination of whether the state has met its threshold bur den for the admissibility of the coconspirators' statements by a fair preponderance of the evidence. See State v. Vessichio, supra, 655-56. On the basis of our review of the evidence and given the right of the trial court to draw inferences from facts that it finds proven, we conclude that the trial court's finding that the state had established the existence of the conspiracy and the participation of the defendant as a member thereof, was not clearly erroneous. Thus, the trial court properly admitted into evidence the statements of the coconspirators under the hearsay exception. Ill The defendant finally claims that his convictions were fatally flawed when the trial court permitted the assistant state's attorney to make improper closing arguments to the jury. He claims that this conduct violated the rights secured to him by the sixth and fourteenth amendments to the United States constitution and article first, § 8 and 19, of the Connecticut constitution. We are not persuaded. The defendant takes issue with four separate comments offered by the assistant state's attorney during closing arguments. Two of the comments were made during the state's initial closing argument, and two were made in the course of the state's rebuttal argument. The defendant concedes, as he must, that no objections were interposed to the arguments that he now asserts are improper, and he seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). " 'We will not afford Golding review to claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant's right to a fair trial.' " State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994), quoting State v. Young, 29 Conn. App. 754, 766, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). "[I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument." (Internal quotation marks omitted.) State v. Williams, supra, 246. Our review of the entire transcript of the trial and the arguments by counsel leads us to conclude that this is not a situation where there exists any pattern of misconduct on the part of the state's attorney during the course of the trial, nor do we find any egregious acts in the four instances pressed by the defendant. It appears that the defendant "confuses effective advocacy with prosecutorial misconduct and attempts to make vigorous argument . a vehicle for his claim of improper prosecutorial conduct." State v. Young, supra, 29 Conn. App. 767. The acts of claimed misconduct in the course of the arguments consisted at most of isolated and brief episodes that did not reveal a pattern repeated throughout the trial, nor were they blatantly egregious. See State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Young, supra, 767. Thus, we decline to afford review since the defendant has faded to satisfy the threshold for review mandated by State v. Golding, supra, 213 Conn. App. 239-40. As a second string to his bow, the defendant asserts that if he is not successful in pressing his claim for Golding review, he is entitled to plain error review. Other than his bare assertion that he is entitled to this extraordinary type of review, the defendant provides us with no analysis to support this claim. "Plain error review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Domian, 35 Conn. App. 714, 727, 646 A.2d 940 (1994), quoting State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). "Having concluded that the [arguments of the assistant state's attorney] of which the defendant now belatedly complains did not implicate his constitutional rights so as to warrant review under State v. Golding, supra, [213 Conn. 239-40] we find that the [assistant state's attorney's statements] did not result in manifest injustice, and, therefore, [do] not permit plain error review." State v. Ulen, 31 Conn. App. 20, 38, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). The judgment is affirmed. In this opinion the other judges concurred. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court. General Statutes § 53a-lll provides in pertinent part: "(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 . . . ." General Statutes § 53a-48 (a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." Judith Monk lived at 77-79 Carmel Street, New Haven, and was the alleged victim under the third count of the information on which the defendant was acquitted. In light of our conclusion that the trial court acted properly in admitting the out-of-court declarations of the coconspirators, we do not engage in an analysis of this issue based on Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), decided after the decision of our Supreme Court in State v. Vessichio, supra, 197 Conn. 644, wherein the United States Supreme Court permitted the trial court to examine the hearsay statements together with the independent evidence in determining whether to admit the hearsay statements into evidence, nor do we express any position with respect to its applicability in future cases. Because the defendant has not provided us with an independent analysis of his claim under the state constitution, we decline to consider this unsupported state constitutional claim. State v. Hamilton, 228 Conn. 234, 246 n.10, 636 A.2d 760 (1994). The excerpts that are the focal point of this claim are as follows: (1) In the course of his initial argument, the assistant state's attorney stated in pertinent part: "[B]ut in any case the state is concerned that you understand that the state of Connecticut's concern in this matter is that you render a fair and impartial verdict as sworn officers of this court with the idea that you're here to give [the defendant] a trial, a fair trial but you're also here to protect those individuals who have been affected by this, you're here to protect the people in the community and also the property that exists in the community." (2) Later in his initial argument, the assistant state's attorney stated in pertinent part: "Now it should be quite clear to all of you by this point in time what this case has been about. Essentially what this case has been about is it's about a family, a young family, a young professional couple with three young children who live over in the area of Carmel Street; you heard when they moved in, I believe it was in August of 1987, city of New Haven, Carmel Street. It concerns their attempts and their conduct in trying to rid the neighborhood over there of problems that had developed and to be specific about what those problems were, specifically the scourge that plagues a lot of the areas here in the city of New Haven, drug peddling, and it was clear that at least, from the state's perspective and again its your recollection that counts that Dean Lee, Mark Lee, Anthony Hill, and [the defendant] were in conjunction with one another involved in that type of activity over in the area of Carmel Street. Not only did it involve that, but it also involved the use of threats, fear, intimidation, vandalism and finally arson. Essentially, acts of urban terrorism that were perpetrated by those individuals involved in that drug trade in an attempt to silence the public's stand and efforts that the Doziers did take against drugs. That's really what this case was about and that's really the reason for the fire." (3) In the course of the rebuttal argument, the assistant state's attorney stated in pertinent part: "Now, the circumstantial evidence of this case I think is compelling, what you have, number one is: it's clear, you know, [defense counsel] will get up and tell you that this case has nothing to do with drugs and if you want to believe that that's fine but you have some common sense here, you heard what was going on over in the Carmel Street area, the state would ask you to use your common sense, if you think that this was just a random act of vandalism, you're mistaken, that's not what it was, it was clearly a retaliation that was perpetrated by this defendant along with those others that have been mentioned in that information in an attempt to silence the Doziers for the stand that they had taken against the narcotics dealing over in the Carmel Street area." (4) Later in the course of rebuttal the assistant state's attorney argued: "This, ladies and gentlemen, was a violent act of brutalization perpetrated against the Doziers by the organized group that was running a drug operation over on the Carmel Street area." We also note that with regard to unpreserved due process claims, " '[d]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.' " State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991), quoting State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982). Practice Book § 4185 provides in pertinent part: "The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court."

Callahan, J. The plaintiff, Ann B. Lunn, appeals from the judgment of the trial court, concluding, on the ground of equitable estoppel, that the plaintiff could not prevail in her action against the defendant, The Tokeneke Association, Inc., and that the defendant was entitled to injunctive relief to prevent the plaintiff from constructing a house on her property in Darien. In July, 1991, the plaintiff commenced the present action alleging that the defendant had wrongfully, unlawfully, and unreasonably denied her requests to subdivide and construct a single-family dwelling on her property on the westerly side of Contentment Island Road in the Tokeneke section of Darien. The plaintiff sought an injunction requiring the defendant to approve her requests. The defendant counterclaimed seeking a permanent injunction to prevent the plaintiff from selling, transferring or building on the property in violation of applicable restrictive covenants prior to January 1, 2000. After a hearing, the trial court, Hon. George A. Saden, state trial referee, rendered a judgment for the defendant on both the complaint and the counterclaim, enjoining the plaintiff from constructing a house on the property in question. The plaintiff appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court. The parties stipulated to and the trial court found the following facts. On October 10, 1950, a 4.9 acre tract of land on the westerly side of Contentment Island Road was conveyed by warranty deed from Norton, Inc., to Robert L. Cudd. The deed from Norton, Inc., to Cudd contained certain restrictive covenants. The defendant is the successor to Norton, Inc., and the beneficiary of the restrictive covenants. In 1959, Norton, Inc., approved the subdivision of the 4.9 acre tract owned by Cudd into a one acre parcel and a 3.9 acre parcel, without waiver of any right otherwise to enforce the restrictive covenants. This approval allowed Cudd to convey the one acre parcel to a third party. In 1983, Cudd's estate conveyed the 3.9 acre parcel to the plaintiff and Nancy Glanville as tenants in common. The 3.9 acre parcel is directly across the street from and west of the plaintiff's and Glanville's respective house lots and is separated from those lots by Contentment Island Road. Thereafter, in July, 1984, the plaintiff and Glanville applied to the Darien planning and zoning commission (commission) to divide the 3.9 acre parcel between them for the sole expressed purpose of gaining individual ownership of the land directly across the street from their respective houses. They specifically represented to the commission that they were not seeking to divide their land for approval as building sites and that they planned to maintain the property with "an attractive open view." They made the same representations in a letter sent to their neighbors. Their attorney moreover informed the commission that the plaintiff and Glanville had purchased the 3.9 acre parcel only "to protect their existing properties on the easterly side of Contentment Island Road." Their attorney also stated that he would be willing to file maps depicting the newly created parcels simply as annexations to the existing residential building lots on which his clients' homes were located across the street. He objected to the creation of a conservation easement on the land, however, because such an easement would be permanent and he did not "know what could happen [twenty] years down the line—[fifty] years down the line." On September 11, 1984, the commission approved the plaintiff's and Glanville's application for the division of their land solely for "annexation" as depicted on the map, and not as building sites. In 1985, counsel for the plaintiff and Glanville wrote to Warren MacKenzie, then president of the defendant, to request the defendant's approval of the division. In his letter, he expressed his belief that, because the separate parcels were created only for annexation to the plaintiff's and Glanville's existing residential lots, and the approval of those lots as building sites was not sought, the restrictive covenants did not apply. To avoid uncertainty, however, he solicited the defendant's approval. In March, 1985, MacKenzie, acting on behalf of the defendant, sent a letter to the plaintiff and Glanville, approving the division of the 3.9 acre parcel. He qualified the defendant's approval, however, by stating that the approval was not a waiver of any other restrictive covenant contained in the deed, nor a waiver of the right of the defendant to require approval of any further division of either parcel. In April, 1985, the plaintiff and Glanville executed cross conveyances so that each became the sole owner of that portion of the divided parcel directly across the road from the respective residence of each. MacKenzie served as president of the defendant until November, 1985. Shortly thereafter, the plaintiff retained MacKenzie, an attorney, to represent her in connection with her Tokeneke real estate. In 1986, MacKenzie filed an application with the commission seeking approval of a plan to subdivide the plaintiff's property for the purpose of creating a building site on the westerly side of Contentment Island Road by separating the lot on which the plaintiff's house is located from the lot on the westerly side of the road that had been annexed to her house lot in March, 1985. The application was ultimately approved by the commission on July 14, 1987. In January, 1990, MacKenzie applied to the defendant for approval of the plaintiff's subdivision and building plans. The defendant initially took the position that, because of the wording of the restrictive covenants, it was not empowered to review or approve the proposed subdivision. The plaintiff then commenced a lawsuit seeking temporary and permanent injunctive relief to require the defendant to review and act upon her application, or to waive that right. The court, Hodgson, J., granted the plaintiff her requested relief and ordered the defendant to review the plaintiffs request for subdivision approval or to advise her in writing that it waived its right to do so. Pursuant to the court's order, the defendant held a public hearing on February 5, 1991, to consider the plaintiff's application. On February 26, 1991, the defendant, by a unanimous vote, denied the plaintiff's request for subdivision approval. In doing so, the defendant noted that the property in question was specifically designated as both open space and a natural, scenic and conservation area in the Darien plan of development. It was further noted that the Darien plan of development expressed a purpose of preserving tidal wetlands and visual public access to scenic areas such as the property in question. Moreover, the defendant claimed that the expert testimony offered at the hearing demonstrated that the plaintiff's proposal "was deficient in many respects under zoning, planning and other standards." Ultimately, the defendant refused to approve the plaintiffs subdivision in order to maintain the subject parcel as open space until the year 2000. On appeal, the plaintiff claims that the trial court improperly concluded that: (1) the defendant acted reasonably and in good faith in denying the plaintiffs application for approval of subdivision and building plans; (2) the plaintiff was estopped from claiming injunctive relief; (3) the plaintiff impliedly waived a claim to injunctive relief; and (4) the defendant was entitled to injunctive relief. Because we agree with the trial court that the plaintiff was estopped from claiming injunctive relief, we find it unnecessary to reach the plaintiffs other claims. To decide this appeal we are required to resolve the plaintiff's claim that the trial court was incorrect when it determined that the defendant had established the applicability of the doctrine of equitable estoppel. Two essential elements must be proved by the party claiming equitable estoppel in order to have the doctrine apply: " '[T]he 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.' " Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 252 n.7, 618 A.2d 506 (1992), quoting O'Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990). For estoppel to exist, there must be misleading conduct resulting in prejudice to the other party. John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984). The plaintiff argues that the defendant was not entitled to the relief provided by equitable estoppel because it failed to prove that it suffered any injury as a result of her representations. The trial court concluded that the plaintiffs " 'annexation'request . . . prejudiced the Defendant Association's position . in dealing with [the] Plaintiffs second request for subdivision and approval of house plans." The plaintiff challenges the trial court's conclusion that the defendant was so prejudiced. In reviewing the court's conclusion, we must determine whether it is legally and logically correct and finds support in the facts and whether the facts relied on by the trial court in its memorandum of decision are supported by the evidence or whether, in light of the whole record, they are clearly erroneous. O'Sullivan v. Bergenty, supra, 648; Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 444, 440 A.2d 935 (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The trial court found that the plaintiff acted "in complete abnegation of the very clear and specific statements and promises of [her] and her counsel that these parcels would remain open land and would provide a scenic view for [the] Plaintiff's and Glanville's homes on the easterly side of Contentment Island Road which [the] Plaintiff and Glanville claimed they sought to 'protect' when they bought the westerly tract at a cheap price because it was not buildable." The trial court concluded that "[considering all of the circumstances surrounding [the] Plaintiff's first request for 'annexation' . . . causing the Defendant Association to accede to the 'annexation' only because of the Plaintiff's representations, but not granting approval as a building site, it seems that . an estoppel . . . [has] application here." (Emphasis in original.) The plaintiff, however, contends that estoppel is not applicable because the defendant was not injured in any way by what occurred in the "annexation" proceedings before either the commission or the defendant because the trial court found that subdivision and annexation were actually impossible under the circumstances existing and that the commission's 1984 approval and the defendant's 1985 approval of the plaintiff's subdivision were in effect a nullity. The trial court stated that annexation was impossible because the divided parcels were separated by Contentment Island Road from the applicants' residences and that neither the statutes nor ordinances empowered the commission to approve annexation of properties so situated. Moreover, the trial court found that the commission was not empowered to grant a subdivision application since General Statutes § 8-18 defines subdivision as "the division of a tract or parcel of land into three or more parts or lots . . . expressly excluding development for municipal, conservation or agricultural purposes . . . ." Thus, the trial court found the commission's 1984 and the defendant's 1985 approval were unnecessary. "[T]he only thing that was accomplished by their application was to draw a line between [the] Plaintiff's and Glanville's portions and labeling them la and 2a." The trial court noted that if the plaintiff and Glanville wanted to divide the property between themselves, "a surveyed line and exchange of deeds between them would have accomplished that without seeking [planning and zoning] approval of an 'annexation' which the Commission was not empowered to grant them." The trial court found, however, that the plaintiff "pursued vigorously the so-called 'annexation' procedure mentioned above even though it may have been legally useless because, notwithstanding that fact, the idea could serve to obtain [the commission's] impri matur for drawing a line between the parcels of [the] Plaintiff and Glanville as a first step toward proceedings thereafter to apply for a building site approval. The fictitious 'annexation' served no other purpose but to create a flimsy verbal excuse to split the westerly land area and thus make the next attack a little easier, viz., to convert the two parcels, created by drawing the dividing line, into building sites. It greased the approach to that objective by making it appear the two parcels were already there and all the [commission] had to do was bless them as building sites, and it placed the Defendant Association in a prejudiced position by approving a division of the whole westerly parcel into two lots even for 'annexation' only." By agreeing to the subdivision of the land on the westerly side of Contentment Island Road for "annexation" purposes in 1985, the defendant could no longer consider the original 3.9 acre parcel when faced with the plaintiff's subsequent application for subdivision for building purposes that is the subject of this appeal. Had the defendant been confronted with a subdivision application for building purposes in 1985, it would have been able to exercise some control over the configuration of the lots and the location of any proposed structures and waste disposal systems on the entire 3.9 acre parcel. Now, the defendant is faced with the fait accompli of two separate properties and is limited to considering the location of the structure and septic system on the plaintiff's two acre parcel. Moreover, a subdivision of the original 3.9 acre parcel for building purposes might have been denied altogether if the defendant had determined that it was too small or otherwise inadequate for two houses. Now, the defendant is met with Wo separate lots with the potential for two houses. We conclude that the trial court could properly have found from the evidence that "the pursuit of the 'annexation' request to divide the land . . . was a maneuver . . . to place both the [commission] and the Defendant Association in the position of having approved the creation of [the subject parcel] and thus making it somewhat more difficult for both the [commission] and Defendant Association to reject a subsequent request for approval of [the subject parcel] as a building site." On the basis of the trial court's findings, it was reasonable for it to conclude that the plaintiff intended to induce the defendant association to believe that she would keep the subject parcel as open space in order to gain approval of the initial subdivision and that the defendant granted such subdivision in reliance on that representation, thereby prejudicing itself in relation to the plaintiff's later application for a subdivision to create a building site. We conclude that the trial court could properly have found that the defendant successfully proved the elements of estoppel so as to defeat the plaintiff's claim for injunctive relief. The judgment is affirmed. In this opinion the other justices concurred. See footnote 2. The covenant and restrictions provided: "1. That the plans, specifications, and location of any and all buildings and installations to be constructed on the premises hereby conveyed shall be submitted to and approved by the said Grantor, acting through its President or Treasurer or successor of said Corporation, or the assignee of the said Corporation's right and interest in and to the roads, ways, drives, and avenues, at Tokeneke, so-called, in said Town of Darien. "2. That said premises are not to be used for any business purpose whatsoever, or for any purpose other than a strictly private residence, and they are not to be subdivided for the purpose of sale or transfer, and no sewer, cesspool, or drain shall be constructed, used, maintained, or permitted thereon (other than for surface water), unless approval be first obtained in the manner hereinabove provided for the approval of the plans and location of any building before erecting the same on said premises. "3. That the several conditions and provisions herein contained shall run with the land hereby conveyed, and the same shall be binding upon the said Grantee, his heirs, executors, administrators and assigns until the first day of January, A.D., 2000." The trial court found that "both parties agree that a subdivision in this case and plans for [a] one-family house require approval of the Defendant Association." At this point, the court noted the fact that the restrictive covenants in issue expire on January 1, 2000, approximately fifteen years from the date of the commission hearing. The trial court noted that annexation was actually impossible because the parcels were separated from the housing lots by a road, "so that what [the] Plaintiff and Glanville were probably talking about was a split of the tract of land on the west side of the Road . In fact this whole proceeding before the [commission] appears to be totally unnecessary. If all that the Plaintiff and Glanville were seeking was a division of the land between themselves, it would seem a surveyed line and exchange of deeds between them would have accomplished that without seeking [planning and zoning] approval of an 'annexation' which the commission was not empowered to grant them." An appeal was taken from the approval by an abutting property owner, and was denied by the court, Nigro, J., on June 22, 1989. A subsequent appeal to the Appellate Court was denied on November 16, 1989. The trial court took note of the fact that the plaintiff had testified before Judge Hodgson that, at the time of purchase, she did not believe the subject property was "buildable." The trial court concluded that the denial of approval for a building site impliedly constituted a denial of the proposed building plans also. The court noted that the defendant gave considerable attention to both the subdivision and the building plans. The building plans proposed the construction of a single-family dwelling on the site. The trial court also took note of the fact that the plaintiffs expert witness acknowledged that a septic system on the subject parcel would not overflow into the surface if the land was flooded by a tidal flood, which generally has a duration of two or three hours, but would fail if there was a long-term inundation. It was found that the septic system would be inundated several times a year due to storms in the area and that the entire property had been under water from time to time in the past. The plain tiff's expert witness also conceded that the five hundred gallons the system could handle would not reach the Long Island Sound as clean, potable water. The commission itself later acknowledged that because of the purposes of the plaintiffs' 1984 application the "requirements for the creation of developable lots under the Subdivision and Zoning Regulations did not apply." The trial court also enjoined the plaintiff from engaging in the construction of a residence on her land on the westerly side of Contentment Island Road, in violation of the restrictive covenant, until the year 2000. In view of its evidentiary findings, the trial court did not abuse its discretion in so doing. See Manley v. Pfeiffer, 176 Conn. 540, 544-45, 409 A.2d 1009 (1979); Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977).

Per Curiam. The decision of the compensation review board is affirmed.

Gregory Thompson's petition for certification for appeal from the Appellate Court (AC 12988) is denied.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 849 (AC 12261), is denied.

The defendants' petition for certification for appeal from the Appellate Court, 33 Conn. App. 619 (AC 11705), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 33 Conn. App. 626 (AC 11744), is denied.

Landau, J. This is an appeal from a trial court order affirming the denial of the appellant's motion for a protective order, which sought to quash discovery of trustee account records. The appellant, Arthur M. Field, an attorney appearing pro se, filed the motion for a protective order in response to a subpoena duces tecum served by the plaintiff on Shawmut Bank Connecticut, N.A., formerly Connecticut National Bank (Shawmut Bank) requesting Field's attorney trustee banking records. Field sets out in twelve claims an assault on the trial court's rulings resembling "[t]he wolf on the fold," the gist of which is that (1) the trial court, J. Walsh, J., improperly summarily denied the motion for protective order in Field's absence, (2) the court, Gaffney, J., improperly heard reargument on a motion originally heard and decided by another judge, (3) both judges improperly permitted to be subpoenaed information that was overbroad and properly precluded from discovery, (4) both improperly failed to examine material in camera before permitting discovery so as to determine potential violations of privileges and rights, (5) both improperly denied Field and his clients their federal and state constitutional rights, (6) both improperly applied the burden of proof with regard to Field's constitutional arguments, and (7) the court, J. Walsh, J., failed to furnish an adequate record of the proceedings. The appellee, First Trust National Association, as trustee (First Trust), argues (1), that should this court find that this appeal is moot, the "capable of repetition, yet evading review" exception is justification for reviewing the appeal, (2) that Field lacks standing to appeal the trial court's order in that he is not a party to the underlying action, and (3) that this court lacks subject matter jurisdiction in that the trial court's order is not a final judgment for purposes of an appeal. The following facts provide context for appellate review. The underlying action, commenced in February, 1993, involves the foreclosure of a residential mortgage. While Field is not a party to that action, he represented at least one of the defendants at the time the mortgage note was executed. In response to special defenses filed by Barbara Izzo and Alphonse Izzo, First Trust commenced discovery proceedings to determine the details and extent of an alleged fraud. As a result of information gleaned from other proceedings, First Trust claims to have determined that moneys were given to and retained by Field. First Trust served Field with a notice of deposition and a subpoena duces tecum and deposed him on three occasions. During the depositions, Field advanced claims of attorney-client privilege, personal privacy rights, and a fifth amendment right against self-incrimination. First Trust then served a notice of depo sition and a subpoena duces tecum on an officer of Shawmut Bank for certain of Field's trustee bank records. The notice and subpoena also were served on Field pursuant to General Statutes § 36-9L In response to the subpoena, Field filed a motion for a protective order, which the trial court denied. Although he was not present at the hearing when the motion was denied, the trial court permitted him to argue at a subsequent hearing on the protective order. The court again denied the motion and Field appealed. At oral argument in this court, it was agreed by Field and First Trust that Shawmut Bank had complied with the subpoena and that all records sought under that subpoena were in the possession of counsel for First Trust. Mootness implicates the jurisdiction of this court, and we first determine whether this appeal is moot. Good- son v. State, 228 Conn. 106, 114, 635 A.2d 285 (1993). "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . In the absence of an actual and existing controversy for us to adjudicate . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal. . . (Citations omitted; internal quotation marks omitted.) Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981). Because the subpoena in this case has been complied with, no practical relief can follow from this appeal. We therefore conclude that the appeal is moot. A well established exception to the mootness rule is where the issue is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911). Appeals that fit within the exception are those in which the challenged action is "in duration too short to be fully litigated prior to its cessation or expiration . . . and there was reasonable expectation that the same complaining party would be subjected to the same action again." (Internal quotation marks omitted.) Board of Education v. Board of Labor Relations, 205 Conn. 116, 126, 530 A.2d 588 (1987). "The time dimension that the name of the exception implies is necessary but not itself sufficient to invoke our appellate jurisdiction. Rather, we must look to addi tional factors to determine whether we should decide the issue even though it may have no immediate practical consequences to a party. . . . Some of those factors include whether the issue (1) could affect an ongoing program of the state penal or civil system, (2) could affect the complaining party in the future, and (3) involves a matter of public importance. . No one factor is controlling, nor must all of the above factors be present. To decide the applicability of the exception, we must instead review the circumstances of each case." (Citations omitted.) Goodson v. State, supra, 228 Conn. 115. Like mootness, the capable of repetition, yet evading review exception is fact sensitive. Therefore, in our inquiry to decide whether circumstances mitigate in favor of reviewing an appeal under the exception, we must place the facts of the case against the template of Goodson and its progenitors. This appeal is in a curious position in that both the appellant and the appellee urge the court to review the appeal under the capable of repetition, yet evading review exception to the mootness rule. In support of its suggestion that the appeal is reviewable, First Trust states, in an allegation bare of any evidence, analysis or claims of law, that "the trial court's ruling and its application of General Statutes § 36-91 could potentially have a significant effect on the way in which civil litigation in general, and the pretrial process in particular, is conducted in this state." The lack of authority or reasoning relating to this assertion leaves us unpersuaded that this issue implicates a matter of public importance. It is also difficult for us to discern how our decision that the appeal is moot could affect the complaining party in the future. Shawmut already has given all of Field's checks to First Trust. At argument, First Trust alluded to the possibility of a future interest in "wire transfers in Field's account." This allusion, standing alone, does not allow us to conclude that there is a likelihood of any effect on Field in the future, or that he will be unable to seek or obtain relief under § 36-9L We conclude that there is no justification to review this appeal under the capable of repetition, yet evading review exception to the mootness doctrine. Because there no longer exists an actual controversy between the participants and this court can no longer provide any practical relief, we conclude the appeal is moot. The appeal is dismissed. In this opinion the other judges concurred. Lord Byron, Hebrew Melodies, "The Destruction of Sennacherib." The defendants in the foreclosure action are William Hitt, Barbara Izzo and Alphonse Izzo. The Izzos allegedly sold their interest in the real property to Hitt on July 10, 1991, at which time Hitt mortgaged the property to the Prudential Home Mortgage Company. The Izzos contend that they rescinded the transaction within forty-eight hours. Field was present during the transaction and the Izzos claim that he was their attorney at that time. Field claims that he represented Hitt and not the Izzos during that transaction. The Izzos filed eight special defenses alleging, inter alia, fraud, lack of title in Hitt, and rescission. Hitt filed special defenses alleging laches, a violation of the truth in lending law, and lack of mitigation. He also filed a counterclaim alleging eight causes of action against the Izzos. Prudential Home Mortgage Company assigned its interest to the appellee First National, as trustee. Field did not appear at the first deposition and, although he presented himself at the rescheduled deposition, he failed to bring all of the documents that First Trust requested. At no time did Field file a motion to quash this subpoena. General Statutes § 36-9Z provides in pertinent part: "(a) [A] financial institution shall disclose financial records pursuant to a lawful subpoena, summons, warrant or court order served upon it if the party seeking the records causes such subpoena, summons, warrant or court order or a certified copy thereof to be served upon the customer whose records are being sought, at least ten days prior to the date on which the records are to be disclosed, provided a court of competent jurisdiction, for good cause, may waive service of such subpoena, summons, warrant or court order, or certified copy thereof, upon such customer. . . . "(b) A customer of a financial institution shall have standing to challenge a subpoena of his financial records, by filing an application or motion to quash in a court of competent jurisdiction within the ten-day notice period required by subsection (a) of this section. Upon the filing of such application or motion by the customer, and service of such application or motion upon the financial institution and the person issuing the subpoena, production of the records shall be stayed, without liability to the financial institution, until the court holds a hearing on the motion or application and an order is entered sustaining, modifying or quashing the subpoena....." General Statutes § 36-9Z requires that an application or motion to quash be filed, rather than a motion for protective order. See footnote 4. Because, however, the trial court and parties treated Field's motion for protective order as a motion to quash, we will do so as well. Prior to oral argument, First Trust filed a motion to dismiss the appeal for lack of a final judgment, which motion was denied by this court. In its brief and at argument of the appeal itself, First Trust again seeks a dis missal on the ground of the lack of a final judgment. We do not reach this question because of our conclusion that the appeal is moot.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Foti, J. This matter is before us on remand from our Supreme Court. We previously considered it in State v. Cavell, 34 Conn. App. 276, 641 A.2d 426, remanded for reconsideration, 231 Conn. 902, 645 A.2d 1021 (1994). The Supreme Court ordered us to reconsider our judgment in light of State v. Robinson, 230 Conn. 591, 646 A.2d 118 (1994). Having reconsidered, we affirm our prior judgment. The judgment of the trial court is affirmed. In this opinion Heiman, J., concurred.

Berdon, J. The sole issue in this case is whether General Statutes § 53-301, which prohibits a party engaged in the business of selling motor vehicles from selling them on Sunday, violates the state constitution. Because we conclude that § 53-301 violates substantive due process under article first, § 8, of the state constitution we need not reach the plaintiffs' other state constitutional claims. The plaintiffs are nine motor vehicle dealerships located in Danbury. They instituted this suit in order to obtain a declaratory judgment that § 53-301 is unconstitutional, and to enjoin the defendant commissioner of motor vehicles from enforcing the statute. Subsequent to the filing of the suit, the trial court granted the Connecticut Automotive Trades Association, Inc. (CATA), and Tufano Motorcar, Inc., permission to join the suit as defendants. Thereafter, the plaintiffs filed an amended complaint that sought only a declaratory judgment. The parties filed a joint stipulation of facts and petitioned the trial court to reserve three questions concerning the constitutionality of § 53-301 for the advice of this court. The trial court granted the petition for reservation and approved the joint stipulation of facts. The following stipulated facts are relevant. For most of the year, the plaintiff dealerships are open for business Monday through Thursday from 8:30 a.m. to 9 p.m., and Friday and Saturday from 8:30 a.m. to 6 p.m. Currently, Saturday is the busiest and most profitable day for the plaintiffs. The plaintiffs would open for business on Sunday if they were permitted to do so. Section 53-301 has caused the plaintiffs to suffer economic loss in the form of lost potential profits from Sunday sales of new and used automobiles and trucks. Section 53-301 is one of the last vestiges of Connecticut's Sunday closing laws, some of which were first codified in 1650. Caldor's, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 306, 417 A.2d 343 (1979) (Caldor's). In Caldor's, we struck down the general Sunday closing law, General Statutes § 53-302a, as violative of substantive due process under our state constitution. The closing law at issue in this case, § 53-301, was originally adopted as § 1 of No. 614 of the 1957 Public Acts. Section 2 of this act contained the predecessor of § 53-302a. The plaintiffs claim that the substantive due process analysis developed in Caldor's for challenging Sunday closing laws under our state constitution requires us to strike down § 53-301. We agree. We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590, 590 A.2d 447 (1991); Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). While the courts may declare a statute to be unconstitutional, our power to do this should "be exercised with caution, and in no doubtful case." State v. Brennan's Liquors, 25 Conn. 278, 289 (1856). Every presumption is to be given in favor of the constitutionality of the statute. State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Bottom v. Westport, 209 Conn. 652, 657, 553 A.2d 576 (1989). The plaintiffs rely solely on state constitutional grounds to invalidate § 53-301. It is beyond dispute that we are not bound by federal precedents in interpreting our own state constitutional provisions. "[F]ederal decisional law is not a lid on the protections guaranteed under our state constitution." Doe v. Maher, 40 Conn. Sup. 394, 419, 515 A.2d 134 (1986). As we stated in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), "federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection . . . ." (Internal quotation marks omitted.) Nevertheless, we are not precluded from using federal precedents in crafting a framework for state constitutional analysis and in interpreting state constitutional provisions. "Just as it is wrong to assume that state constitutions are mere mirror images of the Federal Constitution, so it is wrong to assume that independent state constitutions share no principles with their federal counterpart. The interstices of open-ended state constitutions remain to be filled, and many of them will best be filled by adopting into state law, on a case-by-case basis, persuasive constitutional doctrines from federal law and from sister states." E. Peters, "State Constitutional Law: Federalism in the Common Law Tradition," 84 Mich. L. Rev. 583, 592-93 (1986); see also Daly v. DelPonte, 225 Conn. 499, 512-13, 624 A.2d 876 (1993) ("[i]n the interpretation of our state constitution, we have often consulted the case law under the federal constitution . . ."); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) ("[t]he adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution"). Furthermore, it is clear that our adoption, for purposes of state constitutional analysis, of an analytical framework used under the federal constitution does not preclude us from concluding that a statute that would be valid under the federal constitution is nevertheless invalid under our state constitution. See, e.g., State v. Miller, 227 Conn. 363, 377-87, 630 A.2d 1315 (1993). The due process clause of article first, § 8, like the similar provision in the federal fourteenth amendment, provides for varying levels of judicial review to deter mine whether a state statute or regulation passes constitutional muster in terms of substantive due process. See Daly v. DelPonte, supra, 225 Conn. 513 ("We have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation will survive an equal protection challenge if it satisfies a rational basis test. . If, however, state action invidiously discriminates against a suspect class or affects a fundamental right, the action passes constitutional muster under the state constitution only if it survives strict scrutiny." [citation omitted]); Doe v. Maher, supra, 40 Conn. Sup. 441-43 (recognizing that varying levels of judicial review are used depending on the nature of the right the statute or regulation impinges upon). We agree with the defendants that § 53-301 neither impairs a fundamental constitutional right nor targets a suspect class, either of which would require that this court apply strict scrutiny to determine whether the statute passes muster under our state constitution. State Management Assn. of Connecticut, Inc. v. O'Neill, 204 Conn. 746, 750, 529 A.2d 1276 (1987). Rather, because § 53-301 merely regulates a commercial activity—the sale of motor vehicles on Sunday—it must be reviewed "in accordance with the rules that normally govern constitutional challenges of economic or social welfare legislation, by ascertaining whether the legislature has acted arbitrarily or irrationally." Connecticut Education Assn., Inc. v. Tirozzi, 210 Conn. 286, 299, 554 A.2d 1065 (1989). Although great constitutional deference is afforded to the legislature, our state due process clause mandates that the legislature must limit the exercise of its police powers to preserving the public peace, health and morals. In re Application of Clark, 65 Conn. 17, 40, 31 A. 522 (1894). "The court's function in examining the constitutional aspect of police legislation is to decide whether the purpose of the legis lation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way." 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 (1957). Even under this less exacting test of constitutionality, an economic regulation will survive a substantive due process test only if it is both rational and related to a legitimate state purpose. Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984); Caldor's, supra, 177 Conn. 315. "If an enactment meets this test, it satisfies the constitutional requirements of due process . . . . Schwartz v. Kelly, 140 Conn. 176, 179, 99 A.2d 89 [1953]; Carroll v. Schwartz, 127 Conn. 126, 129, 14 A.2d 754 [1940]." Pierce v. Albanese, supra, 249. As the first step in our state constitutional analysis, we must ascertain the legislative purpose behind § 53-301 in order to evaluate whether the statute is rationally related to that purpose. As noted above, § 53-301 is one of the Sunday closing laws and was originally adopted in the same legislation; Public Acts 1957, No. 614; as the general closing law struck down in Caldor's. In Caldor's, supra, 177 Conn. 310, we determined that the purpose of these closing laws was to create a common day of rest. "Although in origin such laws were intimately related to the establishment of religious principles, over time their acknowledged purpose and justification have shifted to secular grounds." Id., 306. In an attempt to avoid the state constitutional principles developed in Caldor's for analyzing closing law legislation, the defendants claim that we should speculate concerning other conceivable purposes for the statute. We disagree. As early as the turn of the century, when religious observance was still an acknowledged purpose for the closing laws, this court made clear that such laws were also designed to secure to private citizens the quiet enjoyment of Sunday as a day of rest. Wetherell v. Hollister, 73 Conn. 622, 625, 48 A. 826 (1901). We have reiterated this secular purpose in more modern times. See Caldor's, supra, 177 Conn. 306; State v. Shuster, 145 Conn. 554, 557-58, 145 A.2d 196 (1958); State v. Hurliman, 143 Conn. 502, 507, 123 A.2d 767 (1956). In view of these judicial pronouncements, we presume that the legislature has "knowledge of this longstanding construction which this court has given to the objective and purpose of legislation in this field." Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); see also Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993) (" 'the legislature is presumed to be aware of the judicial construction placed upon its enactments' "). We also presume that the legislature is aware of the effect that its action or inaction will have on an existing statute, and to intend the effect that its action or inaction produces. All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 197, 567 A.2d 1156 (1989). The legislature has not done anything to indicate that § 53-301 has a separate purpose from the other Sunday closing laws, or that the purpose of these laws is not a common day of rest. We must therefore reaffirm the long-standing construction that this court has given to the purpose of the closing laws—that is, "to further a common day of rest." Caldor's, supra, 177 Conn. 325. Because an act with such a purpose "cannot be justified by other unspecified governmental, economic, or social reasons"; id.; we will not speculate as to other conceivable purposes. The courts have recognized that providing a common day of rest for citizens is a legitimate governmental interest. McGowan v. Maryland, 366 U.S. 420, 445, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Caldor's, supra, 177 Conn. 306. That does not, however, end our constitutional inquiry, because we must determine whether the prohibition of the sale of motor vehicles on Sunday bears a reasonable relationship to that purpose. In Caldor's, we recognized the difficulty in making this inquiry. "Because any statement of the rational connection test is necessarily general and open-ended, controversy tends, as in this case, to concern not the test itself but rather its application." Caldor's, supra, 315. Accordingly, in performing our substantive due process analysis under the state constitution, we borrow from the teachings of procedural due process in examining the "totality of circumstances that bear on the rationality" of the statute. Id., 316. In this case, as in Caldor's, there are three aspects of the Sunday closing law at issue that warrant special emphasis in examining the totality of circumstances. First, as the parties concede, § 53-301 is a penal statute. Motor vehicle dealers who violate the statute are subject both to fines and to possible suspension of their dealer's licenses. As a penal statute, § 53-301 must be strictly construed. Id., 318. Second, § 53-301 regulates conduct that would be entirely legitimate in the absence of the statute. We noted in Caldor's, supra, 177 Conn. 317, that "[t]o be constitutionally valid, legislation policing the operation of a legitimate business must serve some phase of the public health, safety, convenience and welfare in a reasonable and impartial way." (Internal quotation marks omitted.) See also Mott's Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 487, 172 A.2d 381 (1961) (invalidating, under the due process clause of the state constitution, a provision of the Unfair Sales Practices Act that provided that proof that a retailer had sold or offered to sell goods below cost would be prima facie evidence of an intent to destroy competition); United Interchange, Inc. v. Spellacy, 144 Conn. 647, 654, 136 A.2d 801 (1957) (invalidating, under the due process and equal protection provisions of the state constitution, a statute requiring individuals who solicit advertisements for real estate periodicals to obtain real estate licenses). While "the legislature has a broad discretion" in fashioning economic legislation, the courts must limit this discretion ' 'at that point where the regulatory measures either fail to serve the public good or serve it in a despotic way." (Internal quotation marks omitted.) Caldor's, supra, 317; see also Mott's Super Markets, Inc. v. Frassinelli, supra, 487; United Interchange, Inc. v. Spellacy, supra, 654. "[Regulations imposed on a lawful business cannot exceed what is reasonably necessary to accomplish their purpose," especially where the regulation imposes penal sanctions for conduct that does not carry "any antisocial implications whatsoever." Caldor's, supra, 318; see also Mott's Super Markets, Inc. v. Frassinelli, supra, 487. Third, as we recognized in Caldor's, supra, 177 Conn. 319, difficulties inhere in legislation designed to provide a common day of rest. As a Sunday closing law, § 53-301 "furthers an objective that is difficult to effectuate with clarity and precision." Id., 316. In Caldor's, the fact that the legislature had provided numerous exemptions from the general closing law led us to conclude that the statute failed to effectuate, in a rational manner, the objective of providing a common day of rest. Id., 324-25. The difficulty in discerning a rational connection between the statute and its objective is even more pronounced in this case, because the legislature has failed to reenact a general Sunday closing law. As a result, almost all commercial enterprises other than motor vehicle dealerships are permitted to open for business on Sunday. Indeed, it appears that, since Caldor's, the legislature has completely abandoned the difficult task of providing a common day of rest for the people of Connecticut. In view of the totality of circumstances set forth above, we conclude that the plaintiffs have proven beyond a reasonable doubt that § 53-301 is arbitrary and therefore violates article first, § 8, of our state constitution. The current statutory scheme fails to provide a common day of rest for Connecticut's people, and we cannot discern any legitimate reason for providing a common day of rest for one narrow class of employees, or, in regard to consumers, from one specific type of purchase. Furthermore, § 53-301 may actually harm the public by making it inconvenient and difficult for people to comparison shop for motor vehicles at different dealerships. For example, the defendants concede that many couples prefer to shop together for a car, but only have time to do so on Sundays and in the evenings. Because § 53-301 prevents them from shopping on Sundays, they are limited to evenings and probably to the dealerships closest to their homes or places of business. Such anticompetitive effects harm all consumers. The second reserved question—that is, does § 53-301 violate the plaintiffs' rights to due process of law guaranteed by article first, § 8, of the Connecticut constitution?—is answered in the affirmative. The case is remanded to the trial court for further proceedings consistent with this opinion. No costs will be taxed in this court to any party. In this opinion the other justices concurred. General Statutes § 53-301 provides: "No person, firm or corporation engaged in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles shall open any place of business or lot wherein he attempts to or does engage in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles, or buy, sell, exchange, deal or trade in new or used motor vehicles as a business on Sunday. Any person who violates the provisions of this section shall be fined not more than fifty dollars for the first offense and not more than one hundred dollars for each subsequent offense. Any licensed motor vehicle dealer who violates the provisions of this section shall, in addition to the fine provided herein, be subject to suspension of license as provided in section 14-64." Article first, § 8, of the Connecticut constitution provides in relevant part: "No person shall be . . . deprived of life, liberty or property without due process of law . . . ." The plaintiffs also claim that General Statutes § 53-301 is discriminatory and violates the equal protection clauses of article first, § 1 and 20, as amended, of the Connecticut Constitution and that § 53-301 is void for vagueness and therefore violates due process under article first, § 8, of the Connecticut constitution. In addition to Fair Cadillac-Oldsmobile Isuzu Partnership, the following are plaintiffs: Fair Hyundai Partnership, Fair Motors Partnership, Fair Chevrolet-Geo Partnership, Fair Infiniti Partnership, Fair Imports Partnership, Danbury-Mt. Kiseo Saturn Partnership, Danbury Auto Partnership and Fair Chrysler-Plymouth Partnership. Pursuant to Practice Book § 388 et seq., which govern actions for declaratory judgments, the plaintiffs were required to provide public notice of the declaratory judgment they sought. The trial court found that "all persons having an interest in the subject matter of this action are now parties to the action or have had reasonable notice thereof," and therefore that the plaintiffs had complied with Practice Book § 390 (d). The defendants do not challenge this finding, which is critical to establishing the trial court's subject matter jurisdiction. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); see also Salamandra v. Kozlowski, 173 Conn. 136, 138, 376 A.2d 1103 (1977) (failure to provide the requisite notice in a declaratory judgment action deprives the trial court of subject matter jurisdiction). In the original complaint, John M. Bailey, chief state's attorney, and Walter D. Flanagan, state's attorney for the Danbury judicial district, were also named as defendants. The plaintiffs subsequently withdrew their complaint as to these two defendants. The trial court reserved the following three questions: "(1) Does General Statutes § 53-301 violate [the] plaintiffs' rights to equal protection of the laws guaranteed by article first, § 1 and 20, of the Connecticut constitution? "(2) Does § 53-301 violate [the] plaintiffs' rights to due process of law guaranteed by article first, § 8, of the Connecticut constitution? "(3) Is § 53-301 unconstitutionally vague in violation of article first, § 8, of the Connecticut constitution?" Practice Book § 4147 provides in relevant part: "A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. . . . "All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer. "The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . ." Practice Book § 4148 provides: "Before any question shall be reserved by any court, counsel shall file in that court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the supreme or the appellate court would be in the interest of simplicity, directness and economy in judicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the supreme or the appellate court." During the summer months, the plaintiff dealerships stay open until 9 p.m. on Friday. The parties stipulated that automobile dealerships in New York may open on Sunday, and that there are customers who purchase cars on Sunday from New York dealers who would otherwise purchase cars from Connecticut dealers, including the plaintiffs. Notwithstanding our determination that the purpose of General Statutes § 53-301 is to provide a common day of rest, we review in this foot note and in footnotes 12 and 13, the alternative purposes proposed by the defendants. The first "purpose" advanced is that "motor vehicle dealers are comprehensively regulated under title 14 [of the General Statutes] by the Motor Vehicle Commissioner (who does no work on Sunday)." The defendants concede that motor vehicle dealerships are permitted to be open on Saturday, Monday and during the evenings, even though the department of motor vehicles (DMV) is closed at these times. Therefore, the fact that the DMV is closed on Sunday does not furnish a rational purpose for the closing law. This is especially true in light of the parties' stipulation that Saturday is the busiest day of the week for motor vehicle dealers, and is also a day when the DMV is open only in the morning. Furthermore, this "purpose" is more like an observation, and the defendants do not explain how the closing law advances the purpose of comprehensively regulating dealers. The second purpose is that "motor vehicles are unlike most other consumer products because of their cost." The defendants claim that allowing dealerships to open seven days a week could lead to higher overhead without significantly higher sales and therefore to lower dealer profits, higher consumer prices, or both, and that the legislature may have wanted to avoid this. The defendants have stipulated, however, that if dealers could open on Sunday, it would be their second busiest and most profitable day after Saturday. If the legislature were truly seeking to hold down dealer overhead through the-mechanism of a closing law, it would force dealers to close on a weekday when sales are slower, rather than on Sunday. Third, the defendants claim that allowing dealers to open on Sunday as well as Saturday "would create an intolerable burden on DMV employees, as they attempted to process all of the new and transferred registrations in a timely manner on Tuesdays . . . ." The defendants have not placed any facts on the record concerning the burden on DMV employees and how Sunday vehicle sales would affect them. Furthermore, the defendants have stipulated that: (1) the DMV has an automated registration system that permits motor vehicles to be registered when the DMV is closed; and (2) in the "vast majority of instances," dealers do not deliver vehicles to customers on the day they are sold. These two facts, which are on the record, wholly undermine the defendants' unsupported claim that allowing dealers to open on Sunday would create an "intolerable burden" for the DMV. Finally, the defendants claim that prohibiting dealers from opening on Sundays makes it easier for DMV personnel to make unannounced site inspections, because they have only six days to cover instead of seven. This claim makes no sense, however, unless DMV personnel must inspect every dealership every day. To the contrary, having seven days available on which to make inspections instead of six would provide DMV personnel with greater flexibility in scheduling inspections and allow a greater number of inspections to be accomplished each week. The defendant commissioner of motor vehicles claims that "[General Statutes] § 53-301 may have been designed to further a day of rest specifically for the operators and employees in the highly regulated, highly competitive business of motor vehicle sales." This objective is accomplished, however, by General Statutes § 53-303e (a), which provides that no employer may "compel any employee engaged in any commercial occupation . . . to work more than six days in any calendar week . . . ." The defendants do not offer any persuasive reason why the legislature would conclude that a common day of rest is needed for employees of motor vehicle dealerships, beyond the mere fact that a majority of full-time dealership employees would prefer not to work on Sunday. Presumably, there are many people in the state of Connecticut who would prefer not to work on Sunday. The defendants have failed, however, to offer a rational reason why the legislature would single out this one group of employees for special protection. The defendants Connecticut Automotive Trades Association, Inc., and Tufano Motorcar, Inc., claim that the legislature "might rationally find that there should be a day of rest for such a major transaction" because "some transactions associated with purchasing a motor vehicle, such as arranging insurance and financing, generally cannot be accomplished on Sundays." This claim makes no sense, however, in light of the defendants' concession that even though insurance and many financing companies are closed on Saturdays and in the evening, motor vehicle dealerships may and do open for business at these times. Furthermore, the defendants concede that other major consumer goods—such as boats, homes and jewelry—are bought and sold on Sundays. In many cases, the purchase of these goods, too, involves financing and insurance arrangements.

The named defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 943 (AC 12114), is denied.

Peters, C. J. The principal issue in this appeal is whether a criminal defendant who is now indigent waived the right to challenge the constitutionality of his incarceration by having previously agreed to a sentence that includes a "committed fine" as part of a bargained-for guilty plea. The petitioner, Jeremias Molinas, filed a petition for habeas corpus, alleging, inter alia, that he was incarcerated solely because of his inability to pay a criminal fine, in violation of his rights to due process and equal protection. The habeas court granted the petition, ordering the petitioner released on parole and remitting the balance of the fine. The respondent, the commissioner of correction (commissioner), appealed from the judgment of the habeas court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm. The record discloses the following undisputed facts. In 1989, the petitioner pleaded guilty, as part of a plea bargain agreement with the state, to one count of possession of narcotics with intent to distribute in viola tion of General Statutes § 21a-278. The trial court sentenced the petitioner to twelve years imprisonment, execution suspended after seven years, five years probation and a $20,000 fine. As part of the sentence, the trial court stated that the "defendant shall stand committed for payment of that fine." Upon defense counsel's inquiry, the court confirmed that it had ordered a "committed fine." On March 23,1993, the petitioner was paroled from his prison term, effective August 1,1993. The petitioner remained incarcerated, however, because he had not paid the fine. The petitioner subsequently filed this petition for habeas corpus challenging his continued incarceration. Following a full hearing on the habeas petition, the habeas court found that "the petitioner's failure to pay the fine results from his financial inability to do so rather than from a willful disregard of his duty to pay." In response to the commissioner's argument that the petitioner had waived any right to relief by agreeing to the "committed fine" when he entered the guilty plea, the court found that "[t]he transcripts of the petitioner's plea canvass and sentencing hearing are devoid of any mention that failure to pay the fine would extend the length of the petitioner's imprisonment. Nor does the record disclose that the petitioner was so advised of this possibility by his counsel. There was no discussion by the trial court with the petitioner that an indigent person cannot be incarcerated solely because he is unable to pay a fine nor that the petitioner was willing to give up that right in order to participate in the plea agreement. Also, his counsel made no reference, on the record, to off the record discussions with the petitioner regarding this waiver." The habeas court held, therefore, that the petitioner had not waived his right to challenge his incarceration for his nonwillful failure to pay the fine. Accordingly, the court ordered the petitioner released. In addition, the court remitted the balance of the fine. The commissioner challenges the validity of the judgment of the habeas court on three grounds. First, as a legal matter, the commissioner argues that the court improperly concluded that the petitioner, by agreeing to a plea bargain that included a "committed fine" as part of the sentence, did not thereby waive whatever constitutional protections might apply to him because of his indigency. Second, as a factual matter, the commissioner argues that the habeas court improperly found the petitioner to be indigent. Third, as a remedial matter, the commissioner claims that even if the habeas court properly determined that the petitioner was entitled to be released, the court abused its discretion in remitting the entire outstanding balance of the fine. We disagree with each of these contentions. I In order to assess the commissioner's claim that the petitioner should be held to have waived his right to challenge the validity of his incarceration on the ground of indigency, it is important to review the underlying constitutional right on which the petitioner relies. In a series of cases evolving out of Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 100 L. Ed. 891, reh. denied, 351 U.S. 958, 76 S. Ct. 844, 100 L. Ed. 1480 (1956) (right of indigent criminal defendant to trial transcript at public expense), the United States Supreme Court has articulated constitutional principles that protect criminal defendants from being punished on account of their indigency. In Williams v. Illinois, 399 U.S. 235, 241, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), the court held that "an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense." The following term, the court held that " 'the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine.' " Tate v. Short, 401 U.S. 395, 398, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), quoting Morris v. Schoonfield, 399 U.S. 508, 509, 90 S. Ct. 2232, 26 L. Ed. 2d 773 (1970) (White, J., concurring). Even more significantly, in the context of a probation revocation hearing instigated because of the probationer's failure to pay a fine, the court subsequently held that "if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his [or her] own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available." Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). Our own statutes and case law incorporate the same principles. "The impact of indigency on a criminal defendant's liability to pay a fine is codified in Practice Book [§§ 929, 931 and 932]." State v. Johnson, 228 Conn. 59, 61, 634 A.2d 293 (1993). These sections provide that "[n]o person shall be incarcerated as a result of his failure to pay a fine unless the judicial authority first inquires as to his ability to pay the fine." Practice Book § 929. Further, "[t]he judicial authority may, upon a finding that the defendant is able to pay the fine and that his nonpayment is wilful, order the defendant incarcerated for nonpayment of the fine." Practice Book § 931. Finally, "[a] defendant incarcerated under Sec. 931, for wilful nonpayment of a fine, shall be released when he pays the fine or when he is otherwise discharged according to law." Practice Book § 932. These sections are "rooted in the constitutional principle that the state may not 'subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.' Williams v. Illinois, [supra, 399 U.S. 242]; see also Bearden v. Georgia, [supra, 461 U.S. 664]; Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d 848 (1981); State v. Zakrzewski, 26 Conn. App. 716, 718, 603 A.2d 432 (1992)." State v. Johnson, supra, 61. In the circumstances of this case, unless the petitioner had effectively waived his rights, these constitutional principles required the petitioner's release from incarceration. The petitioner faced a situation analytically indistinguishable from that confronting the probationer in Bearden. Although the petitioner was never released from incarceration prior to the habeas proceedings, the parole board's decision to grant parole conferred upon the petitioner a significant liberty interest. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) ("the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty"). The testimony at the habeas proceedings indicated, and the habeas court found, that following the board's decision the only barrier to the petitioner's release on parole was his failure to pay the fine and that this failure resulted solely from the petitioner's indigency. As the Ninth Circuit Court of Appeals recognized, prior to Bearden, in a decision relating to a committed fine imposed upon an indigent defendant, "[i]f, under the sentence imposed, the defendant, because of [his or] her financial inability to pay a fine, will be imprisoned longer than someone who had the ability to pay the fine, then the sentence is invalid . . . (Citations omitted.) United States v. Estrada de Castillo, 549 F.2d 583, 584 (9th Cir. 1976). II The commissioner does not dispute the habeas court's characterization of the underlying constitutional principles that govern the incarceration of indigent defendants. His principal contention is that, by accepting a plea bargain that included a "committed fine," the petitioner definitively waived any constitutional right that he might otherwise have had to invoke indigency as a ground for his nonpayment of the fine. We are unpersuaded. The principles that govern the waiver of a constitutional right are well established. For a waiver of a constitutional right to be effective, it must be made knowingly, voluntarily and intelligently. "A waiver is defined as 'an intentional relinquishment or abandonment of a known right or privilege'. . . ." Staton v. Warden, 175 Conn. 328, 334, 398 A.2d 1176 (1978), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Talton v. Warden, 171 Conn. 378, 385, 370 A.2d 965 (1976). "As the United States Supreme Court stated in McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), a waiver 'cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.' " Barlow v. Lopes, 201 Conn. 103, 111, 513 A.2d 132 (1986). In the context of a habeas challenge to a plea bargain, we have applied this standard to the review of the validity of an alleged waiver of the statutory right to appeal a separate conviction. "Since a decision to waive one's statutory right to appeal cannot be said to be know ingly, voluntarily and intelligently made if based upon a misapprehension as to the effect of this action . . . prior to the acceptance of an agreement to waive an appeal pursuant to a plea bargaining arrangement, care should be taken to inform the accused of the appellate rights to which he is entitled and to the consequences of this decision." (Citation omitted.) Staton v. Warden, supra, 175 Conn. 336. Before a defendant can be held to have waived his right to appeal a separate conviction, the record, therefore, must affirmatively disclose that the defendant was apprised of the possible merits of an appeal. Barlow v. Lopes, supra, 201 Conn. 110; Staton v. Warden, supra, 335. We discern no reason for departing from this standard in the circumstances of this case. To establish a valid waiver of the petitioner's claim of indigency, the commissioner would have had to have made an affirmative showing that the petitioner, at the time of the plea bargain, was apprised of, and understood, the contours of the constitutional right not to be incarcerated because of indigency and the consequences of a waiver of that constitutional right. Such an affirmative showing would require evidence that the petitioner had been advised that: (1) he had a constitutional right not to be incarcerated solely because of his inability to pay a fine; (2) he would waive that right by agreeing to the committed fine; (3) the effect of a waiver would be that he would not be released on parole until the fine was paid, regardless of the reason for its nonpayment; (4) to pay off the committed fine, he would earn credits during his incarceration, subsequent to his parole, in accordance with a disclosed rate schedule; and (5) he would retain the right to pay the outstanding balance of the fine at any time during his incarceration and could thereby remove his ineligibility for early release. In the absence of any such showing, the commissioner's categorical claim of waiver cannot be sustained. The requirements for a knowing, voluntary and intelligent waiver are not diminished by the fact that the alleged waiver occurred in the context of a plea bargained sentence. The plea bargain itself did not alert the petitioner to the right at issue because its alleged impact on his continued incarceration did not become apparent until several years later, when his parole became effective. See State v. Johnson, 29 Conn. App. 584, 589, 617 A.2d 174 (1992) ("a challenge to the fine imposed is not ripe for review until the failure to pay becomes the cause of any prolonged incarceration"), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993); State v. Zakrzewski, supra, 26 Conn. App. 719. A guilty plea does not foreclose a petitioner from challenging any constitutional defect in the sentence that arises subsequent to the plea. Cf. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973) (a defendant who has pleaded guilty "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea" [emphasis added]). Similarly, a guilty plea itself does not establish an inference of waiver even though the guilty plea resulted in a sentence more favorable to the petitioner than he might otherwise have received. "[W]e recognize that the better the bargain, the more likely the petitioner would voluntarily have waived his right . Such a bargaining process cannot, however, displace the requirement that the petitioner be fully informed so that his choice to bargain away his right . . . is made knowingly and intelligently." Barlow v. Lopes, supra, 201 Conn. 114. Any other rule would mean, as a practical matter, that no challenge to an alleged waiver arising out of a bargained-for guilty plea could ever be reviewed, because agreement to a plea bargain presupposes that the petitioner initially perceived the bargain to be favorable. For these reasons, we reject the commissioner's claim that the petitioner has waived his right to assert his indigency as a ground for an order releasing him from further incarceration. The record supports the findings of the habeas court that the petitioner, in pleading guilty, did not knowingly, voluntarily and intelligently waive his right not to be incarcerated for his subsequent nonwillful failure to pay the fine. Ill In the alternative, if we were to disagree with his argument that the petitioner waived his constitutional claim as a matter of law, the commissioner challenges the validity of the trial court's factual finding that the petitioner is indigent. Absent a showing of indigency, the petitioner would not be entitled to the benefit of the constitutional safeguards that the habeas court invoked on his behalf. In making its finding of indigency, the habeas court observed: "When first incarcerated, the petitioner attempted to run a restaurant operation [that he owned] from prison without success. The business went bankrupt. As a result of his conviction and incarceration, the petitioner lost his job at a Waterbury shelter. This case appears to the court to be one where the petitioner genuinely lacks the economic wherewithal to meet the fine, and not one where the petitioner has squandered resources, otherwise available to pay the fine, for other purposes. The petitioner's failure to pay the fine up to this point, even though payment would have resulted in his immediate release into the community on parole as early as some six months ago, strongly indicates to the court that the petitioner is truly unable to garner the funds necessary to pay the fine." The commissioner maintains that, in making this finding, the court improperly failed to evaluate the resources of the petitioner's family. In support of his position that the habeas court was required to look beyond the petitioner's own assets, the commissioner cites language from Bearden v. Georgia, supra, 461 U.S. 668, that a defendant must make "all reasonable efforts" to pay the fine. In particular, the commissioner emphasizes that the petitioner's family previously had raised sufficient funds to post a pretrial bond and pay private counsel. Assuming the accuracy of the legal standard advocated by the commissioner, we are nonetheless persuaded that the habeas court's finding of indigency was adequately supported by the record. Nothing in the record of the proceedings before the habeas court indicates that it limited its inquiry to the petitioner's personal assets. Indeed, the last sentence of the finding quoted above strongly suggests otherwise. Furthermore, testimony at the habeas hearing suggested that the liquid assets that had been used by the family to post the pretrial bond no longer were available for payment of the fine. In light of this record, we conclude that the habeas court's factual finding of indigency was not clearly erroneous. We therefore conclude that the habeas court made a proper finding concerning the petitioner's indigency. Accordingly, we concur in its conclusion that the petitioner is entitled to be released from incarceration in accordance with the order of parole. IV Lastly, we address the commissioner's argument that, even if the petitioner was entitled to be released, the habeas court improperly remitted the outstanding balance of the petitioner's fine. The commissioner maintains that the court's decision to release the petitioner from further incarceration did not require the court also to remit his fine, and that the court's decision to do so was an abuse of its discretion. We agree with the commissioner that the constitutional violation found by the habeas court did not compel the remedy of remission. The right identified in the Bearden line of cases protects only against incarceration on the basis of indigency. The " '[sjtate is not powerless to enforce judgments against those financially unable to pay a fine.' " Bearden v. Georgia, supra, 461 U.S. 672; Tate v. Short, supra, 401 U.S. 399; Williams v. Illinois, supra, 399 U.S. 244. The United States Supreme Court has, for example, sanctioned the use both of extensions of the time period for payment and of sentences of community service in lieu of payment as permissible means by which the state may enforce its penological interests against indigent criminal defendants. See Bearden v. Georgia, supra, 672. The habeas court was empowered, nonetheless, to remit the fine if it judged that "such course will tend to the reformation of offenders or the furtherance of the ends of justice." General Statutes § 54-74. Although the habeas court did not explain why it decided to remit the fine, the evidence in this case established that the petitioner had been incarcerated for a period of almost eight months after he should have been released on parole. In light of that factual background, and the commissioner's apparent failure to propose alternate sanctions to the habeas court, we conclude that the habeas court did not abuse its discretion by deciding to remit the fine. The judgment is affirmed. In this opinion the other justices concurred. The petitioner's third amended habeas petition, dated September 10, 1993, is in three counts. In count one, he asserts that his incarceration for inability to pay the fine violates the due process clause of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. In count two, he asserts that this incarceration also violates the equal protection clause of the fourteenth amendment and article first, § 20, of the state constitution. In count three, the petitioner asserts that he was denied effective assistance of counsel in violation of the sixth and fourteenth amendments and article first, § 8, of the state constitution. The habeas court granted the motion to quash count three, and the petitioner has not challenged that decision on appeal. As of the date of the habeas hearing, the outstanding amount on the fine had been reduced to $16,520 due to credits the petitioner had received for the time served. After the petitioner had been paroled from the prison sentence, the state had credited twenty dollars against the outstanding balance of the fine for each day of the petitioner's continued incarceration, applying the rate codified at General Statutes § 18-50. General Statutes § 21a-278 (formerly § 19-480a) provides in relevant part: "PENALTY FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION OR ADMINISTRATION BY NON-DRUG-DEPENDENT PERSON, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person's mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution." The terms of the initial plea bargain called for the petitioner to plead guilty in return for a sentence recommendation by the state of twelve years imprisonment. No previously reported case in any Connecticut state court employs the term "committed fine." Federal regulations provide that "[i]n any case in which a prisoner shall have had a fine imposed upon him by the committing court for which he is to stand committed until it is paid or until he is otherwise discharged according to law, such prisoner shall not be released on parole or mandatory release until payment of the fine, or until the fine commitment order is discharged according to law under the regulations of the Bureau of Prisons. Discharge from the commitment obligation of any committed fine does not discharge the prisoner's obligation to pay the fine as a debt due the United States." (Emphasis added.) 28 C.F.R. § 2.7 (a) (1994); see also Solomon v. Elsea, 676 F.2d 282, 284 n.1 (7th Cir. 1982). The petitioner's probation records indicate that the board of parole released the petitioner "to Detainer ([$]20,000 committed fine)." In the habeas proceedings, the records supervisor at the Webster Correctional Institution testified that, following the board's decision, the petitioner would have been released on parole once the outstanding balance on the fine had been paid. Although the trial court specifically asked the petitioner whether he understood that, by entering a guilty plea, he would be waiving his rights against self-incrimination, to confrontation and to a jury trial, the court never mentioned the right not to be incarcerated on the basis of indigency. The entire discussion concerning the "committed fine" during the plea canvass consisted of the following exchange: "The Court: Now, you understand that I have indicated to your lawyer that all things being equal, that I would impose a sentence in this case of twelve years suspended after eight years with a five year period of probation and a twenty thousand dollar committed fine. Do you understand that? "The [Petitioner]: Yes, I do." The United States Supreme Court has recognized that "[d]ue process and equal protection principles converge in the Court's analysis in these cases." Bearden v. Georgia, supra, 461 U.S. 665. The court illustrated this point in Bearden, in which the petitioner's probation had been revoked for failure to pay a fine, explaining that "[tjhere is no doubt that the State has treated the petitioner differently from a person who did not fail to pay the imposed fine and therefore did not violate probation. To determine whether this differential treatment violates the Equal Protection Clause, one must determine whether, and under what circumstances, a defendant's indigent status may be considered in the decision whether to revoke probation. This is substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine." Id., 665-66; compare Williams v. Illinois, supra, 399 U.S. 241 (employing equal protection analysis) with id., 259-66 (Harlan, J., concurring) (employing due process analysis). Because the habeas petition in this case contains both due process and equal protection claims, we need not decide whether our decision is more appropriately grounded in a due process or an equal protection analysis. At the time that this case arose, the rules of practice did not address whether a judicial authority was required to determine whether a defendant, who had been imprisoned under a sentence of incarceration and also ordered to pay a fine, had the ability to pay the fine as a condition of his continued incarceration after the period of incarceration had been served. Effective October 1, 1994, Practice Book § 932A now provides: "When a defendant has been sentenced to a term of imprisonment and ordered to pay a fine, the mittimus shall state that if the fine has not been paid by the time the sentence has been served the defendant may not continue to be incarcerated unless the judicial authority has found that the defendant is able to pay the fine and that the defendant's nonpayment is wilful." In his brief to this court, the commissioner asserted that the habeas court exceeded the scope of the petition when it inquired whether the petitioner's consent to the sentence at the plea canvass constituted a knowing and voluntary relinquishment of his right not to be incarcerated on the basis of indigency. According to the commissioner, the only issues properly before the habeas court were the due process and equal protection claims themselves. In raising these claims, however, the petitioner also necessarily raised by implication the claim that his rights to due process and equal protection had not been knowingly and voluntarily waived by his guilty plea. Furthermore, in his special defenses to the habeas petition, the commissioner himself directly raised the question of whether the petitioner could challenge his incarceration when he alleged that, at the time of the plea, the petitioner "understood" the sentence that was to be imposed. Although the United States constitution does not provide a defendant the right to appeal a criminal conviction; see Griffin v. Illinois, supra, 351 U.S. 19; McKane v. Durston, 153 U.S. 684, 687-88, 14 S. Ct. 913, 38 L. Ed. 867 (1894); we have held that "a defendant's statutory right to appeal is fundamental and must be'jealously protected' . . . ." (Citations omitted.) Barlow v. Lopes, supra, 201 Conn. 109. The petitioner has not argued that the constitutional rights at issue in this case can never be waived. Since a committed fine only prevents a convicted defendant from being granted early release when the fine has not been paid; see footnote 5; in no event could the period to be served for failure to pay the fine exceed the amount of time remaining on the defendant's prison sentence. Cf. United States v. Estrada de Castillo, supra, 549 F.2d 584. For example, had the petitioner in this case been found not to be indigent, his incarceration for failure to pay the $20,000 fine could not have continued beyond the three years that remained on his seven year sentence at the time he was paroled from his prison term to the fine. Expiration of the prison term before the fine had been paid in full, however, while requiring that a defendant be released, would not automatically relieve the defendant of the obligation to pay or work off the fine. See part IV of this opinion. We need not decide whether, under other circumstances, a waiver of the constitutional rights at issue here may require additional disclosures beyond those we have specified today. Accordingly, we do not reach the petitioner's assertion that the judgment of the habeas court could also be affirmed on the alternate ground that the fine initially imposed by the trial court was not authorized under the relevant statutes. See General Statutes § 21a-278, 53a-41 and 53a-44. We note that the petitioner failed to raise this claim in the habeas court. The commissioner did not avail himself of the opportunity to file a motion for articulation. Practice Book § 4051. The effective date of the petitioner's parole was August 1,1993. The petitioner was not released, however, until after the Appellate Court refused to stay the habeas court's judgment in late March, 1994.

Per Curiam. The sole issue in this environmental case is whether General Statutes § 22a-452 (a) imposes strict liability upon a prior landowner for a subsequent landowner's costs of cleaning up a contaminated landfill. The plaintiff, the Connecticut Resources Recovery Authority, brought an action to recover for the costs of cleanup of real property previously owned by the defendants, Refuse Gardens, Inc., and its officers, directors and shareholders. The plaintiff filed an application for a prejudgment remedy pursuant to General Statutes § 52-278a et seq. on count four of its complaint, in which it sought reimbursement from the defendants under § 22a-452 (a). The trial court, after a hearing, denied the plaintiff's application and the plaintiff appealed to the Appellate Court pursuant to General Statutes § 52-278l. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the ruling of the trial court. The issue that divides the parties is the meaning of the phrase in § 22a-452 (a) that permits a private per son, firm, corporation or municipality to seek reimbursement from "any person, firm or corporation" for the costs of environmental restoration for pollution resulting "from the negligence or other actions of such person, firm or corporation." (Emphasis added.) By contrast, General Statutes § 22a-451 (a) permits the commissioner of environmental protection to recover the costs of environmental restoration from "[a]ny person, firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state . . . ." (Emphasis added.) The latter section permits the recovery of enhanced damages if a defendant's conduct was negligent or wilful. Both sections derive from No. 765 of the 1969 Public Acts. The trial court concluded that the legislature intended § 22a-452 (a) to require a showing of culpability and not merely causation. Because the plaintiff had not alleged such culpability on the part of the defendants, the court denied the plaintiffs application for a prejudgment remedy. Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 43 Conn. Sup. 83, 642 A.2d 762 (1994). The plaintiff urges us to overturn the trial court's decision and to direct the granting of a prejudgment remedy. Our examination of the record on appeal, and the briefs and arguments of the parties, persuades us, however, that the decision of the trial court should be affirmed. The trial court carefully examined the language and the history of § 22a-452 (a) in light of the plaintiff's pleadings in this case. The trial court's thoughtful and comprehensive memorandum of decision fully states and meets the arguments raised by the parties on this appeal. Accordingly, we adopt the trial court's well reasoned decision as a correct statement of the facts and the applicable law on the contested issue. It would serve no useful purpose for us to repeat the discussion therein contained. See Daw's Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Loeb v. Al-Mor Corp., 224 Conn. 6, 7, 615 A.2d 149 (1992). The denial of the plaintiffs application for a prejudgment remedy on count four of its complaint is affirmed. General Statutes § 22a-452 provides in relevant part: "REIMBURSEMENT FOR CONTAINMENT OR REMOVAL COSTS. LIABILITY FOR CERTAIN ACTS OR OMISSIONS, (a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other aetions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby." General Statutes § 52-278d provides in relevant part: "hearing on PRE JUDGMENT REMEDY APPLICATION. DETERMINATION BY THE COURT. SERVICE OF PROCESS, (a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j." This statute was amended effective January 1, 1994, by Public Acts 1993, No. 93-431, § 2, 10. General Statutes § 52-278Í provides in relevant part: "appeal, (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal." General Statutes § 22a-451 provides in relevant part: "liability for POLLUTION, CONTAMINATION OR EMERGENCY. EMERGENCY SPILL RESPONSE fund, (a) Any person, firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state or causes an emergency through the discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes or which owns any hazardous wastes deemed by the commissioner to be a potential threat to human health or the environment and removed by the commissioner shall be liable for all costs and expenses incurred in investigating, containing, removing, monitoring or mitigating such pollution and contamination, emergency or hazardous waste, and legal expenses and court costs incurred in such recovery, provided, if such pollution or contamination or emergency was negligently caused, such person, firm or corporation may, at the discretion of the court, be liable for damages equal to one and one-half times the cost and expenses incurred and provided further if such pollution or contamination or emergency was wilfully caused, such person, firm or corporation may, at the discretion of the court, be liable for damages equal to two times the cost and expenses incurred. The costs and expenses of investigating, containing, removing, monitoring or mitigating such pollution, contamination, emergency or hazardous waste shall include, but not be limited to, the administrative cost of such action calculated at ten per cent of the actual cost plus the interest on the actual cost at a rate of ten per cent per year from the date such costs and expenses were paid. The costs of recovering any legal expenses and court costs shall be calculated at five per cent of the actual costs, plus interest at a rate of ten per cent per year from the date such costs were paid. Upon request of the commissioner, the attorney general shall bring a civil action to recover all such costs and expenses." The amicus urges us to construe General Statutes § 22a-452 (a) to sustain the plaintiff's cause of action in light of the desirability of encouraging private parties to clean up environmental problems on their own. The amicus notes that private initiatives are especially important to assist the commissioner of environmental protection in times of strained personnel and financial resources. This argument might well persuade the legislature to broaden the scope of § 22a-452 (a), but it does not enable us to rewrite the text of the statute. Without clear statutory guidance, we cannot presume that the legislature intended to impose strict liability on former landowners. Even the imposition of liability for negligence on former landowners is a substantial deviation from the common law rule of caveat emptor. The common law rule continues to have vitality even though it has given way to liability for negligence in special cases such as those involving the defective construction of buildings or their appurtenances by builder-vendors of real property. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975); see generally 2 Restatement (Second), Torts § 352 and 372 (1965); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 64, pp. 446-48.

Palmer, J. The defendant, Richard Patterson, was convicted, after a trial to a three judge court, of murder in violation of General Statutes § 53a-54a (a). The defendant appealed from the judgment of conviction claiming that: (1) the state failed to prove the element of intent beyond a reasonable doubt; and (2) the evidence presented by the defendant established, as a matter of law, the affirmative defenses of insanity and, in the alternative, extreme emotional disturbance. After hearing oral argument, we remanded the case to the three judge court for an articulation of the facts underlying its determination that the defendant had committed the crime of murder. State v. Patterson, 227 Conn. 448, 629 A.2d 1133 (1993). The articulation rendered by the court pursuant to our remand sets forth its factual findings and explains its reasons for rejecting the defendant's affirmative defenses. Because the factual findings of the three judge court are supported by the evidence, we affirm the judgment of conviction. The court stated that it had found the following facts. On October 21, 1988, at approximately 9 p.m., Desmond Clark entered a variety store on Stratford Avenue in Bridgeport. Clark saw an acquaintance, Nesbourne Wright, in the store, and asked him for a ride home. Wright agreed, and the two men left the store and proceeded toward Wright's car. On their way to the car, they were approached by the defendant, a distant cousin of Clark's, who also requested a ride from Wright. Wright agreed to give the defendant a ride as well. As Wright and his two passengers walked to Wright's car, the defendant stated that three men had sexually assaulted his girlfriend. Wright responded that he did not know what the defendant was talking about. When they arrived at the car, the defendant sat in the front passenger seat and Clark sat in the rear, behind the driver, Wright. Wright drove directly to the defendant's house and double-parked on the street in front. The defendant, however, requested that Wright "take Clark home first." When Wright indicated that he was "not coming back this way," both Clark and the defendant exited the car. Immediately thereafter, Clark heard several gunshots from the direction of the car and, frightened, ran to the house of a relative that was located next door to the defendant's residence. As Clark fled, he observed the defendant running in the direction of his own house with a gun in his hand. The Bridgeport police were called to the scene, where they found Wright slumped over in the driver's seat of the car, bleeding profusely from a wound to the head. Wright died shortly thereafter. An autopsy revealed that the cause of death was a bullet fired at close range to Wright's right temple. That bullet was extracted from Wright's head during the autopsy. A second bullet was removed from the dashboard of Wright's car by the police. On October 24,1988, police officers executed a search warrant at the defendant's apartment and found two handguns, including a .38 caliber revolver wrapped in an old pair of pants, hidden beneath the turntable of a stereo set in the defendant's bedroom. A forensic firearms examiner determined that both the bullet recovered from Wright's head and the bullet recovered from his car had been fired from the .38 caliber revolver discovered in the defendant's bedroom. The defendant presented the testimony of several expert witnesses and family members in support of his affirmative defenses of insanity and extreme emotional disturbance. The court rejected those defenses, however, and unanimously found the defendant guilty of the crime of murder. The defendant has appealed from the judgment of the court sentencing him to a term of imprisonment of forty-five years to be suspended after the expiration of thirty-five years. I The defendant first claims that the state failed to prove beyond a reasonable doubt that he shot the victim with the intent to kill him. We disagree. Upon appellate review of a claim of evidentiary insufficiency, "[w]e first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court. . We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court . . . could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. . . (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 73-74, 621 A.2d 728 (1993); State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991). "That the [trier of fact] might have drawn other possible inferences from [the evidence] is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt." (Internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 304, 636 A.2d 351 (1994); State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539 (1985). In order to establish that the defendant had the requisite intent to commit murder, the state bears the burden of proving, beyond a reasonable doubt, that the defendant caused the death of another with the conscious objective to do so. General Statutes § 53a-3 (11) and 53a-54a. That the defendant acted with the specific intent to kill may be proven solely by circumstantial evidence, as long as that evidence establishes beyond a reasonable doubt that the defendant had the conscious objective to take the life of another. State v. Rasmussen, supra, 225 Conn. 74; State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). The defendant's intent to kill, therefore, may be inferred from evidence of the defendant's use of a deadly weapon, the manner in which the weapon was used, and the nature and number of wounds inflicted. State v. Medina, supra, 228 Conn. 303-304; State v. Rasmussen, supra, 74. "Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." (Internal quotation marks omitted.) State v. Medina, supra, 303; State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973). The evidence introduced at trial supported the facts found by the trial court and its determination that the defendant had intentionally killed the victim. The state presented testimony from which the court concluded that the defendant had fatally shot the victim in the head from close range with a .38 caliber revolver. There was also testimony that the defendant had asked the victim to take Clark home first, evidence from which the court could reasonably have inferred that the defendant had sought to exclude Clark as a possible witness to the shooting. In addition, the evidence supported the court's findings that the defendant had: (1) intentionally concealed a revolver on his person prior to using it to shoot the victim; (2) fled from the scene immediately after fatally wounding the victim; (3) hidden the murder weapon subsequent to the shooting to avoid its detection by the authorities; and (4) left his residence and the city of Bridgeport for several days after the fatal encounter. Furthermore, the court expressly found that the defendant's concealment of the murder weapon and his flight after the shooting reflected a consciousness of guilt. We conclude, therefore, that the evidence was sufficient to permit the three judge court to have found beyond a reasonable doubt that the defendant had intended to kill the victim. II The defendant also claims that the evidence he introduced at trial established, as a matter of law, his affirmative defenses of insanity and, in the alternative, extreme emotional disturbance. We conclude that because the court's rejection of the defendant's affirmative defenses is reasonably supported by the evidence, his claim must fail. In support of his affirmative defenses, the defendant presented the testimony of three psychiatrists and a clinical psychologist, as well as several family members who described the defendant's bizarre behavior and his mental and physical deterioration in the two years prior to the fatal shooting. Joseph More, a psychiatrist at the Whiting Forensic Institute (Whiting), testified that the defendant suffered from chronic paranoid schizophrenia and that his beliefs were, at times, illogical, irrational and delusional. More further testified that the defendant had suffered from this illness for at least one year prior to the shooting, and that his mental condition was not the result of drug abuse. Ann Hoefer, a psychiatrist who had been retained by the state, agreed that the defendant suffered from chronic paranoid schizophrenia, that he had suffered from the illness for a considerable period of time prior to the shooting, and that he had experienced hallucinations and delusions that resulted in the development of a belief system that bore little or no relationship to reality. Hoefer stated that on the day of the shooting, the defendant had experienced a hallucination in which two men had restrained the defendant's girlfriend while the victim had sexually assaulted her, and that this hallucination had compelled the defendant to kill the victim. A third psychiatrist, Jeremy August, corroborated the diagnoses of More and Hoefer that the defendant had suffered from paranoid schizophrenia and that his bizarre and unusual behavior had been the result of delusional thinking and auditory hallucinations caused by his mental illness. August also testified that the defendant had told him that he had killed the victim because it had been God's will that he do so. Charles Opsahl, a clinical psychologist, testified that he had conducted certain psychological tests on the defendant and that, on the basis of those tests, he had concluded that the defendant was psychotic. Opsahl also opined that the defendant's illness made it difficult for him to distinguish between fantasy and reality, and that his disturbed thought patterns were the result of his psychosis. Finally, several of the defendant's family members, including his mother and sister, testified that his mental health had deteriorated markedly and progressively over the two year period prior to the shooting. Each of these witnesses testified concerning the defendant's strange and apparently irrational behavior, and recited specific incidents of such conduct. Other relatives testified that during the two years prior to the shooting, the defendant had heard inner voices speaking to him, had walked naked through the streets of Jamaica during a visit there, had searched through his neighbor's garbage, had talked and chanted to himself, often recit ing passages from the bible, had made bizarre and fantastic claims about his past, had maintained an unkempt appearance and failed to attend to matters of personal hygiene, had refused to leave his home for long periods of time, and had claimed to be the Messiah. The evidence offered by the state in derogation of the defendant's affirmative defenses consisted of the cross-examination of the defendant's witnesses and testimony from two rebuttal witnesses, a Bridgeport police detective and a psychiatric nurse, along with certain documentary evidence. On cross-examination, family members of the defendant conceded that he was not a violent person, that he had been able to change certain behavior patterns when requested to do so, that he had received a promotion at his place of employment, and that he had exhibited no unusual conduct on the day of the shooting. On cross-examination, More testified that he recalled no aggressive or violent behavior by the defendant during his six month hospitalization at Whiting. More also acknowledged that, during the defendant's hospitalization, he had been at all times properly oriented as to time and place, that he had admitted the wrongfulness of his conduct, that he had been able to follow instructions and to conform his conduct to the rules and regulations of the institution, that he had participated in special activities at the hospital, serving as his unit's representative on the editorial committee of the patient newspaper and assisting in the planning of a charity fundraiser, and that he had interacted appropriately with other patients. More acknowledged that a person suffering from schizophrenia is not necessarily unable to distinguish between right and wrong, and he conceded that he could only conjecture as to the defendant's mental condition at the time of the shooting. He also noted that the defendant had been diagnosed as a cannabis abuser, and that such abuse may trigger or aggravate a psychotic episode. Finally, More testified that the defendant had regularly advised fellow patients on how to manipulate and deceive the staff at Whiting. On cross-examination, Hoefer agreed that persons suffering from schizophrenia can frequently understand the difference between right and wrong and that they are often able to conform their conduct accordingly. She also acknowledged that the defendant had a longstanding cannabis habit, that he smoked five to ten marijuana cigarettes daily, that he had smoked marijuana on the day of the shooting, and that the use of that drug can aggravate a psychotic episode. Hoefer further testified that she had not had sufficient time to review the entire medical record of the defendant's hospitalization at Whiting. The third psychiatrist, August, concurred that not all persons suffering from chronic paranoid schizophrenia are unable to distinguish between right and wrong, and that such persons are sometimes able to conduct themselves appropriately. August noted that he had found no documentation of any unusual behavior by the defendant while the defendant had been incarcerated at the Bridgeport correctional center from October 24, 1988, until his confinement at Whiting in March, 1989. August also acknowledged that he had been unaware both that the defendant had concealed the .38 caliber revolver prior to shooting the victim and that the police had found two weapons at the defendant's residence. He testified that those facts could suggest that the shooting was premeditated and that the defendant had been able to appreciate the wrongfulness of his conduct. Finally, August indicated that the defendant's mother had told him that the defendant had suffered memory lapses after he smoked marijuana. The state's rebuttal case consisted of testimony from Detective James Uliano of the Bridgeport police department and Sueanne O'Brien, a psychiatric nurse at the Bridgeport correctional center, as well as certain records relating to the defendant's incarceration at the Bridgeport correctional center. Uliano testified that he had been informed by the defendant's mother that the defendant became "crazy" when he smoked marijuana. O'Brien identified several documents from the Bridgeport correctional center, including a psychiatric evaluation of the defendant that noted that he had twice denied any psychiatric complaints or problems, and a report indicating that the defendant had claimed to be a Rastafarian. The three judge court acknowledged that the defendant's behavior prior to October 21,1988, "could be considered unusual, strange, and even antisocial." The court concluded, however, that most of the conduct attributed to the defendant by his family members appeared to be a manifestation of his religious beliefs. The court also found that the defendant had not revealed that he had heard inner voices until after the shooting, that he had not exhibited any bizarre or unusual behavior on the day of the shooting, that he was capable of conforming his conduct to the requests of family members, and that his advice to other patients at Whiting on how to "fool" the staff revealed a calculating and manipulative personality. The court, moreover, expressly discounted the testimony of the defendant's experts, noting that their diagnoses were based on the generally self-serving interview statements of the defendant and his family members. In the court's view, those experts had failed adequately to account for the defendant's apparently premeditated attack on the victim, his efforts thereafter to avoid detection and apprehension, and his equally calculated attempts to manipulate the diagnostic staff at Whiting. The court also noted that the defendant's experts had agreed that persons suffering from paranoid schizophrenia are not necessarily una ble to distinguish between right and wrong, and that the expert testimony had failed to demonstrate that the defendant, at the time of the fatal shooting, had been unable to do so. On the basis of these findings, the court rejected the defendant's affirmative defenses, concluding that the defendant had failed to establish by a preponderance of the evidence that, at the time of the shooting, he had lacked substantial capacity, due to a mental disease or defect, either to appreciate the wrongfulness of his conduct or to conform his conduct as required by law, or that, in the alternative, he had acted under the influence of an extreme emotional disturbance. "[W]e have repeatedly stated that our review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury, is limited. . . . This court will construe the evidence in the light most favorable to sustaining the trial court's [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses on the issue of sanity is determined by the trier of fact. . In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert's expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them." (Citations omitted; internal quotation marks omitted.) State v. Steiger, 218 Conn. 349, 378-79, 590 A.2d 408 (1991); see also State v. Medina, supra, 228 Conn. 309; State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). The three judge court heard and evaluated conflicting evidence concerning the defendant's sanity at the time of the shooting. Although the defendant's witnesses testified that the defendant had suffered from a mental illness that had caused him to behave in a strange and eccentric manner in the months leading up to the shooting, concessions elicited from those same witnesses upon vigorous cross-examination by the assistant state's attorney, together with the evidence introduced by the state, raised substantial questions regarding the observations and conclusions of the defendant's witnesses. Furthermore, "[bjecause the trier of fact can disbelieve any or all of the evidence on insanity and can construe that evidence in a manner different from the parties' assertions"; State v. Steiger, supra, 218 Conn. 381; the fact that expert witnesses testified on behalf of the defendant and the fact that the state called none do not establish that the court could not reasonably have found that the defendant failed to prove insanity by a preponderance of the evidence. State v. Medina, supra, 228 Conn. 309-10; State v. Perez, supra, 182 Conn. 608-10. We will not, moreover, substitute our judgment for that of the fact finder with respect to the weight to be given the testimony of the expert and lay witnesses on the issue of the defendant's sanity. Because the evidence reasonably supported the determination of the court that the defendant had not established his affirmative defense of insanity by a preponderance of the evidence, he was not entitled to a judgment of acquittal as a matter of law. The defendant has similarly failed to demonstrate that the evidence required the court to accept his alternative affirmative defense of extreme emotional disturbance. In order to prevail on that defense, the defendant bore the burden of proving, by a preponderance of the evidence, that he had committed the offense under the influence of an extreme emotional disturbance, and, that there was a reasonable explanation or excuse for his extreme emotional disturbance. In interpreting the meaning of the phrase "extreme emotional disturbance," we have stated that the trier of fact must be persuaded that: "(1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) 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 feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions." State v. Forrest, 216 Conn. 139, 147-48, 578 A.2d 1066 (1990); State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979). These guidelines are "neither conclusive nor exclusive, however, for '[i]n the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier, aided by expert testimony of both sides, but left to its own factual determinations.' " State v. Forrest, supra, 148, quoting State v. Zdanis, supra, 182 Conn. 395. There was evidence from which the three judge court could reasonably have determined that the defendant had planned his attack on the victim and that he had calmly and deliberately executed that plan. Moreover, the trial testimony indicated that the defendant had not exhibited any behavior on the day of the shooting to suggest that he had killed the victim in a fit of rage or passion, or under the influence of a similarly extreme emotion. Furthermore, the evidence permitted the court to find that the defendant had not killed the victim in the delusional belief that the victim had sexually assaulted the defendant's girlfriend, or that, even if the defendant had acted under such a delusion, he was not also acting under the influence of an extreme emotional disturbance. We conclude, therefore, that the evidence provided a sufficient basis for the three judge court to reject the defendant's affirmative defense of extreme emotional disturbance. The judgment is affirmed. In this opinion, Callahan and Borden, Js., concurred. General Statutes § 53a-54a provides in relevant part: "murder, (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 . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts 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. "(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person." The defendant appeals directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: "The following matters shall be taken directly to the supreme court . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony . . . for which the maximum sentence which may be imposed exceeds twenty years . . . ." General Statutes § 53a-13 provides in relevant part: "(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. "(b) It shall not be a defense under this section 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." Practice Book § 4061 provides in relevant part: "If the court deems it necessary to the proper disposition of the cause, it may remand the case for further articulation of the basis of the trial court's factual findings or decision." Clark testified that he had not known that the defendant had been in possession of a handgun until he observed the defendant running from the car after the shooting. Kurt Nolte, the pathologist who had performed the autopsy on Wright, estimated that the bullet had been fired from a distance of between one inch and four feet from Wright's head. General Statutes § 53a-12 (b) provides: "When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence." The defendant was hospitalized at Whiting from March 2, 1989, until August 1, 1989. "[T]he determination of the reasonableness of the explanation or excuse for the emotional disturbance must be measured from the viewpoint of a reasonable person in the defendant's situation under the circumstances as the defendant believed them to be." State v. Steiger, supra, 218 Conn. 385; see also State v. Ortiz, 217 Conn. 648, 656-58, 588 A.2d 127 (1991).

Dupont, C. J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a. The defendant raises three issues on appeal. They are whether the trial court improperly (1) denied the defendant's motion to depose a potential witness, (2) limited the scope of the defendant's cross-examination, and (3) instructed the jury on circumstantial evidence and the presumption of innocence. We affirm the judgment of the trial court. The jury reasonably could have found certain facts. On the night of August 30, 1991, the victim, Ricardo Figueroa, and his girlfriend, Frances Carrasquillo, stood outdoors talking with several people. The area was illuminated primarily by streetlights. Around 11 p.m., the defendant, with his hands in his pockets, swiftly approached the victim. When the defendant was about three feet away from the victim, he pulled out a gun and shot the victim in the head and the leg. The victim died as a result of his injuries. This was not the first encounter between the victim and the defendant. One month earlier, the defendant, the victim, and a third person, Raymond Zukowski, had engaged in a fight outside the defendant's house. During this altercation, the defendant sliced Zukowski's temple with a knife. The victim and Zukowski retaliated by beating the defendant with golf clubs. As a result of this beating, the defendant was taken to the hospital. The defendant threatened to avenge his injuries. I The defendant's first issue on appeal concerns the trial court's denial of his motion to depose Carrasquillo, who was standing next to the victim when he was shot. Additional facts are relevant to this claim. Shortly after the murder, the police interviewed Carrasquillo, showing her three arrays of photographs, including one that contained a picture of the defendant. When Carrasquillo saw the defendant's photograph, she paused for a second or two before moving on to the next photograph. Carrasquillo did not identify the defendant, or anyone else, as the assailant. At the time of the defendant's probable cause hearing in October and November, 1991, Carrasquillo had moved from where she lived at the time of the shooting to a different location in Hartford. Although the state had difficulty locating her, the defendant, with the help of a private investigator, was able to discover Carrasquillo's whereabouts. Carrasquillo voluntarily attended the probable cause hearing. Because the trial court determined that her proposed testimony concerning her failure to identify a photograph of the defendant as the assailant would not be sufficient to rebut probable cause, the defendant's request to call her as a witness at the probable cause hearing was denied in accordance with General Statutes § 54-46a. In December, 1991, the defendant filed a motion to preserve testimony of a material witness by means of a deposition. The defendant claimed that it was necessary to depose Carrasquillo because (1) she was a material witness who failed to identify the defendant's picture as the assailant's in a photographic array shown to her by the police and who, at the probable cause hearing, told the defendant's counsel that the defendant was not the man who had shot the victim, (2) at the time of the probable cause hearing the state had difficulty locating her, (3) the defense found it necessary to hire a private investigator to locate her for the defendant's probable cause hearing, (4) she was a nervous fifteen year old, (5) she was two years older than the state's witnesses, (6) one state's witness had to be summoned by capias to appear at the probable cause hearing, (7) it was difficult to predict when the trial would take place, (8) it was generally difficult to find witnesses for this trial, and (9) unlike the testimony of the state's witnesses, there was no opportunity to preserve her testimony at the probable cause hearing. The trial court reasoned that the defendant's suspicions concerning the availability of this witness at trial could be applied to every witness in a murder case and could turn every criminal trial into a series of minitrials. The court denied the motion. The trial took place almost a year after the motion to preserve testimony was filed. Carrasquillo did not testify. The state and the defendant stipulated to certain facts concerning Carrasquillo, which were reported to the jury. These were the detailed description of the assailant that Carrasquillo had provided to the police, and the facts that she did not know the defendant before the shooting, that a failed attempt to issue a sub poena to her had been made on the day before trial, that at the time of trial her whereabouts were unknown, and that neither the state nor the defendant was capable of producing her for trial. Further, the court gave the defendant leeway in questioning a police witness about Carrasquillo's statements and the state discussed in its closing argument Carrasquillo's failure to select the defendant's photograph from the array. On appeal, the defendant asks this court to grant a new trial because the trial court denied his motion to depose Carrasquillo. The defendant argues that the trial court required a showing of absolute unavailability before it would grant a deposition. The defendant, therefore, concludes that the court denied the motion because it believed that it did not have the discretion to grant it. Alternatively, the defendant argues that the trial court did exercise its discretion but abused that discretion in interpreting the language of Practice Book § 791. We disagree with both claims. Practice Book §791 allows the trial court to use its discretion. The trial court exercises its discretion to determine whether the moving party has satisfied any of the three requirements of the section. The language of § 791 "if it appears to the judicial authority" and "may issue" grant this discretion to the court. The defendant argues that the trial court construed Practice Book § 791 in such a way as to allow depositions only where it can be proved conclusively that the witness will be unable to testify at trial. To support this argument, the defendant refers to statements made by the trial court during the hearing on the motion to depose. Specifically, the trial court commented that if the defendant could return with a report that the witness was leaving the state or with some other information that would come within the third prong of Practice Book § 791, the trial court would order the deposition. At no point did the trial court indicate that the evidence absolutely had to establish that the witness would be unable to testify. The trial court merely asserted that the defendant had to provide some basis to satisfy Practice Book § 791 and that if the defendant could provide the court with the evidence required by the rule of practice the court would grant the motion. The trial court's exercise of discretion is further supported by its inquiries into where the witness was living and where she went to school. These inquiries indicate that the court used its discretion in applying Practice Book § 791. We conclude that the trial court properly exercised its discretion. The next step in our analysis is to determine whether the defendant is correct in asserting that this court should look at the trial court's decision in light of events that occurred at trial, rather than in light of the facts as they were a year earlier when the trial court was asked to render the decision. The defendant's proposed standard would require us to incorporate the fact that the witness eventually failed to testify, as well as the stipulations of fact agreed to by the parties at trial. When a trial court considers a motion to depose, it cannot know whether the witness will eventually testify. See State v. Hamilton, 228 Conn. 234, 241, 636 A.2d 760 (1994) (review of trial court's denial of motion for continuance to retain private counsel). If this court were to look with hindsight at the denial of a motion to depose to determine whether a trial court abused its discretion, we would be expecting trial courts to be clairvoyant, with the possibility that we might reverse them on grounds that are entirely divorced from the reasons for their decisions. We should, therefore, look at the facts as they existed when the trial court rendered its ruling. Under Practice Book § 791, a trial court has the discretion to grant a deposition of a potential witness if his testimony may be required at trial and if it appears to the judicial authority that one of three circumstances are present. The first circumstance is whether the witness "[w]ill, because of physical or mental illness or infirmity, be unable to be present to testify," the second is whether the witness resides out of state, and the third is whether the witness, "[wjill otherwise be unable to be present to testify at any trial or hearing." Practice Book § 791. At issue in this matter is the third circumstance. The third situation of Practice Book § 791 requires the moving party to convince the court that the witness will be unable to testify at trial. The section does not require absolute certainty, but requires a strong likelihood that the witness will be unable to testify. See State v. Darby, 19 Conn. App. 445, 455, 563 A.2d 710, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). The trial court must look at the totality of circumstances to determine whether the moving party has met its burden. The reasons provided by the moving party in this matter were not sufficient to demonstrate any likelihood that Carrasquillo would be unable to testify at trial. For example, the defendant's assertions that Carrasquillo was a material witness and that she was two years older than the state's witnesses have no relation to whether the witness would be able to testify at trial. The reasoning that another state's witness had to be summoned by capias to appear at the probable cause hearing, or that, in general, it was difficult to find witnesses for the trial, has no bearing on whether another individual will be able to be present to testify. Carrasquillo was difficult to locate before the probable cause hearing because she had moved. Once Carrasquillo was located, she voluntarily appeared and was willing to testify at the probable cause hearing. This would suggest a likelihood that Carrasquillo would appear at trial as well. The defendant's assertion that he was concerned about the time lag between the date of the motion for deposition and the likely date of trial is not a reason why this witness would not be able to testify at the later date. Finally, the fact that the state has the mechanism of the probable cause hearing to preserve the testimony of its material witnesses, whereas, the defendant has only the possibility of depositions by which to preserve the testimony of his material witnesses, cannot abrogate the directive of Practice Book § 791 that the defendant must satisfy the rule's requirements. The trial court did not abuse its discretion when it denied the defendant's motion to depose Carrasquillo. II The defendant also argues that the trial court improperly limited the scope of the defendant's cross-examination. Certain additional facts are relevant to this claim. Vannon Shelton, a witness to the crime, was taken to the police station after the murder. At the station, Shelton provided the police with a sworn statement that asserted that Shelton was 50 percent certain that the defendant had shot the victim and 100 percent certain that the defendant had engaged in a fight with the victim a month earlier. At the probable cause hearing, Shelton testified under oath that he was 100 percent certain that the defendant had shot the victim and 100 percent certain that the defendant had been involved in an altercation with the victim the previous month. Shelton also stated that he was not under oath when he gave the original statement to the police. At trial, prior to Shelton's testimony, the state called Detective James C. Rovella to the stand. On cross-examination, the defense asked Rovella whether the statement that Shelton gave to the police was a sworn statement. The state objected. Outside the presence of the jury, counsel for the defendant told the court about Shelton's change of testimony at the probable cause hearing and said that the question was being asked in anticipation of Shelton's testimony at trial. The prosecutor stated that he would not object to the question and the jury was called back. Rovella then testified that he was present when Shelton gave his statement at the police station and that he was present when Shelton swore to the truth of the statement. Immediately before Shelton testified, outside the presence of the jury, the prosecutor indicated to the court that although he thought it was legitimate to cross-examine Shelton about whether Shelton had made a false statement to the police, it was not material to cross-examine Shelton about whether he was under oath when he made the statement. The state moved for an in limine ruling that would prevent counsel from eliciting testimony from Shelton concerning whether he was under oath when he gave his statement to the police, reasoning that the jury already had testimony from Rovella that the defendant had been under oath. The trial court granted the motion, to which the defendant excepted. When the defense cross-examined Shelton, the jury learned that although Shelton was 100 percent certain at trial that the defendant was the assailant, he was only 50 percent certain when he spoke to the police. Shelton asserted that he told the police that he was only 50 percent certain that the defendant was the assailant because he was scared at that time. When the defense asked Shelton if he had lied to the police, Shelton responded that he had no comment. The defense then asked if Shelton had made the statement to the police under oath. The state objected to the question and the trial court sustained the objection. The defendant argues that he should be granted a new trial because the trial court's restriction of the defendant's cross-examination of Shelton violated the defendant's constitutional rights to confrontation. In the alternative, the defendant argues that the trial court abused its discretion by impermissibly limiting the defendant's cross-examination of Shelton. We disagree with both claims. "The confrontation clauses of both the federal and state constitutions grant a criminal defendant the right to confront all witnesses who testify on behalf of the state." (Internal quotation marks omitted.) State v. Crosby, 34 Conn. App. 261, 272, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). Specifically, "[a] witness may be impeached by evidence of specific acts of misconduct that relate to veracity . . . [including] testimony that [the witness] lied under oath . . . ." State v. Suarez, 23 Conn. App. 705, 709, 584 A.2d 1194 (1991). "The right to cross-examine adverse witnesses is not absolute, however, and limitations on the scope of cross-examination are within the sound discretion of the trial court . . . ." (Internal quotation marks omitted.) State v. Crosby, supra, 34 Conn. App. 272. For example, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things . . . confusion of the issues . or interrogation that is repetitive or only marginally relevant." (Internal quotation marks omitted.) State v. Lee, 229 Conn. 60, 70, 640 A.2d 553 (1994), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). "[W]e must first determine whether the trial court allowed minimum cross-examination to satisfy the constitutional requirements for confrontation. . . . If the constitutional standards for confrontation are satisfied, we must next determine whether the trial court abused its discretion by restricting cross-examination." State v. Crosby, supra, 34 Conn. App. 272-73. "In order to satisfy [the constitutional] standards, the court must allow the defendant to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the witness." (Internal quotation marks omitted.) Id., 273. Here, the defendant was able to elicit, by inference from Shelton, that Shelton had lied to the police when he said that he was 50 percent certain the defendant was the shooter. The jury already had heard, during the cross-examination of Rovella, that the witness was under oath when he gave his statement to the police. The repetition of Rovella's testimony that the witness was under oath or a denial by Shelton that he was under oath would have added nothing new for the consideration of the jury. We are satisfied that there was no violation of the defendant's constitutional right of confrontation. "To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial." Id. The defendant here had a full and fair opportunity to cross-examine the witness about his statements to the police. The jury was aware, from Rovella's testimony, that the witness was under oath when he made those statements to the police. The defendant was not prejudiced by the trial court's limitation of the defendant's cross-examination. Ill In this final claim, the defendant asks us to consider whether the trial court's instructions on circumstantial evidence and the presumption of innocence were improper. The defendant argues that the trial court's instructions on circumstantial evidence diluted the state's burden of proof beyond a reasonable doubt. The defendant contends that he should be awarded a new trial because the trial court did not give the jury an affirmative charge on the standard of proof to be applied to circumstantial evidence. More specifically, he contends that the trial court did not inform the jury that the underlying facts, if essential to proof of an element, and accompanying inferences, had to be proved beyond a reasonable doubt. We analyze this claim in three steps. First, we will assess the reviewability of the matter. Second, we will determine whether it is appropriate to evaluate the charge as a whole or to inspect with close scrutiny that portion of the charge concerning circumstantial evidence. Finally, we will consider whether the charge diluted the state's burden of proof beyond a reasonable doubt, and, if so, whether the constitutional violation clearly deprived the defendant of a fair trial. The defendant did not file a request to charge on circumstantial evidence, nor did he take an exception to the instruction that he now challenges on appeal. While ordinarily this would preclude review of this issue, the defendant has asked us to examine the matter under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40. "The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself." (Internal quotation marks omitted.) State v. Cardany, 35 Conn. App. 728, 733, 646 A.2d 291 (1994), quoting .State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994); see Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992). Here, the first two prongs of Golding are satisfied. There is an adequate record for review and "the right not to be convicted except by proof beyond a reasonable doubt is a constitutional right." State v. Graham, supra, 33 Conn. App. 442. Thus, we will review the defendant's claim. We must first determine whether our review of the charge should be limited to an examination of that portion of the instruction that concerns circumstantial evidence or whether we should examine the charge as a whole. The defendant urges us to consider only the circumstantial evidence portion of the jury charge. In support of this argument, the defendant directs our attention to the State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), line of cases. The defendant argues that the close scrutiny standard is appropriate in this case because the principal factual issue is a mixture of intent and identity rather than identity alone. State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), and State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), on which State v. Whelan, supra, 200 Conn. 743, rests, concern instructions where the trial court alluded to a "preponderance of the evidence" standard, jíhere is no question that a charge that allows a jury to find a fact essential to prove an element of a crime with proof less than beyond a reasonable doubt, whether that proof be by circumstantial or direct evidence, is improper. If such a charge on circumstantial evidence is given, the question becomes whether a jury would be misled. To answer that question, State v. Whelan, supra, 757, holds that the reviewing court should look at the instruction as a whole if the principal disputed issue was identity but look at the charge on circumstantial evidence in isolation if the principal disputed issue was intent. Here, the claimed erroneous statement — "you must consider all of the evidence in light of reason, experience, and common sense" — was not, in and of itself, erroneous. See State v. Sinclair, 20 Conn. App. 586, 596-97, 569 A.2d 551 (1990); State v. Wright, 9 Conn. App. 275, 281-82, 518 A.2d 658 (1986), cert. denied, 203 Conn. 802, 522 A.2d 293 (1987). It does not indicate to the jury that the state's burden of proof is anything less than beyond a reasonable doubt. The defendant argues that the instructions at issue here are more erroneous than a "more probable than not" charge because the jury was permitted to draw inferences without the application of any standard to the underlying facts it found. In the "more probable than not" type of charge, the trial court may risk putting an erroneous standard before the jury. Here, there was no such erroneous instruction. In fact, it is likely that the jury was led to believe that the state had to prove beyond a reasonable doubt all underlying facts rather than just those essential to proof of an element of the crime. See State v. Rodgers, supra, 198 Conn. 53. This would make the burden of the state even higher than that constitutionally required. The instruction on circumstantial evidence given in this case did not suggest to the jury that the state's burden of proof was something less than beyond a reasonable doubt, but rather, gave no guidance as to the proper standard of proof. In State v. Woodard, 27 Conn. App. 786, 609 A.2d 1027, cert. denied, 223 Conn. 917, 614 A.2d 831 (1992), and State v. Sinclair, supra, 20 Conn. App. 586, this court looked at the charge as a whole when the defendant questioned jury instructions that were similar to the one at issue in this case. We, therefore, will examine the court's circumstantial evidence instruction in the context of the charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. Looking at the charge as a whole, we conclude that the trial court did not impermissibly dilute the state's burden of proof beyond a reasonable doubt. The state is not required to prove every inferred fact beyond a reasonable doubt before it may be considered a basis for an additional inference. State v. Crafts, 226 Conn. 237, 246-47, 627 A.2d 877 (1993). "It is only where a single fact is essential to proof of an element . . . that such evidence must support the inference of that fact beyond a reasonable doubt." (Internal quotation marks omitted.) Id., 246. Although the trial court did not use this specific language in its charge, the court did repeat the state's burden of proof many times throughout the charge. For example, the trial court asserted that "the state must prove beyond a reasonable doubt, first, that the defendant intended to cause the death of another person and, second, that in accordance with that intent the defendant caused the death of, that person. . . . "In order to convict Mr. Zaporta of murder you must first find that he caused the death of Ricardo Figueroa. You must find that proved to you beyond a reasonable doubt. You must also find proved beyond a reasonable doubt that Mr. Figueroa died as a result of the actions of Mr. Zaporta. . . . "The state has the burden of proving beyond a reasonable doubt that the defendant was the'perpetrator of this crime. ." We are satisfied that the court's instructions, when read as a whole, did not dilute the state's burden of proof beyond a reasonable doubt. Consequently, the defendant has failed to satisfy the third prong of Golding because he was not clearly deprived of a fair trial. Second, the defendant claims that the trial court undermined his constitutional right to the presumption of innocence and lessened the state's burden of proof beyond a reasonable doubt when it included in its charge to the jury that the presumption of innocence "is made to protect the innocent and not the guilty." "It is well established that the challenged jury instructions [similar to those in the present case] regarding the presumption of innocence and the burden of proof are the same or similar to jury instructions that previously have been approved . . . provided that these instructions, when considered in the context of the entire jury charge, do not undermine the presumption of innocence or dilute the burden of proof." (Citations omitted; internal quotation marks omitted.) State v. Bush, 33 Conn. App. 253, 266-67, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994). Bush relied on the recent Supreme Court decisions State v. Walton, 227 Conn. 32, 63, 630 A.2d 990 (1993), and State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992). Although the defendant directs our attention to State v. Ellis, 31 Conn. App. 923, 626 A.2d 1, cert. granted, 227 Conn. 902, 630 A.2d 73 (1993), where an issue similar to the one here was included among the issues that were granted certification by the Supreme Court, we refrain from acting to change the precedent in this area. Until the Supreme Court reverses itself on the issue, we must follow its precedent. State v. Napoleon, 12 Conn. App. 274, 282, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); see also O'Connor v. O'Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985), rev'd on other grounds, 201 Conn. 632, 519 A.2d 13 (1986). Looking at the charge as a whole, the trial court adequately conveyed to the jury the defendant's presumption of innocence and the state's burden of proof. The judgment is affirmed. In this opinion the other judges concurred. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court. General Statutes § 54-46a (b) provides in pertinent part: "At the close of the prosecution's case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause." The defendant's offer of proof at the probable cause hearing did not include Carrasquillo's statement to defense counsel. Practice Book § 791 provides: "In any case involving an offense for which the punishment may be imprisonment for more than one year the judicial authority, upon request of any party, may issue a subpoena for the appearance of any person at a designated time and place to give his deposition if his testimony may be required at trial and it appears to the judicial authority that such person: "(1) Will, because of physical or mental illness or infirmity, be unable to be present to testify at any trial or hearing; or "(2) Resides outside of this state, and his presence cannot be compelled under the provisions of Gen. Stat., § 54-82Í; or "(3) Will otherwise be unable to be present to testify at any trial or hearing." The defendant also argues that he suffered the deprivation of a variety of federal constitutional rights. He argues that unless Practice Book § 791 is construed to allow him to depose Carrasquillo, he is deprived of the right to present witnesses in his own behalf. The defendant does not, however, analyze the constitution in relation to the rules of practice to support his position, and we choose not to consider his argument. See State v. Geisler, 25 Conn. App. 282, 284 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992). The parties have not argued that General Statutes § 54-86, the statute concerning depositions in criminal matters, is applicable. They have relied solely on the rules of practice. General Statutes § 54-86 (a) provides: "In any case involving an offense for which the punishment may be imprisonment for more than one year, the superior court or a judge thereof may, upon the application of the accused, order that the deposition of a witness shall be taken before a commissioner or magistrate, to be designated by the court or judge, if it appears that his testimony will be required at trial and that, by reason of bodily infirmity or residence out of this state, he will be unable to testify at trial." Since both the statute and the rule of practice concern procedure rather than jurisdiction; see generally State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974); and the parties have argued only the rule of practice, we decide the issues based on the rule of practice. The following is the portion of the transcript to which the defendant refers this court: "I'm going to deny your motion. . If you can come back to me with something to say that this young girl is leaving, or whatever — is going to be physically not within the state of Connecticut in the very near future. . . . The thing is, I would just say that if you can come within the third ground under § 791, that she'll be unable to be present to testify at any trial — bring that to my attention, and I'll order the deposition. . . . But now, you really have to just have your investigator contact her again. And just have her come in and say — I'm going to be leaving in March to go to Puerto Rico. If that's the case, I'll do it. . . ." The record reflects no evidence that either of the first two circumstances was present. In this case, the state and the defendant stipulated to the basic facts to which the witness would have testified had she been present at trial, which comes close to preserving the testimony of a material witness. The trial court stated in its charge to the jury: "There are generally speaking two kinds of evidence, direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence. . . .You are entitled to consider both kinds of evidence. The law permits you to give equal weight to both, but it is for you to decide what weight you will give to any evidence. "By way of example — if you woke up this morning and saw that the sidewalk was wet you might find that it rained during the night. Other evidence such as a turned on garden hose might explain the water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence you must consider all of the evidence in light of reason, experience and common sense. "As I said, proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact, but that you may use circumstantial evidence to find the facts proven." The Whelan line of cases began with a potential conflict between two Supreme Court decisions in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), and State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985). InState v. Reddick, supra, 197 Conn. 130-31, the defendant claimed "that the court's instructions concerning circumstantial evidence and the right of the jury to draw inferences . . . permitted the jury to infer and find proven the defendant's intent . by a fair preponderance of the evidence rather than beyond a reasonable doubt." The Supreme Court looked at the charge as a whole and determined that the instruction did not dilute the state's burden of proof. Id., 132. In State v. Rodgers, supra, 198 Conn. 57, the defendant claimed "that the requisite standard of proof beyond a reasonable doubt was impermissibly diluted by the trial court's instruction that an inference may be drawn provided 'that it is more probable that the fact to be inferred is true.' " Here, the Supreme Court asserted, "[ojrdinarily, for a determination of whether the jury has been misled, a charge is to be read as a whole, and detached clauses are not to be considered by themselves but in connection with the whole. . . . We cannot bring the case within the purview of this rule. . . . The present case particularly called for a correct instruction on the meaning and utilization of circumstantial evidence in a criminal case. There exists such a contradiction between the erroneous instruction and the admixture of correct doctrine that as a whole it cannot be said that the incorrect statement did not influence the jury." (Citation omitted.) Id., 58-59. The Supreme Court found error in the instruction. Id., 60-61. In State v. Whelan, supra, 200 Conn. 743, the Supreme Court reconciled the two opinions. The court held that, "[wjhere the principal factual issue is intent, which is characteristically proven by circumstantial evidence . . . the court's instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny. . . . Alternatively . . . where . . . the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court's instructions may be read 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." (Citations omitted; internal quotation marks omitted.) Id., quoting State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49 (1986). State v. Rodgers, supra, 198 Conn. 60, decides the question left unanswered by State v. Reddick, supra, 197 Conn. 115. Rodgers held that it is improper to instruct "the jury that an inference may be drawn if it is more probable that the fact to be inferred is true" (internal quotation marks omitted); State v. Rodgers, supra, 60; if the fact is essential to an element of the crime. In State v. Woodard, supra, 27 Conn. App. 790, the defendant asked us to reverse his conviction because the trial court, among other things, "never told the jury that facts to be inferred from circumstantial evidence must be proved beyond a reasonable doubt . . . ." The instruction given was verbatim to that in the present case, except that the court immediately added, " '[K]eep in mind that facts essential to the ultimate inference of guilt must be proved beyond a reasonable doubt.' " Id. In the present case, a sentence of similar import was given but did not immediately follow the instructions on circumstantial evidence. In State v. Sinclair, supra, 20 Conn. App. 595-96, the trial court instructed the jury that " '[circumstantial evidence of an event is indirect evidence, that is, the testimony of the witnesses or evidence by exhibits as to the existence of certain facts or . . . other events from which . . . the jury may logically and reasonably conclude that the events in question did happen . [Wjith circumstantial evidence the jury first has to determine the credibility of the witnesses and the exhibits and then decide whether the facts testified to do exist. Then they have to decide whether the happenings of those events or existence of those facts lead logically to the conclusion that other facts existed and/or other events occurred and ultimately that this crime was committed by the defendant.' " If this case fit the dichotomy of intent and identity instructions as discussed in State v. Whelan, supra, 200 Conn. 743, we would similarly hold that the charge should be examined as a whole because clearly the defense was lack of identification of the defendant as the victim's assailant, rather than lack of intent on the part of the shooter to cause the death of the victim. The trial court stated: "It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged and by making the state meet its burden of proving guilt beyond a reasonable doubt. But you must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it is the sworn duty of the jury to enforce the law and to render a verdict of guilty."

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Landau, J. The plaintiff, Russell Geren, appeals from the judgment of the trial court rendered on a jury ver diet in favor of the defendants, the Brookfield board of education and Michael Perrone. Geren claims that the trial court improperly (1) commented on the evidence in its charge to the jury, (2) failed to create an appropriate record of the trial proceedings, (3) failed to charge the jury regarding his liberty interest claim, (4) denied counsel access to the courtroom during part of the trial proceedings, (5) found that he was not entitled to a hearing pursuant to General Statutes § 10-151 to determine the issue of the voluntariness of his resignation, and (6) refused to admit testimony concerning employee rules and written board policies. We affirm the judgment. The jury reasonably could have found the following facts. Geren was a tenured high school teacher employed by the Brookfield board of education. During the fall of 1987, he handed a series of flirtatious notes and a birthday card to a sixteen year old female student. Upon receiving the last note, the student showed Geren's correspondence to her parents, who contacted the school principal. After the principal ordered Geren to have no contact with the student pending completion of the investigation, Geren approached her and inquired why she had reported him. A defendant Michael Perrone, the superintendent of the school, was apprised of the situation and ordered Geren suspended with pay pending resolution of the matter. Shortly thereafter, Perrone met with Geren to discuss the student's allegations. Geren contended that he could not recall writing the notes because at the time of the correspondence he had been under extreme stress as a result of the stock market crash of October, 1987. Perrone discussed the seriousness of the matter, suggested that Geren resign, and indicated that he would seek Geren's termination in the absence of a resignation. On December 16,1987, the board of education voted to consider the termination of Geren's contract of employment pursuant to General Statutes § 10-151, the Teacher Tenure Act. Subsequently, Geren agreed to resign in exchange for his being placed on leave with pay for one year and receiving $3500 in "job location" assistance. On December 21,1987, the board accepted Geren's resignation, effective December 31, 1988. In August, 1988, Geren wrote to the board of education, revoking his resignation on the ground that it had been induced by pressure from the defendants while he was afflicted with depression and stress. Perrone refused to accept the revocation. Thereafter, Geren filed a writ of summons and revised complaint alleging that the defendants' failure to hold a hearing to determine the voluntariness of his resignation deprived him of a "property and liberty interest" without procedural due process and breached his employment contract. After a verdict and judgment for the defendants on both counts, this appeal followed. I Geren first claims that the trial court improperly commented on the evidence in its charge to the jury regarding the issue of whether he was capable of making an intelligent, knowing, and voluntary resignation. The effect of the comments, Geren asserts, was that the trial court usurped the fact-finding function of the jury. At trial, Geren introduced and the court admitted a medical report addressed to his psychiatric condition. In it, Arthur Africano, a psychiatrist, diagnosed Geren as having an "adjustment disorder" and an "obsessive-compulsive personality." Africano, who did not testify, drew no conclusions in the report as to whether these conditions had a bearing on Geren's ability to resign voluntarily. He expressed no causal connection between the diagnosis and Geren's act of resignation. Geren now objects to the following portions of the trial court's charge: (1) "The case is silent with respect to any professional testimony about the impact of these manifestations upon his ability to make a knowing, voluntary and intelligent decision with regard to his resignation"; (2) "The manifestations, Geren's categorizations and Africano's diagnosis fall far short medically of establishing any inability to reach a knowing, voluntary and intelligent choice or decision or judgment on the alternatives available to him"; and (3) "You certainly can consider his mental status. He described it to you, but you must also remember there's no professional evidence that says he could not make a free choice . . . ." "In reviewing a challenge to jury instructions, we must examine the charge in its entirety." Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991). "While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury." (Internal quotation marks omitted.) Id., quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991). The matter of commenting on evidence rests within the discretion of the trial court and impropriety will be found only where that discretion has been abused. Heslin v. Malone, 116 Conn. 471, 477-78, 165 A. 594 (1933); Felsted v. Kimberly Auto Services, Inc., supra, 25 Conn. App. 669. It is not only the right, but often the duty of the trial court to comment on the evidence. Felsted v. Kimberly Auto Services, Inc., supra, 669. Accordingly, it is sometimes proper for the court to remark on the absence of particular evidence; see id., 670; and "[i]t is no objection to such comments that they will tend to uncover the weakness of a weak case . . . ." (Internal quotation marks omitted.) Heslin v. Malone, supra, 477. The trial court's discretion in this matter is tempered only by the mandate that its com ments be reasonable and fair and not misstate facts or evidence. Id. "The nature and extent of such comment must largely depend upon the facts involved in the particular case and the manner in which it has been tried." Id., 478. In this case, the trial court pointed out to the jury that Geren had presented no direct medical evidence proving that he was incapable of voluntarily resigning. Rather, Geren offered a medical report and other evidence from which that inference might be drawn. In highlighting this distinction, the trial court did not remove from the jury the question of whether Geren voluntarily resigned. A review of the record and the entire charge confirms that the trial court did not abuse its discretion in this case. II Geren next claims that the trial court failed to create a proper record of the proceedings. He complains that the court maintained no record of the portion of testimony that was read back to the jury in response to a particular inquiry from the jury. "If a claim on appeal is nonconstitutional in nature, the burden of establishing that the error was harmful is on the appellant." State v. Williams, 231 Conn. 235, 250, 645 A.2d 999 (1994); State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). For this reason, bare assertions of error, devoid of analysis, are insufficient to warrant appellant review. Gaudio v. Gaudio, 23 Conn. App. 287, 311, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.22d 471 (1990); State v. Franklin, 20 Conn. App. 96, 99, 563 A.2d 1383 (1989). Here, Geren asserts that the court's failure to maintain the missing portion of testimony constitutes prejudicial error. He does not define, however, which portion is missing, nor what issue he would have raised were the transcript available. He also does not analyze the specific harm resulting from his inability to raise that issue. Accordingly, we decline to review this claim because it has been inadequately briefed. Practice Book § 4065; State v. Yopp, 35 Conn. App. 740, 750, 646 A.2d 298 (1994). Ill Geren next asserts that the trial court improperly failed to charge the jury on his claim that the defendants' actions deprived him of a constitutionally protected liberty interest. Geren argues that he pleaded all of the facts necessary to sustain a liberty interest claim under the fourteenth amendment to the United States constitution, and that the trial court was therefore obligated to charge the jury on such a claim. In its memorandum of decision dated October 13, 1992, the trial court stated that its decision not to charge was based on Geren's failure to set forth in his complaint allegations sufficient to raise a liberty interest claim. "It is axiomatic that the parties are bound by their pleadings." Calabro v. Calabro, 33 Conn. App. 842, 847, 639 A.2d 1046 (1994). Consequently, "[cjlaims of error addressed to the charge are tested by the pleadings and by the evidence relevant to the claimed error as presented in narrative form (with appropriate reference to pages of the transcript) in the parties' briefs." Tierney v. American Urban Corp., 170 Conn. 243, 250, 365 A.2d 1153 (1976). The trial court "should submit to the jury all issues as outlined by the pleadings and rea sonably supported by the evidence." Calabro v. Calabro, supra, 847; see also Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). Conversely, "[tjhe court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding." Calabro v. Calabro, supra, 847, quoting Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). "[Tjhe interpretation of pleadings is always a question of law for the court. . . ." (Citations omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). Thus, in order to evaluate the trial court's decision not to charge the jury on a liberty interest claim, we must first decide whether its conclusion that the allegations in Geren's complaint failed to plead such a claim was "legally and logically correct." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). The gist of Geren's liberty interest claim is that, in the absence of a presuspension or postsuspension hearing at which he might explain his actions, he will be subject to "ridicule and stigmatization" and his standing in the community will be denigrated. In the context of public employment, an interest in one's "good name, reputation, honor, or integrity" is included within the constitutional protection of liberty. See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). Thus, when a public employer suspends or terminates an employee in a manner "that might seriously damage his standing and associations in the community" or might impose on him "a stigma or other disability that foreclose[sj his freedom to take advantage of other employment opportunities," a liberty interest under the due process clause is impaired. Board of Regents v. Roth, supra, 573. An essential element of a liberty interest claim is an allegation by the complainant that "the employer create[d] and disseminatefd] a false and defamatory impression about the employee in connection with his termination . . . Codd v. Velger, 429 U.S. 624, 628, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977). This element is necessary because "the remedy mandated by the Due Process Clause of the Fourteenth Amendment is an opportunity to refute the charge. . . . The purpose of such notice and hearing is to provide the person an opportunity to clear his name. . . . [I]f the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation." (Citations omitted; internal quotation marks omitted.) Id., 627. The absence, therefore, of any allegation of a falsehood propagated by the employer is fatal to an employee's liberty interest claim. Id.; see also Statewide Grievance Committee v. Presnick, 215 Conn. 162, 170, 575 A.2d 210 (1990). In this case, Geren's complaint is devoid of any allegation that the defendants generated a false and defamatory impression about him in connection with his suspension or resignation. In his complaint, Geren states that "he will be subject to embarrassment, humiliation and public disgrace," but fails to make any claim that such disgrace is a result of any action by the defendants. He fails to assert a causal connection between the defendants' actions in the suspension process and the damage to his reputation. As a result, he did not properly plead a liberty interest claim under the due process clause of the fourteenth amendment. The trial court's decision not to submit Geren's insufficient liberty interest claim to the jury was legally and logically correct. IV Geren's fourth claim is that the trial court improperly conferred with the clerk and stenographer outside of the presence of the jury, litigants, and counsel for the purpose of reviewing what testimony would be read back in response to a jury request. Geren claims that this private conference deprived him of his right to a public trial by an impartial jury as guaranteed by article first, § 8, of the Connecticut constitution. We disagree. On May 1, 1992, during its deliberations, the jury requested to rehear certain testimony. After a lunch recess, the trial court met with the clerk and stenographer in the locked courtroom, off the record, to review which testimony would be read back to the jury in response to its request. After reviewing the stenographer's notes, the judge opened the courtroom to the litigants and jury and continued the proceedings. A threshold question is whether Geren is correct in his assertion that his claim is of constitutional magnitude. He relies on Ostolaza v. Warden, 26 Conn. App. 758, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992), to support his contention that the trial court's private conference deprived him of a constitutional right to a public trial. In that case, in a discussion regarding whether the trial court was justified in closing the courtroom during a certain witness' testimony, the reviewing court reiterated that a compelling need must exist to exclude the public and press from a criminal trial. Id., 770-71. Ostolaza and the constitutional right to a public trial concern the authority of the trial court to close the courtroom during trial proceedings. In the case at hand, the trial court did not close any trial proceeding. Rather, the judge excluded everyone from an administrative conference with his staff. Geren "has placed a constitutional tag on a nonconstitutional issue. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991) . . . ." (Citations omitted.) State v. Harvey, 27 Conn. App. 171, 183, 605 A.2d 563 (1992). " 'What portions of the record, if any, will be submitted to the jury for their consideration is a matter of sound judicial discretion.' " State v. Harris, 227 Conn. 751, 770-71, 631 A.2d 309 (1993); State v. Smith, 35 Conn. App. 51, 67, 644 A.2d 923 (1994). Geren asserts that counsel should have been given an opportunity to participate in the decision concerning what testimony would be read back to the jury so that no relevant portions were omitted. That decision, however, rests within the discretion of the trial court, not the parties or their counsel. Geren cites no authority, and we find none, for the proposition that the trial court may not confer in private with its staff on administrative matters. For these reasons, we find no abuse of discretion in the trial court's decision to confer in private with the stenographer and clerk for the purpose of reviewing which portions of testimony would be resubmitted to the jury. V Geren next claims that the trial court improperly denied his motion for a directed verdict. He argues that, because the exclusive forum for the decision regarding whether his resignation was voluntary was an administrative hearing pursuant to General Statutes § 10-151, it was improper for the issue to be submitted to the jury. Consequently, Geren contends that the trial court should have granted a directed verdict on the first count of his complaint and ordered an administrative hearing to be held. We are unpersuaded. In denying Geren's motion for a directed verdict, the trial court arrived at the legal conclusion that a hearing pursuant to § 10-151 is not the proper forum for the determination of whether a resignation was voluntary. We must therefore determine whether this conclusion was "legally and logically correct and whether [it] find[s] support in the facts set out in the memorandum of decision. . . ." Pandolphe's Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221. "Section 10-151 protects a tenured teacher from termination of employment except for cause or elimination of the teaching position. Cahill v. Board of Education, 198 Conn. 229, 240, 502 A.2d 410 (1985). We recognize that not all separations from employment as a teacher are encompassed by the statute. Since, by its terms, the statute contemplates termination initiated by the board of education, a teacher's retirement or voluntary resignation would not trigger the act's protections." Kolenberg v. Board of Education, 206 Conn. 113, 120, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988). Among the protections afforded by the act is the right to a hearing before an impartial hearing officer or panel. The role of the hearing officer or panel is to make factual findings from which to determine whether adequate grounds existed for the teacher's discharge. Tomlinson v. Board of Education, 226 Conn. 704, 727, 629 A.2d 333 (1993). The hearing provides a tenured teacher due process upon contract termination. The initiation of a hearing presupposes the resolution of the question of the voluntariness of an employee's separation from employment; that is, it presupposes that the separation was employer initiated. Otherwise, the remedy afforded by the hearing, i.e., a determination of whether adequate grounds existed for a discharge, would be meaningless, as there would be no discharge to evaluate. The determination of voluntariness, then, is logically prior to and, thus, outside the scope of a hearing pursuant to § 10-151. Geren's claim that such a hearing was the proper and exclusive forum for the determination of the voluntariness of his resignation is without merit. We conclude that the trial court properly denied Geren's motion for a directed verdict. VI The final claim made by Geren is that the trial court improperly excluded from evidence relevant written board policies and employee rules. Geren asserts that he pleaded a breach of contract cause of action in count two of his complaint. He claims, therefore, that he was entitled to introduce the policies and rules in order to prove the terms of his contract and a breach thereof. "Our rules of practice place the burden of proving error squarely on the appellant." State v. Ong, 30 Conn. App. 45, 51, 618 A.2d 583, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993). The appellant must also prove that any error established was harmful. State v. Williams, supra, 231 Conn. 250. In his brief, Geren asserts that the written board policies that he attempted to introduce are probative of a breach of contract by the defendants. His brief, however, "fails to comply with Practice Book § 4065, which requires the appellant to support the statement of facts with appropriate references to the record or transcript, and does not permit reliance on any fact that is not set forth in a statement of facts or appropriately incorporated into the brief." State v. Ong, supra, 51-52. Geren's failure to set out the salient facts in the manner required by Practice Book § 4065 leaves us unaware of the policies he offered into evidence, the content of those policies, and their relevance to his claim. The absence of such evidence, adequately supported by reference to the transcript, prevents us from determining whether the trial court acted properly in excluding the evidence. It is not our role "to guess at possibilities, but to review claims based on a complete factual record developed by a trial court." (Internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). Consequently, we deny review of this claim. See Taylor v. American Thread Co., 200 Conn. 108, 509 A.2d 512 (1986); State v. Ong, supra, 30 Conn. App. 52. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 10-151 provides in pertinent part: "(d) The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees' representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. . . . Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. . . . Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension, (A) before the board of education or a subcommittee of the board, (B) if indicated in such request or if designated by the board before an impartial hearing panel or, (C) if the parties mutually agree, before a single impartial hearing officer chosen by both parties. . . . Within ninety days after receipt of the request for a hearing, the impartial hearing panel, subcommittee of the board or hearing officer, unless the parties mutually agree to an extension, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel, subcommittee or hearing officer. . . . The hearing shall be public if the teacher so requests or the board, panel or sub committee so designates. The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private. . . . Nothing herein contained shall deprive a board of education of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section." The trial court filed this memorandum of decision in response to three postverdict motions filed by Geren, in which he moved to set aside the verdict, for judgment non obstante veredicto, and for a directed verdict. In those motions, Geren made the same claim that he now asserts on appeal, namely, that the trial court improperly failed to charge the jury on his liberty interest claim. Moreover, Geren never denied the reasons for his suspension; that is, he never denied that he sent the notes to the student. What he seeks in the way of due process, then, is an opportunity to explain or justify his conduct, not to refute the charges against him. In the public employment context, however, the due process clause affords a hearing "to provide the [employee] an opportunity to clear his name. If he does not challenge the substantial truth of the material in question; no hearing would afford a promise of achieving that result for him." Codd v. Velger, supra, 429 U.S. 627. Geren also relies on Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992), asserting that the case stands for the proposition that "hyper-technical pleading requirements will not defeat a constitutional claim, absent surprise to the defendant." Geren's analysis of this cáse, however, is inaccurate. In Tedesco, the defendant appealed from a judgment for the plaintiff, claiming that the trial court improperly concluded that the plaintiffs complaint stated a cause of action. Despite the fact that the complaint was in fact missing a necessary allegation, the cause of action was contested on its merits and a judgment was rendered thereon. On appeal, the plaintiff asserted that the defendant had not objected at trial to the introduction of evidence at variance with the cause of action, and was not prejudiced or misled by the admission of such evidence. The Supreme Court held that the absence of a requisite allegation in a complaint that results in the failure to state a cause of action "is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice [to the defendant]." Id., 457. Although parties are bound by their pleadings, "if [they] will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect." (Citation omitted; internal quotation marks omitted.) Id. The court further noted that "[i]f the defendant had timely objected to the evidence introduced at trial [that varied from the pleadings], the plaintiff might have been permitted to amend his complaint and any prejudice could have been cured by a request for a continuance. 'Where a case has been litigated wholly upon the merits a party is not permitted after judgment to take advantage of defects in procedure which, had attention been called to them at the trial, could readily have been amended.' " Id., 462. It is important to note that in Tedesco, it was the defendant challenging the sufficiency of the plaintiff's cause of action after judgment without ever having challenged the variance between pleadings and proof at trial. Here, Geren failed to plead a liberty interest cause of action. When he attempted to offer evidence supporting such a claim, the defendants successfully objected to the introduction of such proof. Geren never requested permission to amend his complaint, nor did he opt to begin his case anew. No judgment was rendered on a liberty interest cause of action. Geren cannot now rely on Tedesco to "cure [his] pleading defects." We conclude that Tedeseo is inapposite to the circumstances of this case. Article first, § 8, of the Connecticut constitution provides in pertinent part: "In all criminal prosecutions, the accused shall have a right to . . . [a] public trial by an impartial jury. . . ." Geren also asserts that the trial court's actions deprived him of "effective assistance of counsel." This claim, however, is unsupported by analysis or legal authority. As noted above, bare assertions of error, devoid of analysis, are insufficient to warrant appellant review. Gaudio v. Gaudio, supra, 23 Conn. App. 311; State v. Franklin, supra, 20 Conn. App. 99. We therefore deem this claim to be abandoned. See footnote 1. In reaching its verdict, the jury answered fourteen interrogatories. In its answer, the jury specifically found that Geren's resignation was not coerced by the threat of criminal prosecution or public humiliation, and that he submitted his resignation voluntarily.

Per Curiam. In this appeal from the denial of an application for a writ of habeas corpus, the petitioner, Raymond Ranciato, challenges his impending extradition to California pursuant to General Statutes § 54-159. The gist of his four claims is that the trial court improperly determined that sufficient facts existed to justify its findings that the extradition documents charging the defendant with a crime stated probable cause and that the documents were authentic. "We first consider our scope of review. Tn a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Veal v. Warden, 28 Conn. App. 425, 428, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992); Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). [W]e are called upon to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion.' (Citation omitted; internal quotation marks omitted.) Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993)." McKnight v. Commissioner of Correction, 35 Conn. App. 762, 765, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994). After reading the whole record, we cannot say that the facts set out in the trial court's memorandum of decision are clearly erroneous. The judgment is affirmed. General Statutes § 54-159 provides in pertinent part: "No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit . . . or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon . The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, [or] affidavit . . . must be authenticated by the executive authority making the demand."

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

The defendant's petition for certification for appeal from the Appellate Court, 34 Conn. App. 933 (AC 12672), is dismissed.

The defendant's petition for certification for appeal from the Appellate Court, 36 Conn. App. 135 (AC 13680), is denied.

The petition of the defendant Doctor's Associates, Inc., for certification for appeal from the Appellate Court, 35 Conn. App. 353 (AC 12736), is denied.

The petitioner Armond Rouillard's petition for certification for appeal from the Appellate Court, 35 Conn. App. 754 (AC 12205), is denied.

The petition of the substitute plaintiff Martin W. Hoffman, trustee, for certification for appeal from the Appellate Court, 35 Conn. App. 9 (AC 12078), is denied. Decided September 14, 1994 William H. Champlin III and Glory Martyn Lena, in support of the petition. Lawrence G. Widem, assistant attorney general, in opposition.

Shea, J. The defendant has appealed from a judgment upon a verdict for the plaintiff adminis-tratrix awarding damages for the death of Jose Dias, which occurred after he was struck by the shovel of a backhoe being operated by the defendant, Joseph Adams. Both the decedent and the defendant were employed by the same construction company. In a special defense the defendant pleaded the applicability of General Statutes § 31-293a, which generally bars suits against fellow employees where workers' compensation is available to the injured employee. In her reply the plaintiff admitted that the accident was covered by the Workers' Compensation Act and that the defendant was a co-employee of the decedent. She claimed that her action could be maintained, nevertheless, under the exception in § 31-293a which permits a suit against a fellow employee "for negligence in the operation of a motor vehicle as defined in section 14-1." The trial court, in denying the motion of the defendant to set aside the verdict, held that the plaintiff's suit fell within this exception. This determination is the subject of the present appeal, in which the sole issue raised by the defendant is whether at the time of the accident he was operating a motor vehicle as contemplated by § 31-293a. We conclude that he was not so engaged and find error. The facts relevant to the question before us are not disputed. On December 18, 1975, the plaintiff's decedent, Jose Dias, and the defendant, Joseph Adams, were employed by D. German Construction Company, Inc., and were installing sewer pipes on Wigwam Lane, a public highway in Stratford. Adams was operating an Ackerman backhoe while Dias was in a trench wrapping a chain around the bars of a steel box which the backhoe was to remove from the trench. Suddenly the shovel on the backhoe, to which one end of the chain was attached, dropped and struck Dias, who was severely injured and died as a result. The backhoe was a self-propelled machine which used a diesel engine as its energy source both for locomotion and for movement of the boom to which the shovel or "bucket" was attached. It moved, not on rubber-tired wheels, but on two continuous metal treaded belts. The controls were situated in the cab of the backhoe, and the same levers which controlled its locomotion could also be used to operate the shovel once the operator manipulated a certain valve to transfer the power of the engine from the treads to the boom. The shovel could not be operated while the backhoe was in motion. At the time of the accident the operator had moved the valve into the proper position for operation of the shovel. The defendant relies upon two grounds for support of his claim that the exception "for negligence in the operation of a motor vehicle" is inapplicable: (1) that the backhoe was not a "motor vehicle" as delineated in General Statutes § 14-1 (26), to which § 31-293a refers for definition of that term; and (2) that he was not engaged in operating the backhoe as a motor vehicle when the accident occurred. As we agree with the second contention, we shall not discuss the first. In Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943 (1980), the situation was quite similar to the present case. There the plaintiff was injured when a hydraulic hoist attached to a flatbed truck was unloading some concrete blocks. The plaintiff had driven the truck to the delivery site and had operated the hoist, which used the truck engine as its power source, until it became stuck in an upright position. The movement of the hoist was controlled either by switches from the truck bed or by hand held switches attached to a twenty-foot cable. After the plaintiff had telephoned his employer, the defendant, a fellow employee, who was a mechanic, came to the scene. The defendant decided that the truck and hoist should be returned to the employer's plant for repairs. He instructed the plaintiff, who was standing beside the truck holding the hand control device, to move the hoist. The plaintiff pressed a switch which caused the hoist to move and strike some high voltage wires. The accident resulted. We held in Davey that the hoist attached to the truck and being controlled at the time of the accident by remote controls on the ground was not a "motor vehicle" as defined by General Statutes §14-1 (26). Id., 472-73. We also indicated, moreover, "that operation as it refers to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle." Id., 472 n.1; see General Statutes § 14-1 (32); State v. Swift, 125 Conn. 399, 404, 6 A.2d 359 (1939). In the ease before us it is clear that, when the mishap took place, the defendant was doing nothing related to driving or moving the vehicle itself, which had been immobilized by switching the power from the treads to the boom. He was engaged only in operating the shovel. His negligence, which the jury found to have caused the accident, did not occur, therefore, in the operation of a motor vehicle, as § 31-293a requires for the exception allowing such a suit against a fellow employee. The plaintiff relies upon differences between the backhoe and the vehicle described in Davey to escape the effect of that precedent, particularly the fact that the controls which operated the shovel on the backhoe were an integral part of it, unlike those for the hoist in Davey which were not situated in the cab of the truck. We did say in Davey that "[t]here is nothing to suggest that the use of any mechanical or electrical device not an integral part of the motor vehicle being driven can be considered operation of a motor vehicle." Id., 472 n.l. It does not follow, however, that the nse of controls which have a dual purpose constitutes operation of a motor vehicle at a time when those controls cannot function to propel the backhoe, but are being used for a different purpose. The differences between the backhoe and the truck hoist in Davey may be significant in respect to whether the statutory definition of a "motor vehicle" has been met, a question we leave unresolved. It is plain, nevertheless, that at the time of the accident each of these machines was performing a function unrelated to movement of the vehicle itself. Although the legislative history of § 31-293a is not especially revealing, there is some evidence that the intention was to distinguish "simple negligence on the job" from negligence in the operation of a motor vehicle. Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by § 31-293a to accidents having a less distinct relationship to the hazards of the employment. At the same time it has accorded the injured employee, in addition to workers' compensation, the same remedy he would have against a member of the general public who caused a motor vehicle accident. Our decision to construe the term "operation of a motor vehicle" in § 31-293a as not including activities unrelated to movement of the vehicle comports with this policy of the legislature. There is error, the judgment is vacated and the case is remanded with direction to render a judgment for the defendant. In this opinion the other judges concurred. "[General Statutes] Sec. 31-293a. no eight against fellow employee; exception. If an employee or, in ease of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee except for negligence in the operation of a motor vehicle as defined in section 14-1 or unless such wrong was wilful or malicious. No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the commissioner of motor vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1, 1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident with a fellow employee shall be null and void." General Statutes §14-1 (26) provides as follows: "(26) 'Motor vehicle' means any vehiele whieh is propelled or drawn by any power other than museular, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf eourse to another, agricultural tractors, farm implements, such vehicles as run only upon rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, bicycles with helper motors as defined in section 14-286 and any other vehiele not suitable for operation on a highway." 12 H. E. Proc., Pt. 9, 1967 Sess., pp. 3833, 4035, remarks of Eepresentative Paul Pawlak: "Section 5. This section stops third party suits against fellow employees since such employee usually is unable to meet any judgment involving serious injuries. However, the section specifically permits suits against fellow employees where the injury or death was the result of wilful or malicious wrong by such fellow employee or involves the operation of a motor vehicle. We are here trying to make sure that a fellow employee cannot ordinarily be sued for simple negligence on the job, but we do not believe that he should be protected against wilful or malicious wrong, nor do we believe he should bo protected if the employee is injured as a result of a motor vehicle accident."

Cotter, C. J. The issue presented in this appeal is whether a communications tower owned by the plaintiff and located in the defendant town is subject to municipal taxation under § 12-64 of the General Statutes. The plaintiff appealed to the Superior Court from the action of the assessor of the town in listing the plaintiff's tower as taxable property on the assessment lists for the years 1975 to 1978 inclusive. Following a trial to the court, judgment was rendered in favor of the defendant from which the plaintiff has appealed. The plaintiff, Eastern Connecticut Cable Television, Inc., is a community television antenna company. See General Statutes § 16-330. In 1974, the plaintiff erected a tower on its land located in the town of Montville which supports eighteen or nineteen television antennas which receive television broadcasts from various directions, and three microwave antennas which are used for transmitting. The tower is 385 feet high and is constructed of twenty tubular steel sections which are bolted together. The tower rests on a foundation of concrete measuring three feet by three feet and embedded six feet into the ground, and the bolt securing the tower to the foundation is embedded a foot or more into the concrete block. In addition, there are three sets of guy wires used to support the tower which are fastened to turnbuckles which in turn are fastened to metal bolts embedded in three additional blocks of concrete. There is a small building located next to the tower and cables from each of the antennas are connected to receivers located inside the building. The plaintiff does not contest the taxation of its land and the building next to the tower or the valuation attributed to its property. Even assuming arguendo that the tower is so permanently affixed to the realty so as to have lost its character as personalty, it does not necessarily follow that the tower is subject to taxation under § 12-64. As the court noted in Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 217, 332 A.2d 83, "[t]he provision in § 12-64 which requires the assessors to set '[a]ny interest in real estate' in the list of the record owner of such interest has thus been definitively interpreted to mean no more than that the assessor must list any taxable interest, previously defined as M"d] welling houses, garages, barns, sheds, . . . build ings,... house lots,' in the name of the record owner of the freehold." Recognizing that the taxing authority of a municipality must conform strictly to the terms by which it was conferred; Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88; Low Stamford Corporation v. Stamford, 164 Conn. 178, 182, 319 A.2d 369; Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 36, 238 A.2d 410; the town admits that the word "tower" is not specifically set out in General Statutes § 12-64 but contends that it is taxable impliedly either as a "building" or as "machinery" as those terms are utilized in the statute. See Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 126 A. 1. A statutory term should be accorded its ordinary meaning "according to the commonly approved usage of the language." General Statutes § 1-1 (a); Doe v. Institute of Living, Inc., 175 Conn. 49, 57, 392 A.2d 491; International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236; and there is nothing in the statute to indicate that the word "building" is not to be taken in its ordinary and popular sense. Katsoff v. Lucertini, 141 Conn. 74, 78, 103 A.2d 812. The term "building" is defined in Webster's Third New International Dictionary (unabridged) as a "constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy." See, e.g., Parsons v. Van Wyck, 56 App. Div. 329, 336, 67 N.Y.S. 1054 (the term building does not include a monument 100 feet in height on a platform 120 feet long and erected in a city park); Small v. Parkway Auto Supplies, Inc., 258 Mass. 30, 34, 154 N.E. 521 (gasoline pump, underground tank and concrete pit were held not to be a building within the meaning of a restrictive covenant). It is significant to note that §12-64 itself recognizes a distinction between "buildings" and "structures" in those provisions concerning the allocation of, and liability for taxes on "structures, buildings or other improvements" as between a lessor and lessee. In addition, this court has recognized that while a building is always a structure, all structures are not buildings. Katsoff v. Lucertini, supra; Hendryx Co. v. New Haven, 104 Conn. 632 640, 134 A. 77. In Katsoff, for example, it was held that a provision contained in a restrictive covenant prohibiting the construction of a building higher than one story did not prohibit the construction of a billboard atop an existing one story building since the billboard, although concededly a structure, was not a building as that term was used in the covenant. In determining the meaning of the term "building" as utilized in § 12-64, we are mindful of the rule of ejusdem generis which explains that "where a particular enumeration is followed by general descriptive words, the latter will be understood as limited in their scope to . . . things of the same general kind or character as those specified in the particular enumeration." Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561; Hartford Electric Light Co. v. Wethersfield, supra, 218. Accordingly, the general term "all other buildings" must be construed in light of the immediately preceding enumeration of buildings which includes dwelling houses, garages, barns, sheds, stores, shops, mills, ice houses, warehouses, and silos. The plaintiff's tower possesses none of the characteristics of those buildings listed in the statute. It is not enclosed and is unsuitable for occupancy or storage which are the distinguishing features of the listed buildings. In determining the meaning of the word "building," recourse must be had to peculiar facts and circumstances of each particular case and provisions of the statute. We have held, for example, that an open air theatre was not a building within the meaning of a building code which was adopted to meet conditions prevailing in a permanent structure of walls, roof and floor. Middlesex Theatre, Inc. v. Hickey, 128 Conn. 20, 23-24, 20 A.2d 412. In light of the rule that ambiguities in taxing statutes are to be construed in favor of the taxpayer; Pepin v. Danbury, supra; Hartford Electric Light Co. v. Wethersfield, supra; we conclude that the plaintiff's tower, albeit a structure, cannot appropriately be classified as a building within the meaning of § 12-64. The town's contention that the tower is taxable as machinery is similarly unavailing. The tower is used simply as a support for the various antennas which receive and transmit broadcasting signals. The tower itself neither transmits nor changes the application of energy. As such, we cannot torture the statute by imposing upon it the construction urged by the town. There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff. In this opinion the other judges concurred. In view of the conclusion reached on this issue, we need not consider the plaintiff's second argument that the tower is tangible personal property and therefore exempt from municipal taxation under § 12-268j of the General Statutes. The record does not indicate whether the antennas mounted upon the tower were placed on the assessment list and if so whether the plaintiff challenges that assessment. Accordingly, we express no opinion regarding the taxation of those antennas. In Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 394, 126 A. 1, the court held that towers owned by the plaintiff water company but situated on land not owned by it and upon which transmission lines were carried were not real property. We need not resolve whether the fact that the plaintiff in the present case owns the fee upon which the tower is located is sufficient to render that tower so attached to the realty so as to become a part thereof. Section 12-64 of the General Statutes provides in pertinent part: "All the following-mentioned property, not exempted, shall be set in the list of the town where it is situated and, except as otherwise provided by law, shall be liable to taxation at a uniform percentage of its present true and actual valuation, not exceeding one hundred per cent of such valuation, to be determined by the assessors: Dwelling houses, garages, barns, sheds, stores, shops, mills, buildings used for business, commercial, financial, manufacturing, mercantile and trading purposes, ice houses, warehouses, silos, all other buildings, house lots, all other building lots, agricultural lands, shellfish lands, all other lands, quarries, mines, ore beds, fisheries, property in fish pounds, machinery and easements to use air space whether or not contiguous to the surface of the ground." See also Byers v. Board of Supervisors, 262 Cal. App. 2d 148, 156, 68 Cal. Rptr. 549 (television translator station was not building within the purview of statute authorizing county to construct buildings) ; Pichette v. Manistique Public Schools, 50 Mich. App. 770, 774, 213 N.W.2d 784 (slide anchored by concrete on school playground was not building within statutory exemption from doctrine of governmental immunity).

Per Curiam. On January 9, 1952, the plaintiff Timms was convicted of two criminal charges and was sentenced to a term of two to five years. On November 14, 1961, he was convicted of three criminal charges and was sentenced to a term of four to twelve years. The bench warrant used in connection with the 1961 charges was not supported by oath or affirmation as required by the fourth amendment to the United States constitution. This court subsequently held, in State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), that a bench warrant issued without support by oath or affirmation was fatally defective. In Reed v. Reincke, 155 Conn. 591, 236 A.2d 909 (1967), this court refused to apply Licari retroactively where no claim of an unfair trial was made. In 1967, the plaintiff was convicted on a guilty plea of a criminal charge. On the basis of the 1952, 1961 and 1967 convictions the plaintiff was sentenced as a third offender under § 54-121 of the General Statutes (Rev. to 1958) to a term of four to thirty years. In 1969, the Superior Court in Timms v. Warden, Superior Court, Hartford County, No. 158141, rejected the plaintiff's claim that the 1961 conviction could not be used as the basis for the third offender conviction, and in 1970 the United States District Court in Timms v. Adams, Civil No. 13971, D. Conn., also rejected the same claim. On March 23, 1977, the plaintiff filed an amended petition for habeas corpus in the Superior Court in which, he claimed that his third offender conviction should be vacated because "[t]he use of the conviction of November 14, 1961 to support the third offender conviction was illegal in that the bench warrant used was issued without oath or affirmation." The defendant moved to dismiss the petition on the ground that the 1961 conviction not only was valid but had previously been so adjudicated. We conclude that the court properly dismissed the petition on the basis of its conclusion that the identical issue had already been adjudicated in 1969 and 1970. There is no error. General Statutes § 54-121 (Rev. to 1958) was repealed by Publie Acts 1969, No. 828 § 214, effective October 1, 1971. The sentencing of persistent offenders is now covered by § 53a-40 of the General Statutes (Rev. to 1979).

The plaintiff's petition for certification for appeal from the Superior Court in the judicial district of Hartford-New Britain at Hartford is denied by the court.

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

The petition of New Haven Bird Club, Inc., for certification for appeal from the Superior Court in the judicial district of Ansonia-Milford is denied by the court.

Daly, J. The defendant appeals from the judgment of conviction, after a jury trial, of the crime of illegal sale of narcotics in violation of General Statutes § 21a-277 (a). He claims that the trial court erred (1) by denying his motion for judgment of acquittal based on insufficiency of the evidence to support his conviction, (2) by admitting into evidence a brown paper bag and its contents and over $1000 in currency, and (3) by denying his motion for a new trial based upon improper prosecutorial argument to the jury. We find no error. The jury could reasonably have found the following facts. On August 23,1985, the defendant was observed by an undercover police detective walking along North Main Street near Elizabeth Street in Waterbury. The detective saw an unidentified black male hand money to the defendant, who then walked across North Main Street to a driveway leading to a factory. There was a small brown paper bag located in the driveway. The defendant picked up the brown paper bag, removed something from it, then placed the bag back in the driveway and retraced his steps across North Main Street to the black male. The defendant handed something to the black male, who then held up two small glassine bags and rubbed them together before walking away. The detective radioed for assistance and then retrieved the brown paper bag which contained ten glassine bags, which were later field tested and found to contain heroin. The defendant went into a nearby luncheonette when he saw a police cruiser approaching down North Main Street. There, he was observed by a police officer placing a large wad of money into the pocketbook of a young black woman who was seated in the restaurant. The defendant was promptly arrested and a search of the woman's pocketbook revealed $1233 in crumpled bills in denominations of ones, fives and twenties. The brown paper bag, the ten glassine bags and the cash were admitted into evidence. There was expert testimony that the ten glassine bags contained heroin. The defendant's first claim is that there was insufficient evidence for the conviction since the two glassine bags which he allegedly handed to the unidentified male were not recovered, nor was there evidence as to the contents of those two bags. We disagree. The standard that applies when a jury verdict is challenged for insufficiency of the evidence is firmly entrenched in Connecticut law. We first view all of the evidence in the light most favorable to sustaining the verdict. We then ask whether the jury could reasonably have concluded, upon the facts established and inferences reasonably drawn therefrom, that the defendant was guilty beyond a reasonable doubt. State v. Tucker, 9 Conn. App. 161, 163, 517 A.2d 640 (1986). Every element of the crime charged must be so proved, and while the jury is entitled to draw reasonable, logical inferences from the facts proved, they may not speculate or guess at conclusions. "It is the cumulative impact of a multitude of facts, and not any one fact, which establishes guilt in a case involving substantial circumstantial evidence." State v. Gaynor, 182 Conn. 501, 503-504, 438 A.2d 749 (1980). This is such a case. In order to convict the defendant in this case, it was essential that the state prove that the accused sold a narcotic drug, namely, heroin. State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 (1974). In this case, because the two glassine bags sold by the defendant were never recovered, there was no direct evidence that those bags contained heroin. Thus, the state had to rely on circumstantial evidence to prove that the defendant sold a narcotic drug. So far as probative force is concerned, there is no distinction between direct and circumstantial evidence; State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); and all the evidence must be given a construction most favorable to sustaining the jury's verdict. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). On the basis of the verdict in this case, it is clear that the jury inferred that the two glassine bags handed to the unidentified man by the defendant in exchange for money contained a narcotic since they came from the same small brown paper bag which contained ten additional glassine bags which were proved to contain heroin. The question before us then, is whether this inference is so unreasonable that the verdict cannot be supported. While such an inference was not necessary, it certainly was permissible. See State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985) ("in viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence"). We conclude that the jury's inference was not unreasonable. Applying the proper standard to all the facts established at trial, and the inferences drawn therefrom, we conclude that the evidence in this case was sufficient to support the jury's verdict. In his second claim, the defendant argues that the trial court erred in admitting the small brown paper bag, the ten glassine bags, and the currency into evidence. He asserts that these items were irrelevant and prejudicial. We disagree. No exact test of relevancy can be found in the law. Thus, questions of relevance must be determined in each case according to the teachings of reason and judicial experience. State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); State v. Corbett, 12 Conn. App. 217, 220, 530 A.2d 208 (1987). "Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more prob able. 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. . . . The Federal Rules of Evidence (§ 401) broadly define relevant evidence as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " (Citations omitted.) State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). Here, the items admitted into evidence corroborated the testimony of the police officers as to what they observed. Further, they aided the jury in its determination of whether a sale had transpired, and whether the goods sold were narcotics. A trial court has broad discretion in its rulings on the relevance of evidence and in its determination of whether the probative value of evidence outweighs its prejudicial effect. Reversal is required only when there is an abuse of discretion or when an injustice has been done. State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977). The probative value of the evidence objected to outweighed its prejudicial effect. We find no abuse of discretion or injustice in this case. The defendant's final claim is that the trial court erred in denying his motion for a mistrial which was based on the state's closing argument. He claims that the argument was an improper indirect comment on his failure to testify. We disagree. The prosecutor's challenged statement was: "Ladies and Gentlemen, if he wasn't standing there on the corner selling drugs, what was he doing?" The defendant's counsel promptly objected to the statement and the trial court immediately ordered it stricken from the record and clearly instructed the jury to "[disregard that tes timony." During its charge to the jury, the court stated: "Under the Fifth Amendment, ladies and gentlemen, a person cannot be compelled to testify in any criminal case wherein he is the accused. He may testify if he wishes to do so, but cannot, as I said, be compelled. "These Fifth Amendment rights are granted by our constitution. And, the Court is required by the legislature to instruct you that you may draw no unfavorable inference from the decision of the defendant not to testify. "I will direct you that the defendant's decision not to testify cannot be held against him. Such decision does not create any unfavorable inferences against him. It is not evidence of guilt nor is it a substitute for evidence of guilt. "You are further directed by this Court not to discuss or consider his silence in any way or for any purpose in your deliberations." The jury rendered a guilty verdict, and the defendant then moved for a mistrial based on the comment by the state's attorney. The question to be answered on a motion for mistrial is whether there was "substantial and irreparable prejudice to the defendant's case." Practice Book § 887. A mistrial is warranted only where the court concludes that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. Such a motion invokes the court's wide discretion. State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987). Here, there was an immediate objection and instruction by the court that the jury was to disregard the comment. In addition, during the general charge, the jury was clearly instructed not to draw any adverse inference from the defendant's decision not to testify. Such instructions are entitled to great weight; State v. Jenkins, 8 Conn. App. 35, 44, 510 A.2d 1370 (1986); and in the absence of a fair indication to the contrary, we must presume that the jury followed those instructions. State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984). There is no error. In this opinion the other judges concurred. General Statutes § 21a-277 (a) provides in pertinent part: "Any person who . . . sells . to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance . for a first offense, shall be imprisoned . . . ."

Hull, J. This is an appeal from a decision denying a petition for a writ of habeas corpus in which the petitioner, Paul G. Iasiello, challenged the voluntariness of his guilty pleas to the crimes of kidnapping in the second degree in violation of General Statutes § 53a-94, robbery in the first degree in violation of General Stat utes § 53a-134, and possession of weapons in a motor vehicle in violation of General Statutes § 29-38. The petitioner was arrested on August 13,1976, and charged with kidnapping in the first degree, sexual assault in the first degree, robbery in the first degree and possession of weapons in a motor vehicle. On January 31,1977, the petitioner pleaded guilty to the reduced charges. The trial court, J. Shea, J., canvassed the petitioner's pleas, found them to be entered voluntarily and intelligently, and entered a finding of guilty to each charge. On February 17,1977, the trial court sentenced the petitioner to the agreed recommended sentence of fifteen to thirty years imprisonment. The petitioner did not file a direct appeal. He filed two habeas corpus petitions, dated October 30, 1977, and December 6, 1979, prior to the petition which is the subject of this appeal. The former was filed in the judicial district of Hartford-New Britain at Hartford. The latter was filed in the United States district court. The state writ claimed in relevant part that the "[petitioner's] confinement is illegal in that at the time of the entry of his plea[s] of guilty, the petitioner was under the influence of his medication and did not make a knowing and voluntary plea as required by Article First, section Eight of the Connecticut Constitution, and the Fifth and Fourteenth Amendments [to] the United States Constitution." The federal writ claimed in relevant part that the petitioner's pleas "were made while he was under the influence of drugs which made him incompetent to enter a plea of guilty. Thus, the petitioner argues that his guilty pleas were involuntary and the resulting convictions were in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution." The state habeas court, Wright, J., denied the petition on October 14,1980, holding that the drugs given to the petitioner did not render his pleas involuntary, and that "the petitioner intelligently pleaded guilty on January 31, 1977." The federal magistrate issued a recommended decision denying the second petition on June 8,1982. The decision held that the "state court decision is fairly supported by the record," and that the petitioner had not met his burden "to establish by a preponderance of the evidence that his guilty plea[s] [were] not voluntarily and intelligently made." On September 24, 1982, the federal district court approved the recommended decision and denied the petition. The petitioner did not appeal either of the decisions on the prior petitions. On November 2,1982, the petitioner filed the present petition for a writ of habeas corpus, claiming that "his imprisonment is illegal in that his plea of guilty to the charge for which he is confined was rendered in violation of the Fifth, Sixth and Fourteenth Amendments to the constitution of the United States, Article 1, Sections 8 and 20, of the constitution of the State of Connecticut, and the Rules of Practice of the State of Connecticut." The petitioner asserts that he was unaware of the "nature of the charges against him"; that the court failed to inform him of the elements of the crimes to which he pleaded guilty. The respondent denied the allegations of the petition and alleged that the filing of the habeas petition was an abuse of the writ because the petitioner had challenged his guilty pleas on two prior occasions and because the petition was filed almost six years after the guilty pleas. On November 25,1985, an evidentiary hearing on the petition was held. On March 25,1986, the court denied the petition, stating that "the filing of this petition almost six years after the guilty pleas, coupled with failure to raise this claim in previous petitions constitutes an abuse of habeas corpus." The court also rejected the petitioner's claim that his pleas had been entered involuntarily. The petitioner subsequently obtained certification and appealed to this court on June 6, 1986, claiming (1) that the filing of the petition does not constitute an abuse of the writ, (2) that a retrial would not prejudice the state, and (3) that the petitioner's imprisonment is illegal as his pleas of guilty violated his due process rights. We find no error. The petitioner's first claim is that his petition should not have been denied as an abuse of the writ. Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. "Theirs is the major responsibility for the just and sound administration of . . . collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits." Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). The petitioner bears a heavy burden on appeal to show that the trial court abused its broad discretion. State v. Marra, 195 Conn. 421, 437-48, 489 A.2d 350 (1985). Further, on appeal of a habeas corpus proceeding, the petitioner must show a miscarriage of justice beyond a mere error that might have entitled him to relief on direct appeal. D'Amico v. Manson, 193 Conn. 144, 154-57, 476 A.2d 543 (1984). Practice Book § 531 provides: "if the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If the previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing." "It is . . . clear that in this context, 'ground' must mean a 'sufficient legal basis for granting the relief sought.' Sanders v. United States, [supra, 16]." Negron v. Warden, 180 Conn. 153, 158, 429 A.2d 841 (1980). An applicant must, in other words, show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground. Williams v. United States, 731 F.2d 138, 141 (2d Cir. 1984). In the present case, both prior petitions and the present petition alleged, as a legal ground, that the petitioner's guilty pleas were involuntary. Only the factual bases of the petitions changed. In Sanders v. United States, supra, the United States Supreme Court addressed a situation analogous to the present one. It stated that "the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different 'ground' than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations." Id.; see also Straight v. Wainwright, 476 U.S. 1132, 106 S. Ct. 2004, 90 L. Ed. 2d 683 (1986); Williams v. United States, supra; Negron v. Warden, supra. The "ground" advanced by the petitioner is the same in each of the petitions, that his guilty pleas were not voluntarily and intelligently entered, and therefore are void. The petitioner did not present a new "ground" in the present petition. The habeas court also found that the petitioner "abused the writ" by failing to raise this allegation in a previous petition, and by waiting six years to file this petition. As we have found that the habeas court properly denied the petitioner's petition because it did not allege "new grounds," we need not consider alternate grounds of upholding that court. Nor do we consider the petitioner's second claim, which also refers to alleged error in the denial of the petition, or his final claim which refers to the merits of the present petition. "Where, as here, a successive . . . petition presents the same ground as an earlier petition which was decided on its merits, the burden is on the petitioner to show that the ends of justice warrant the court's consideration of the merits of the successive petition." Williams v. United States, supra, 142. The petitioner has failed to make such a showing. He has presented no compelling explanation of his failure to assert this exact claim of involuntariness in one of his earlier applications. He waited nearly six years to claim that he had not understood the elements of the crimes for which he pleaded guiliy. The record suggests that the petitioner was well aware, prior to entering his pleas, of the crimes with which he was charged and the recommended sentence. In sum, the record persuades us that the petitioner's present petition presented no new ground for relief, that he failed to present any basis for believing that consideration on the merits is required, and that the trial court did not abuse its discretion in refusing to reach the merits. There is no error. In this opinion the other judges concurred. The petitioner filed a third petition, not relevant to this case, in 1981, alleging ineffective assistance of trial counsel at the time of his plea. That petition was not submitted as an exhibit in the habeas court and played no part in that court's decision.

Spallone, J. The defendant is appealing from the judgment of the trial court sustaining the plaintiffs administrative appeal. The plaintiff, White Oak Corporation, had contracted with the city of Stamford to perform certain construction work for the city in the downtown area. Under the terms of the contract, the plaintiff was to expand existing intersections, create new intersections and install or improve traffic signals at these intersections. In order for the plaintiff to accomplish the last of these tasks, electrical conduits were laid by the plaintiffs crew of general laborers. These laborers were not licensed by the Connecticut Examining Board for Electrical Work (board), nor did they have any electrical expertise. On January 8, 1982, the defendant department of consumer protection filed a complaint with the board alleging that the plaintiff was in violation of General Statutes § 20-334 and 20-337 by having its agents or employees perform electrical work without having a certificate, license or registration to do so. On February 19,1982, the board held an administrative hearing, pursuant to General Statutes, chapter 54 (the Uniform Administrative Procedure Act), for the purpose of determining whether the plaintiff was in violation of the aforementioned statutes. On May 14,1982, at the conclusion of such hearing, the board found for the defendant and thereupon ordered the plaintiff to immediately and permanently discontinue its unlawful practice of performing electrical work within the state of Connecticut without using properly licensed personnel. In early June, 1982, the plaintiff duly appealed the board's decision to the Superior Court. As in the proceedings before the board, the plaintiff argued that its activities fell within the scope of General Statutes § 20-340 (l), and it was therefore exempt from the licensing provision of chapter 393 of the General Statutes. The trial court, in construing § 20-340, agreed with the plaintiff and sustained the appeal. The defendant now appeals from the Superior Court's judgment, claiming only that the trial court incorrectly construed § 20-340 (1). We agree. In reaching its decision that the plaintiff was exempt from licensing, the trial court first compared the lan guage of § 20-340 (1) to that of § 20-340 (3). The court found that if the definitional phrase "persons employed by" contained in subsection (1) were interpreted to mean "employees," then subsection (3), which specifies "employees," would be made superfluous. Because such a result is disfavored under traditional rules of statutory construction; Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); the trial court concluded that the words "persons employed by" must be defined to encompass some group other than "employees." The court then accepted the plaintiffs argument that, as an independent contractor, the plaintiff was not an employee of the city of Stamford, yet because it was being "employed by" the city to perform the needed construction work, it necessarily fell within the scope of § 20-340 (1). We find the reasoning of the trial court to be erroneous in several respects. First, we conclude that the trial court misconstrued the relevant exemptions contained in § 20-340. Whereas the exemption contained in § 20-340 (1) applies to "persons employed by any federal, state or municipal agency." (Emphasis added.) The exemption contained in § 20-340 (3) applies to "employees of any municipal corporation." (Emphasis added.) Because the entities serving as employers in these two subsections are not identical, the trial court's focus on who is to be employed was misplaced. In other words, if subsection (1) is interpreted to state that "employees of any federal, state or municipal agency" are exempt from licensing, that construction has no effect on the natural reading of subsection (3) exempting "employees of any municipal corporation." We also find error in the trial court's determination that an independent contractor can be exempted from licensing pursuant to § 20-340. It is axiomatic that contractors or independent contractors are not employees of the party for whom they are performing specific work under a specific agreement. The legal incidents of the relationships between an employer and an employee or independent contractor are well established. Lassen v. Stamford Transit Co., 102 Conn. 76, 79-82, 128 A. 117 (1925). "In Alexander v. R.A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514 [1912], we adopted the definition that '[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.' This definition has been amplified in subsequent cases but at no time has the basic principle been altered. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198 [1937]. . . . 'The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.' Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 [1940]; see Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 628, 173 A.2d 497 [1961]; Bourgeois v. Cacciapuoti, 138 Conn. 317, 320-21, 84 A.2d 122 [1951]; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32 [1893]." Darling v. Burrone Bros., Inc., 162 Conn. 187, 195-96, 292 A.2d 912 (1972); see also Spring v. Constantino, 168 Conn. 563, 573-74, 362 A.2d 871 (1975). There seems to be no dispute that the plaintiff was, in fact, a contractor and not an employee. In addition, if we were to accept the plaintiffs argument that, even as an independent contractor, he was employed by the city, the purpose of the statutory licensing requirements would be undermined. When construing a legislative act, it is incumbent on us to consider "its history, its language, the purpose it is designed to serve and the circumstances surrounding its enactment." Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972). Prior to 1965, occupational licensing of various trades in Connecticut was done by municipal ordinances promulgated under local law. See Tenth Connecticut Biennial Report, Legislative Council (1962) p. 85. A study included in that report indicated a need for uniform licensing laws; see id., p. 79; to which the General Assembly responded by enacting Public Acts 1965, No. 493 (now codified in General Statutes, chapter 393). At the time of that enactment, only three licensing exemptions were provided. In 1967, an additional exemption was provided for "employees of any contractor while said contractor is performing work for or subject to inspection by any federal, state or municipal agency or corporation other than a municipal building department, or any public service company." Public Acts 1967, No. 789, § 12. This modification was clearly intended to create an exemption where theretofore none had existed, and, by its terms, would have provided an exemption for the plaintiff in this case. This exemption, however, was repealed in 1975. See Public Acts 1975, No. 75-464. The fact that there was at one time an express licensing exemption for the employees of contractors working for a municipal agency or corporation, coupled with the fact that this exemption was retracted more than ten years ago, leads to the inescapable conclusion that the legislature did not intend § 20-340 (1) to provide an exemption for independent contractors. There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the plaintiffs appeal. In this opinion the other judges concurred. The electrical conduits were two and three inch steel pipes, designed to house the new electrical wiring for the traffic light system. The laborers would dig the needed ditches, lay the pipes in batteries of two or four, encase them in concrete, and then backfill the ditches. At the time of installation, the conduits did not contain any wiring, although the laborers would insert pullstrings in the conduits which enabled the wiring to be installed at a later time. That portion of the job, which entailed the threading of the wiring through the conduits and the final connection of the wires to the system's power source, was to be performed by an electrical contractor engaged by the plaintiff. The board is within and under the authority of the defendant, the department of consumer protection. General Statutes § 21a-6 (3). General Statutes § 20-334 provides in pertinent part: "No person shall engage in, practice or offer to perform the work of any occupation covered by this chapter in this state unless he has first obtained a license as provided in section 20-333, or possesses a card of registration from the state apprentice training division or the board and shall be subject to all the regulations established under this chapter for the purpose of governing apprenticeship training or has been issued a license for such particular work under this chapter prior to July 6,1967. The department of consumer protection shall furnish to each qualified applicant a license certifying that the holder thereof is entitled to engage in the work or occupation for which the person has been issued a license under this chapter, and the holder of such license shall carry it on his person while engaging in such work or occupation." General Statutes § 20-337 provides: "Nothing in this chapter shall require that the ownership or control of a business engaged in providing the work or services licensed under the provisions of this chapter be vested in a licensed person, but all the work and services covered by the definitions set forth in section 20-330 shall be performed by persons licensed for such work or occupation under this chapter." General Statutes § 20-330 (2) defines "electrical work" as: "the installation, erection, maintenance, alteration or repair of any wire, cable, conduit, busway, raceway, support, insulator, conductor, appliance, apparatus, fixture or equipment which generates, transforms, transmits or uses electrical energy for light, heat, power or other purposes." (Emphasis added.) General Statutes § 20-340 provides in pertinent part: "The provisions of this chapter shall not apply to (1) persons employed by any federal, State or municipal agency . (3) employees of any municipal corporation specially chartered by the state of Connecticut . . . ." That there is indeed a difference between a municipal corporation and an agency (be it state, federal or municipal) merits but a brief discussion. In Connecticut, towns and cities are not considered agencies of the state. Bridgeport v. Agostinelli, 163 Conn. 537, 550, 316 A.2d 371 (1972). These same towns and cities may, however, be specially chartered by the state as municipal corporations. See, e.g., Stamford v. Stamford, 107 Conn. 596, 598, 141 A. 891 (1928). Also, territorial subdivisions within a town or city can be made municipal corporations. Id.; Sachem's Head Property Owners' Assn. v. Guilford, 112 Conn. 515, 517-18, 152 A. 877 (1931). An agency, on the other hand, is commonly an administrative division of the governmental entity which is created to carry out a specific function, for example, on a local level, a park department or a school board; or, on a state level, the department of transportation or the department of public works. The trial court's failure to recognize this difference in the entities providing the employment leads to the anomalous result that an employee of a city chartered as a municipal corporation would be exempt from licensing under General Statutes § 20-340, but an employee of that same city's park department would not be exempt. In interpreting statutory language, we must assume that a reasonable and rational result was intended. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1836 (1975). The trial court's interpretation of § 20-340 (1) does not yield such a result. The three exemptions listed in the 1965 act are roughly equivalent to subsections one, two and six of General Statutes § 20-340 as it currently exists. See Public Acts 1965, No. 493, § 9. The plaintiff acknowledges in its brief that its activities were monitored by the department of traffic and parking of the city of Stamford. The legislative history of the 1975 act which repealed the independent contractor exemption clearly reflects an understanding of what the result of that repeal would be: "[w]hat this bill does effectively is require contractors to be licensed when they work on Federal, State and municipal buildings. Heretofore, they have been exempt from that requirement. What the bill does is require them to do that." 18 H.R. Proc., Pt. 11,1975 Sess., p. 5277, remarks of Rep. Wilda S. Hamerman. The plaintiff informs us in its brief that various claims of error were presented to the trial court in the plaintiff's appeal from the board's decision, but that, in light of the trial court's ruling on General Statutes § 20-340, these additional grounds were not considered. If the plaintiff had wished to present these claims of error to persuade us to grant a new trial rather than order judgment dismissing the plaintiff's appeal in the event of a successsful appeal by the defendant, the proper procedure would have been to file a preliminary statement of issues pursuant to Practice Book § 4013 (a) (1), and to include arguments on these matters in its brief. Because the plaintiff has failed to do either, we decline to consider the plaintiff's additional issues. See Huybrechts v. Huybrechts, 4 Conn. App. 319, 320 n.1, 494 A.2d 593 (1985); Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984).

Stoughton, J. The plaintiffs appeal from a judgment of the trial court in favor of the defendants. The plaintiffs claim that the court erred (1) in excluding the testimony of direct and rebuttal witnesses, (2) in finding there was insufficient evidence that the named defendant breached a noncompetition agreement, and (3) in finding there was insufficient evidence that the defendants tortiously interfered with the contractual rights of the plaintiffs. We find error. The underlying facts are not in dispute. The plaintiffs, Michael Katz and Gerald Mastrangelo, entered into a contract on July 30,1982, with the named defendant, Clement Passariello, for the purchase of his one-third stock interest in World Gym East, Inc. (WGE). The contract required an initial payment of $35,000 on July 30, 1982, and $15,000 in installments to be paid over the following year. The named defendant agreed that upon final payment he would resign as president of WGE and would not engage in the gym business within a fifteen mile radius of WGE's location for a five year period. The plaintiffs accelerated the installment payments, making final payment on November 5,1983, at which time Clement Passariello resigned as president. Subsequently, a gymnasium, Passariello-Quest Athletic Facility, Inc. (Quest), was opened in the name of the defendant Georgianna Passariello, Clement Passariello's wife, within fifteen miles of WGE. Georgianna did not sign the contract containing the noncompetition covenant. The principal factual question in dispute at trial was whether Georgianna or her husband managed Quest. After hearing the testimony, the court found that the defendant Clement Passariello was not the manager of Quest and that he was not engaging in the gym business in violation of his noncompetition agreement. Judgment was rendered for the defendants on all counts. The plaintiffs' principal claim of error is that the trial court erred in excluding the testimony of two of their witnesses whose names were not disclosed prior to trial. The record indicates that the defendants attempted to obtain the names of the plaintiffs' witnesses through interrogatories pursuant to Practice Book § 222. The plaintiffs agreed, without a court order, to provide the names of their witnesses in lieu of complying with dis covery. A list of eighteen witnesses was provided, the majority of whom the defendants deposed. The plaintiffs' first claim is that the trial court erred in excluding the direct testimony of detective Ted Forbes. We agree with this claim. Six months after the trial began, the plaintiffs called Forbes to give direct testimony. After an offer of proof, the court sustained the defendants' objection to Forbes' testimony because the plaintiffs had failed to comply with the pretrial agreement for disclosure of witnesses. The parties reached an informal oral agreement which required that the plaintiffs provide the defendants with the names of their witnesses ahead of time. Both parties concede that the agreement was ambiguous. The defendants contend that the agreement required disclosure before trial. By contrast, the plaintiffs contend that as long as they disclosed the identity of a witness before the witness was called to testify, they would be in compliance with the agreement. The purpose for requiring a written stipulation; Practice Book § 249; is to avoid the kind of uncertainty created by informal agreements. We find no authority for upholding the court's enforcement of the parties' informal agreement in this case. If the courts were required to interpret such agreements they would soon be engulfed in a quagmire of collateral issues, impeding rather than furthering the objectives of discovery. The plaintiffs also claim that the court erred in excluding the rebuttal testimony of Jody Grigier. We agree with this claim. Grigier was referred to by name several times during the testimony of the defendant Georgianna Passariello. Grigier was also mentioned in the testimony of several other witnesses. When the plaintiffs called Grigier to rebut the earlier testimony, the court refused to hear her testimony because her name did not appear on the witness list. "Although a plaintiffs rebuttal testimony is ordinarily limited, within the discretion of the court, to such purposes as refuting the defendant's evidence and impeaching or rehabilitating witnesses; State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); Reboni v. Case Bros., Inc., 137 Conn. 501, 508, 78 A.2d 887 (1951); DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932); Tait & LaPlante, Handbook of Conn. Evidence § 3.2; Holden & Daly, Connecticut Evidence § 11; we are unaware of any authority which permits the court to bar in advance the plaintiff from even bringing the rebuttal witness to the stand in order to offer the evidence. See Gervais v. Foehrenbach, 149 Conn. 461, 463, 181 A.2d 253 (1962)." DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 392-93, 494 A.2d 1222 (1985). As we concluded in DeMartin, the proper procedure is to rule on the admissibility of the rebuttal testimony, not on whether a rebuttal witness was disclosed in pretrial discovery. To require that a party disclose rebuttal witnesses before trial would place efficiency before logic. It is simply not possible for a litigant to anticipate all of the opposing evidence that will be elicited at trial. Thus, no party could fully divine which testimony will require rebuttal and which will not. The court abused its discretion when it failed to consider the admissibility of the plaintiffs' rebuttal testimony. These errors are dispositive of the appeal. The plaintiffs' other claims of error raise evidentiary questions which we cannot reach because further evidence must be heard by the court. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. After several days of testimony, there was a lapse in the proceedings for six months. On the Friday before resuming, the plaintiffs called the defendants to inform them that they intended to call Forbes as a witness on Monday. The court concluded that Forbes' testimony was inadmissible because his name did not appear on the plaintiffs' original witness list. "{Practice Book] Sec. 249. stipulations regarding discovery and DEPOSITION PROCEDURE "Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used as other depositions, and (2) modify the procedures provided by this chapter for other methods of discovery."

Borden, J. The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. The defendant's principal claims are that the trial court erred (1) in allowing the state to cross-examine the defendant with evidence of prior acts of misconduct that did not relate to veracity and, additionally, to introduce extrinsic evidence on rebuttal with respect to those acts, (2) in denying the defendant's motion for judgment of acquittal, and (3) in permitting the state to elicit prior consistent statements from two of its witnesses on direct examination. We find error on the defendant's first claim. The jury could reasonably have found the following facts: On September 2, 1982, the victim was working as a prostitute in Waterbury. A man driving a brown Monte Carlo, later identified as the defendant, pulled up alongside the victim and began talking with her. He left the car to approach her, displayed a revolver, and told her to get into the car. The victim complied because she was frightened. They drove one mile to Fulton Park where the defendant stopped the car. He grabbed the victim by the hair and said, "Bitch, you're going to do what I want [you] to do." She struggled with the defendant and he hit her a number of times. He forced her to perform oral and vaginal intercourse. The entire incident lasted about thirty minutes and, at the conclusion, the defendant drove off in his car leaving the victim in the park. A motorist stopped to aid her and took her to the police station. On the way, the victim saw her friend, Velma King, another prostitute, speaking with the defendant who was sitting in the Monte Carlo. She yelled to King not to leave with the defendant. The defendant sped off and King accompanied the victim to the police station. The victim identified the defendant during a photographic array and in court. I The defendant first claims that the trial court erred in permitting the state to impeach him on collateral matters raised during cross-examination. This claim has two aspects: first, that the trial court erred in allowing the defendant to be questioned on cross-examination about prior acts of misconduct, namely, soliciting prostitutes; and second, that the trial court erred in allowing the state, after the defendant's denial of the misconduct, to present two of the prostitutes as rebuttal witnesses. We agree. In order to place this issue in its proper context, it is necessary to examine the relevant testimony, objections and rulings. The victim testified, as the state's witness, that both prior to and after the sexual assault, she had seen the defendant. Specifically, she testified that she had seen Judy Nordby getting out of the defendant's car on one occasion and Denise Dearie getting into the car on another. She testified, without objection by defense counsel, that both women were prostitutes. The defendant testified on his own behalf, and denied committing the sexual assault. On cross-examination, the assistant state's attorney asked: "And, you occasionally would pick up prostitutes in the car, isn't that right?" Defense counsel objected, but after a short colloquy withdrew his objection. The defendant responded that he did not pick up prostitutes. The assistant state's attorney then asked the defendant whether he had "picked up" Denise Dearie and Judy Nordby, respectively.. The defendant answered "No." The state's attorney then began to ask: "Didn't you have sex" at which point defense counsel objected. The trial court sustained the objection on the ground that the defendant had denied ever "picking up" the two women. Thereafter, the assistant state's attorney asked the defendant whether he "picked up" Debbie Cybulski. Defense counsel objected on the basis that there was no earlier testimony by the victim concerning this person. The objection was overruled and defense counsel duly excepted. The state's attorney thereupon asked the defendant whether he ever "picked up" Sandra Webb. Once again, the defendant objected and out of the presence of the jury argued that the state was attempting to impeach the defendant by evidence of prior acts of misconduct. Defense counsel argued that patronizing a prostitute, a misdemeanor, is not a basis for impeachment. The court ruled that the questions were permissible. Defense counsel took an exception to the ruling only with respect to questions about Cybulski and Webb, conceding that since the victim had earlier testified that she had seen the defendant in the presence of Nordby and Dearie, the questions asked of the defendant with respect to these two women were relevant to the victim's identification of him. Thereafter, the defendant was asked whether he "picked up" Cybulski and Webb, respectively, to which he answered "No." After both the state and the defendant had completed their cases, the state called as rebuttal witnesses both Nordby and Cybulski. The defendant objected on the ground that the purpose of the testimony was to place before the jury evidence of the defendant's prior acts of misconduct, namely, patronizing prostitutes, which, even if a permissible subject of inquiry on cross-examination, as a collateral matter could not be proved by the introduction of extrinsic evidence. The defendant argued further that the state was required to accept the answers given by the defendant on cross-examination that he had not "picked up" Nordby or Cybulski. The state argued that the evidence was admissible on the issue of the truthfulness of the defendant's answer on cross-examination. The trial court overruled the defendant's objection and allowed the rebuttal witnesses to testify. Thereafter, both Nordby and Cybulski testified that they were prostitutes, and had been approached by the defendant and had gone off with him. Cybulski testified that she met the defendant in a bar and left with him for Fulton Park and remained with him for three and one-half hours. Nordby testified that after the defendant drove up to her in his car she got in and they drove away. It is beyond dispute that a witness may be impeached by evidence of specific acts of misconduct which relate to veracity, but not by those that merely illustrate general bad behavior. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); C. Tait & J. LaPlante, Connecticut Evidence § 7.22a. The concern, of course, is that a jury will convict the defendant on the basis of his bad character as evidenced by his prior bad acts and not on the basis of the evidence adduced at trial on the specific crime with which he is charged. Where, however, the collateral bad acts relate to veracity, the defendant is subject to cross-examination concerning them. State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985); State v. Orsini, 187 Conn. 264, 268, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). "Whether particular acts of misconduct are relevant to lack of veracity depends on whether they have a logical tendency to indicate a lack of veracity. . . . This question of relevancy is, generally speaking, not within the discretion of the court. . . . Thus, unless particular acts of misconduct are indicative of a lack of veracity, it is error to permit cross-examination concerning them, however much they may be indicative of bad moral character." (Citations omitted.) Vogel v. Sylvester, supra, 675-76. It has been recognized that a witness may be asked whether he "was ever involved in stealing"; State v. Martin, supra, 87; whether he has cheated on his income taxes; State v. Sharpe, 195 Conn. 651, 657-58, 491 A.2d 345 (1985); and whether he used aliases or faked his death. State v. Dolphin, 195 Conn. 444, 458-459, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). These acts of misconduct logically tend to indicate a lack of veracity. The act of soliciting a prostitute does not. Our Supreme Court has specifically recognized that a witness' sexual conduct does not reflect upon his or her credibility. State v. Mastropetre, 175 Conn. 512, 518-19, 400 A.2d 276 (1978). In light of our conclusion that soliciting a prostitute is not misconduct which relates to veracity, absent its relevancy to a substantive issue in the case; State v. Perry, supra, 521; it was error for the trial court to permit the cross-examination in question. The state does not argue that the evidence was offered on a substantive issue, nor could it since the trial court had already ruled such evidence inadmissible for that purpose. We conclude, therefore, that it was improper to permit the state to ask the defendant whether he "picked up" Cybulski or Webb. Having concluded that there was error in the state's cross-examination of the defendant, ordinarily we would next inquire whether it was rendered harmless, especially in light of the defendant's concession that two functionally equivalent questions were proper. We need not consider the issue of harmlessness, however, since we conclude that there was reversible error on the second part of the defendant's claim, namely, that the introduction of extrinsic evidence on this collateral matter was improper. As we have already noted, a witness may be impeached with prior acts of misconduct which relate to veracity. Martyn v. Donlin, supra, 408; C. Tait & J. LaPlante, supra, § 7.22a. If the witness denies the misconduct, the examiner must take the answer and is precluded from offering extrinsic evidence of such conduct, unless it bears on a substantive issue. State v. Horton, supra, 381. " '[I]f the witness stands his ground and denies the alleged misconduct, the examiner must "take his answer" not that he may not cross-examine to extract an admission, but,in the sense that he may not call other witnesses to prove the discrediting acts.' McCormick, [Evidence (3d Ed.)] § 42." Id., 380. The state, once again, does not claim that the extrinsic evidence related to a substantive issue in the case. It argues, instead, that the evidence was introduced on the narrow issue of whether the defendant testified falsely when he denied picking up prostitutes. Based on the principles outlined above, it was error for the trial court to allow the state to go beyond the defendant's answer and to introduce extrinsic evidence on the collateral matter. This does not end our inquiry, however. We must now determine whether the error was harmful to the defendant. State v. Horton, supra, 381. Where, as here, the error is not of constitutional dimension, the defendant bears the burden of demonstrating that the "erroneous actions of the court likely affected the result." Id., 382. We have reviewed the transcript in this case, and conclude that the introduction of the extrinsic evidence of the defendant's prior act of patronizing a prostitute probably affected the result. We reach this conclusion because the evidence in the case was such that the credibility of the witnesses was of utmost importance. The jury was presented with two versions of the events, namely, the victim's, as corroborated by her constancy of accusation witnesses, and the defendant's. There were no eyewitnesses to the assault. Nor was there any corroborating evidence. Thé defendant presented an alibi defense, claiming to have been in Washington, D.C., with his wife at the time of the sexual assault. Both the defendant, his wife and various relatives testified in this regard. The evidence presented by Cybulski and Webb that the defendant had solicited them was, therefore, very damaging because of its tendency to convince the jury that the defendant had a bad character since he patronized prostitutes, and therefore probably committed the sexual assault. Since the state's case depended on the jury believing the victim's testimony and, thus, disbelieving, the defendant's testimony, it was likely that the erroneous admission of the extrinsic rebuttal evidence affected the result. II The defendant also claims that the trial court erred when it failed to grant the defendant's motion for judgment of acquittal. We disagree. The defendant was convicted of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. That statute provides in relevant part: "A person is guilty of sexual assault in the first degree with a deadly weapon when such person commits sexual assault in the first degree . . . and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a deadly weapon." (Emphasis added.) The crux of the defendant's argument is that the state failed to prove that the defendant used a deadly weapon at Fulton Park in furtherance of the sexual assault. The defendant does not contest that he threatened the use of, displayed or represented that he possessed a deadly weapon. The defendant argues, however, that because the revolver was not brandished in the park, the state failed to meet its burden of proof. We disagree. The defendant's argument would require us to accept the proposition that, under § 53a-70a, the state must prove that the defendant threatened the use or displayed or represented by his words or conduct that he possessed a deadly weapon while the sexual assault actually took place or immediately prior thereto. We reject this proposition, and conclude that where the defendant, within a span of thirty minutes, forces a per son at gunpoint into a vehicle, and transports her one mile to a location where he sexually assaults her, a jury could conclude, on the basis of the evidence and all the reasonable inferences flowing therefrom; State v. Liscio, 9 Conn. App. 121, 125, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1208 (1987); that the defendant threatened the use or displayed by his words or conduct that he possessed a deadly weapon "in the commission of" a sexual assault. Ill The defendant also claims that the trial court erroneously allowed the state to elicit prior consistent statements from two witnesses, Velma King and Officer Beth A. Martell, respectively, during their direct examination. We disagree. A King testified on direct examination that she was about to get into a car with a person who had offered her twenty-five dollars for her sexual services when the victim ran toward her yelling, "Don't go out with him. He just raped me." She testified that as the car sped off she observed that the license plate number was 621136 and the plates were white with blue or black letters. She described the driver as a black man with an afro hairstyle and a heavy build, who was wearing black framed glasses. King testified that she accompanied the victim to the police station. All this testimony was elicited without objection. The state's attorney thereupon asked King whether she talked with anyone at the station and, if so, what she said. Defense counsel objected on the basis that the testimony was being elicited in an attempt to show a prior consistent statement where the witness had not yet been impeached by an inconsistent statement. The trial court nonetheless allowed the question. King responded that she spoke with some police officers and "told them the color of the car, what the guy looked like and the license plate." The defendant claims on appeal that it was error for the trial court to admit the prior consistent out-of-court statement. We note first that the general rule is that the prior consistent statements of a witness are inadmissible at trial. State v. Anonymous (83-FG), 190 Conn. 715, 728, 463 A.2d 533 (1983); State v. Dolphin, 178 Conn. 564, 568, 424 A.2d 266 (1979). "Where the prior consistent statement becomes admissible, it may not be used as substantive evidence of the facts contained therein, but only to rehabilitate the credibility of the witness which has been attacked. " (Emphasis added.) State v. Anonymous (83-FG), supra. The rationale upon which this rule is based is that the witness' story " 'is not made more probable or more trustworthy by any number of repetitions of it.' " State v. Dolphin, supra, 569. Under the circumstances of this case, we view King's statement of her conversation with the police officers as no more than a statement in which she provided routine and general information pertinent to a criminal investigation. King's answer to the question was so totally lacking in detail that it did not constitute a consistent statement which was likely to implicate her credibility in any way. King simply stated that she described the color of the car, the license plate number and the driver. Had she gone into greater detail, as in her earlier testimony, the issue of an erroneous admission of a prior consistent statement would be squarely before this court. B The second aspect of the defendant's claim is that the trial court exceeded the permissible scope of the constancy of accusation doctrine when it permitted Martell, over the defendant's objection, to relate the description of the assailant's car given to her by the victim, including a statement of the license plate number. The defendant failed to take an exception to the trial court's ruling in this regard and we therefore decline to review the claim. See Practice Book § 288, 4063 (d) (3); State v. Siemon, 172 Conn. 19, 20, 372 A.2d 140 (1976); State v. Hawkins, 162 Conn. 514, 516-17, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249 (1972). There is error, the judgment is set aside and the case is remanded for a new trial. In this opinion the other judges concurred. We note that in the context of the evidence adduced at this trial and in light of the nature of the charges, when the state asked whether the defendant "picked up" certain people who the jury already knew were prostitutes, it was a rational inference that the state was asking the defendant about prior acts of soliciting prostitutes. The defendant also argued that the cross-examination constituted a violation of a prior court ruling. The state had filed a motion to consolidate other files pending against the defendant for sexual assault. The state also filed a motion in limine to offer evidence of other crimes involving these sexual assaults, on the issue of identity. Some of the pending sexual assault charges were against women about whom the state had questioned the defendant on cross-examination. Both these motions were denied. The defendant claimed that the state's attempt to impeach the defendant by his prior association with prostitutes was in violation of this order of the court. In view of our conclusion, we need not review this claim. Despite our decision on the defendant's first claim which requires a new trial on the sexual assault charge, we must review the defendant's claim of insufficient evidence since, if he prevailed, he would be entitled to a judgment of acquittal. We consider this claim of the defendant because it is likely to recur on retrial. The defendant raises two other claims of error. Because they are not likely to recur on retrial, we do not review them. Despite the defendant's suggestion otherwise in his brief, King did not repeat the license plate number a second time when relating what she told the police officers.

Stoughton, J. This is an appeal from the judgment of the trial court rendered after the acceptance of a report of a committee established pursuant to General Statutes § 47-34. We find error. The plaintiffs are the owners of a lot on Phoenix Drive in Groton by virtue of a warranty deed. The defendants are the owners of a lot which is contiguous to the plaintiffs' lot, also by virtue of a warranty deed. The grantor was the same on each of the deeds. A dispute arose as to the ownership of a portion of the land where the two properties adjoin. The plaintiffs brought this action seeking injunctive relief and damages in the first count. In the second count, the plaintiffs requested that a committee be appointed pursuant to General Statutes § 47-34, and that the court quiet title. On October 15,1984, with the initial acquiescence of the defendants, the court appointed a committee to inquire into the facts and to erect and establish uncertain bounds to real estate, and report the facts and their doings to the court. Although the committee had been ordered to report within sixty days, it failed to do so. The trial court extended the time for the committee to file its report over the objection by the defendants that there were no lost or uncertain boundaries. The committee filed its report on September 9, 1985. The plaintiffs filed a motion to confirm the report, and the defendants filed motions to correct and an objection to the acceptance of the report. Thereafter, the defendants filed a motion to revoke the reference to the committee upon the grounds, inter alia, that the pleadings had not been closed and that they intended to claim a jury trial on the issue of title. The court continued the matter for sixty days, and ordered that the pleadings be closed and that the committee act on the motion to correct the report. Thereafter, the committee filed a supplemental report in which it made no corrections. The defendants filed an answer, a claim for the jury, and an exception to the failure of the committee to correct its report. In its report, the committee made certain determinations which include both findings of fact and conclusions of law. It found that the plaintiffs acquired their property by deed dated September 9, 1982, and recorded on September 10,1982, and that the defendants acquired their property by deed dated June 18, 1982, and recorded on April 18,1983. It further found that substantial ambiguity exists relative to the maps referred to in the deeds, an ambiguity which the committee specifically did not resolve because the deed to the plaintiffs was recorded more than seven months prior to the recording of the deed to the defendants and contained a description and a map reference. The committee also found that the deed to the defendants was recorded substantially after the plaintiffs' deed, and that the defendants were thus on notice and took subject to the conveyance to the plaintiffs. The committee further found that there is a monument on the westerly line of Phoenix Drive at a point south of the southeasterly comer of the plaintiffs' property, and that the parties had offered conflicting testimony as to the distance between the southeasterly corner of the plaintiffs' property and the monument. On the basis of its reasoning that the defendants took with notice of and subject to the conveyance to the plaintiffs, the committee determined that the southeasterly corner of the plaintiffs' lot was 1.94 feet north of the monument as claimed by the plaintiff. The trial court rendered judgment that the defendants' exception to the supplemental report was without merit, and that the southeasterly corner of the plaintiffs' property commences 1.94 feet north of said monument. The defendants claim that the court erred in accepting the committee's report and in rendering judgment upon it. We agree. Under the provisions of General Statutes § 47-34, when the boundaries of lands between adjoining proprietors have been lost or become uncertain and the parties cannot agree to establish the boundaries, one or more of them may bring a complaint and the court may appoint a committee of not more than three disinterested property owners. The function of the committee is to inquire into the facts, and to erect and establish the lost and uncertain bounds, and to report the facts and their doings to the court. The mission of the committee is to erect and establish from the evidence boundary lines which have become lost or have disappeared. The committee does not deal with title. West Hartford Ecclesiastical Society v. First Baptist Church in West Hartford, 35 Conn. 117, 119-20 (1868). Its whole object is the restoration of lost boundaries. Mosman v. Sanford, 52 Conn. 23, 31 (1884). Proceedings in accordance with what is now General Statutes § 47-34 have no effect on questions of title. Id. The committee, by the terms of its own report, made no findings as to the ambiguity concerning the location of the boundary between the parties' lands. Rather, the committee concluded that title to the contested strip rested with the plaintiffs because they recorded their deed first, and that the defendants thus had notice and took subject to the conveyance to the plaintiffs. As we have noted above, it is not the duty of a committee appointed pursuant to General Statutes § 47-34 to determine the legal effect of one party's having recorded a deed before another. Neither is it its function to ascertain whether one party had constructive notice of a conveyance to another party. In basing the location of the disputed boundary solely on its own conclusions of law, the committee acted beyond the powers delegated to it under § 47-34. Accordingly, the trial court should not have accepted the report and rendered judgment thereon. There is error, the judgment is set aside and the case is remanded for further proceedings according to law. In this opinion the other judges concurred. "[General Statutes] Sec. 47-34. bounds between proprietors reestablished by superior court. When the boundaries of lands between adjoining proprietors have been lost or become uncertain and they cannot agree to establish the boundaries, one or more of them may bring a complaint to the superior court for the judicial district in which the lands or a portion of them are situated. The court may, upon the complaint, order the lost and uncertain bounds to be erected and established and may appoint a committee of not more than three disinterested property owners. The committee shall give notice to all parties interested in the lands to appear before it and, having been sworn, shall inquire into the facts and erect and establish the lost and uncertain bounds and may employ a surveyor to assist therein and shall report the facts and their doings to the court. If the court finds that the parties were duly notified, it may confirm such doings; and certified copies of the report and decree shall be recorded in the records of the town in which the lands are situated, and the bounds, so erected and established, shall be the bounds between the proprietors."

Spallone, J. The defendant administrator of the Unemployment Compensation Act (administrator) is appealing from the decision of the trial court sustaining the plaintiffs administrative appeal. The administrator denied the plaintiffs claim for benefits on the ground that she left work voluntarily and without cause. The plaintiff then appealed to an appeals referee who, after a hearing de novo, made findings of fact and concluded that the claimant was disqualified from receiving benefits under General Stat utes (Rev. to 1985) § 31-236 (2) (A), because she quit her job voluntarily and without "cause." The plaintiff appealed the decision of the appeals referee to the employment security board of review (board). The board adopted the appeal referee's findings as its own, affirmed the decision and dismissed the plaintiff's appeal. The plaintiff then appealed the board's decision to the Superior Court, F. Freedman, J., which sustained the appeal and remanded the matter "for proceedings consistent with this opinion." The board, on remand, again reviewed the record in the plaintiff's case, including the tape recording of the hearing before the referee. On the basis of its review of the record, the board made further findings of fact and again concluded that the plaintiff had left suitable work voluntarily and without "cause" within the meaning of General Statutes (Rev. to 1985) § 31-236 (2) (A). The plaintiff appealed that second decision of the board to the Superior Court. The administrator moved for judgment dismissing the plaintiffs appeal on the ground that the latest decision of the board was not arbitrary, unreasonable or illegal. A state trial referee, Hon. Irving Levine, in his capacity as the trial court, denied the administrator's motion for judgment, concluding that the prior decision of the court had not authorised the board on remand to make new findings and a new decision but rather had validated the plaintiff's application for benefits. The trial referee, therefore, sustained the plaintiff's appeal and ordered that she be paid benefits. The administrator thereafter filed this appeal. The administrator claims that the trial referee erred (1) in concluding that the prior decision of the trial court did not authorize the board, on remand, to conduct further proceedings in connection with the plaintiffs application for unemployment compensation benefits, and (2) in improperly substituting its judgment for that of the board by granting the claimant unemployment benefits. We agree with the administrator's first claim. In its memorandum of decision, the trial court, F. Freedman,,/., expressly stated: "It cannot, however, be said that as a matter of law there was but one conclusion that could have been reached by the referee. The court therefore, can go no further than to sustain the appeal. 'For the court to go further and direct what action should be taken [by the administrative agency] would be an impermissible judicial usurpation of the administrative functions [of the administrative agency].' Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974); see also Denby v. Commissioner, 6 Conn. App. 47, 502 A.2d 954 (1986)." (Brackets in original.) Thereupon, the court remanded the matter to the board for "proceedings consistent with this opinion." The court's language clearly indicates that it did not intend to direct the board to find a particular result. The cases cited by the court, Bogue v. Zoning Board of Appeals, supra, and Derby v. Commissioner, supra, clearly support the trial court's action of remanding the matter to the administrative agency for further proceedings where more than one conclusion could be drawn by the agency. See also Persico v. Maher, 191 Conn. 384, 410, 465 A.2d 308 (1983); Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976); see Watson v. Howard, 138 Conn. 464, 86 A.2d 67 (1952). The state trial referee did, in essence, exactly what the first trial court had declined to do, namely, reverse the decision of the board and direct the administrator to grant unemployment benefits to the plaintiff. Such action was erroneous. Because we find error on the administrator's first claim, it is unnecessary for us to consider his second claim of error. There is error, the judgment sustaining the appeal is vacated and the case is remanded for a hearing on the merits of the plaintiff's appeal. In this opinion the other judges concurred. The trial referee's findings of fact, which were adopted by the employment security board of review, are as follows: "1. The claimant has taken an appeal from a determination of the Administrator which denied benefits from May 19,1985, on the ground of a voluntary termination of employment without good cause. "2. The claimant was employed part-time as a receptionist at the optimetrical firm of Furze and Ackley. She worked Monday through Wednesday and her hours were from 10:00 A.M. until 4:00 P.M. She earned $4.25. per hour. She was unhappy with her work because she felt she deserved a higher rate of pay and had asked her employers for a raise. She was told that she could not have a raise during the week that she quit. "3. The employers were unhappy with the claimant's services. She had difficulty staying until 4:00 P.M. as she was scheduled preferring to come in early and leave early. This upset the owners. She also treated the store as an extension of herself. When she was there she would receive personal telephone calls and had members of her family with with her while she was on duty. It was felt that this detracted from the purpose of the store. "4. The precipitating incident occurred when a Mrs. Gold came in for her glasses. The claimant had called this customer on the previous day to tell her that only her reading glasses were ready and that she would have to wait for her long distance glasses and the glasses for her husband. The customer believed that all the glasses were ready and demanded them of Mr. Ackley who was waiting on her. Mr. Ackley, in turn, sought out the claimant who was in charge of these matters. After a heated exchange of words, the claimant terminated her work." General Statutes (Rev. to 1985) 5 31-236 (2) (A) provides in pertinent part: "An individual shall be ineligible for benefits . . . (2) (A) if, in the opinion of the Administrator, he has left suitable work voluntarily and without sufficient cause connected with his work, provided no individual shall be ineligible for benefits if he leaves suitable work for cause, including leaving as a result of changes in conditions created by his employer, or until such individual has earned at least ten times his benefit rate . . . ." The board's expanded findings of fact, filed in response to the court's remand, are as follows: "1. The claimant was employed as a part-time receptionist with the subject employer for approximately six years. Her hours were from 10:00 a.m. to 4:00 p.m., three days per week, and her rate of pay at the time of separation was $4.50 per hour. "2. The claimant voluntarily terminated her employment on May 22, 1985, following a dispute with Lawrence Ackley, one of two partners in the firm. "3. The dispute with Mr. Ackley occurred while Mr. Ackley was waiting on a customer. The customer had called earlier in the day to determine whether several pairs of glasses which she had ordered were ready. Although the claimant had informed the customer on the telephone that only one pair of glasses had come in, when the customer spoke to Mr. Ackley, she insisted that she had been informed that her entire order was ready. The claimant had informed Lyle Furze, the other partner in the firm, of her conversation with the customer. "4. Because Mr. Ackley was not familiar with the customer's order, he inquired of the claimant, who was performing work in the back room. When Mr. Ackley asked the claimant about the missing pair of glasses, the claimant replied that she already explained the situation to Mr. Furze. "5. Mr. Ackley then yelled at the claimant, 'Where are they?' "6. The claimant told Mr. Ackley that that was the last time he would yell at her and that she was quitting at once. "7. The exchange between Mr. Ackley and the claimant was limited to the dialogue set forth in findings of fact numbers 4-6. Although voices were raised, no invective or offensive language was used, and Mr. Ackleyexpressed no criticism of the claimant. "8. The claimant believed Mr. Ackley to be a difficult person to get along with and a difficult employer to satisfy. Although the claimant experienced no difficulties with Mr. Furze, she had had several previous disagreements with Mr. Ackley. "9. Approximately seven months prior to the final incident, the claimant had had an argument with Mr. Ackley over her request for a raise. Mr. Ackley had become very excited during the argument and had pointed his index finger at her face. "10. The claimant had been unsatisfied with her wages for some time. Within ten days of the final incident, the claimant had again requested a raise. No action had been taken on her request, and the claimant correctly understood that her request would not be granted. "11. The claimant's primary motivation for quitting was her dissatisfaction with the personality and behavior of Mr. Ackley. The claimant was also motivated to leave by her dissatisfaction with her wages and the denial of her request for a raise. "12. The claimant had not sought professional assistance for job-related stress and had not received professional advice to leave her job."

The defendant's motion for permission to file a "pro se" brief in addition to the brief filed by her attorney 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 Hartford County is denied.

The plaintiff's motion for an extension of time in which to file briefs is granted to the extent that the plaintiff is given until June 23, 1975, to file her brief and the defendant until thirty days after the filing of the plaintiff's brief to file his brief. Norman J. Johnson, in support of the motion. Submitted May 1 decided May 8, 1975 The plaintiff's motion for remand to the trial court for a rehearing on the "applicability and effect" of article first, § 20, of the Connecticut constitution is denied.

Peteks, J. This case concerns the right of owners of a cooperative apartment building to impose restraints on the right to alienate one of the cooperative apartments. The plaintiffs, Conrad Jones and Florence McNulty, who had entered into a con tract of sale for a cooperative apartment, brought suit against the defendants, Walter F. O'Connell, Pauline F. O'Connell, Margaret Cavanaugh, Christopher H. Smith and Harbor House, Inc., to enjoin the defendants' disapproval of the contemplated sale. The plaintiffs also sought monetary damages from the individual defendants for their tortious interference with the plaintiffs' contract. After a trial to the court, judgment was rendered for the defendants and the plaintiffs have appealed. The underlying facts are undisputed. In 1975, the defendant Walter F. O'Connell transferred property at 252-58 Main Street, Southport, to a newly formed Connecticut corporation, the defendant Harbor House, Inc., so that Harbor House might hold the property as a cooperative residential apartment house. The defendant Christopher H. Smith, an attorney, prepared the appropriate documentation, consisting of a memorandum of offering for the stock, proprietary leases for the individual apartments, and by-laws for the corporation. .From the time of the first meeting of the corporation, the Harbor House directors have been the individually named defendants, Walter and Pauline O'Connell, Christopher Smith, and Margaret Cavanaugh. In 1979, just before the present controversy arose, the leasehold interests in Harbor House, manifested by ownership of stock and assignments of proprietary leases, were distributed among the defendants and the plaintiffs as follows: The plaintiff Florence McNulty owned 11.2 percent of the stock and was the lessee of apartment 1A. The plaintiff Conrad Jones owned 25.5 percent of the stock and was the lessee of apartment 2. The defendant Margaret Cavanaugh owned 25.5 percent of the stock and was the lessee of apartment 3. The defendant "Walter O'Connell owned 37.8 percent of the stock and was the lessee of apartments IB, 1C and 4. On November 5, 1979, the plaintiffs entered into a written contract for Florence McNulty to sell her stock in Harbor House and to assign her proprietary lease in apartment 1A to Conrad Jones. This contract of sale was expressly made "subject to the approval of the directors or shareholders of the Corporation as provided in the Lease or the corporate by-laws." Had the transfer to Jones been approved, he would have become the owner of 36.7 percent of the Harbor House stock and the lessee of two apartments, one underneath the other. Jones was interested in acquiring additional living space for his family because in 1979, one year after his acquisition of apartment 2, he had remarried and become the stepfather of two daughters, aged 9 and 13. Any lessee's right to sell shares and to assign a proprietary lease in Harbor House is expressly made conditional upon the consent of the Harbor House board of directors, or of at least 65 percent of the corporation's outstanding shares, by virtue of separate and somewhat inconsistent provisions in the Harbor House documentation. Under the memorandum of offering, assignments are to be approved only for persons of suitable "character and financial responsibility." Under the proprietary lease, however, consent to assignments can be granted or withheld "for any reason or for no reason." The corporate by-laws are silent as to what may constitute an adequate basis for withholding consent to an assignment. The plaintiffs were unable to procure the requisite consent for their contemplated transfer. First the board of directors and later the stockholders of Harbor House refused to approve their contract of sale. Subsequent to this disapproval, Walter O'Connell and Margaret Cavanaugh offered to purchase the stock and the lease of apartment 1A from Florence McNulty, an offer she refused because of her commitment to Conrad Jones. The present litigation then ensued. In the trial court, after an exhaustive examination of the plaintiffs' claims, judgment was rendered for the defendants. The court found that the defendants had acted reasonably and in good faith, and that the plaintiffs had failed to prove their various claims of wrongful interference with their contract. Each of these conclusions is challenged on this appeal. We find no error. I The plaintiffs' principal claim of error asserts that the evidence presented at trial fails to support the trial court's conclusion and finding that the defendants acted reasonably in disapproving the transfer of the stock and the leasehold interest appurtenant to apartment 1A. Before we reach that issue, however, we must first determine the standard by which the propriety of the defendants' withholding of their consent is to be measured. Although this court has not previously confronted the question of restraints on alienation of property interests in cooperative residential apartments, we have addressed the legality of such restraints on alienation in related contexts. On the one hand, in eases involving the construction of wills involving the devise of both real and personal property, we have noted that "[t]he law does not favor restraints on alienation and will not recognize them unless they are stated 'in unequivocal terms'; Williams v. Robinson, 16 Conn. 517, 523 [1844]"; Romme v. Ostheimer, 128 Conn. 31, 34, 20 A.2d 406 (1941); and that " [i] t is the policy of the law not to uphold restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose." Peiter v. Degenring, 136 Conn. 331, 336, 71 A.2d 87 (1949); Colonial Trust Co. v. Brown, 105 Conn. 261, 278-81, 135 A. 555 (1926). See generally Manning, "The Development of Restraints on Alienation Since Gray," 48 Harv. L. Rev. 373, 401-406 (1935), and Schnebly, "Restraints Upon the Alienation of Legal Interests," 44 Yale L.J. 961, 1186, 1380 (1935). On the other hand, in a case involving a lease provision requiring that a lessor consent in writing to the assignment of a commercial lease, we have cited with approval the majority rule that "the lessor may refuse consent and his reason is immaterial." Robinson v. Weitz, 171 Conn. 545, 549, 370 A.2d 1066 (1976), relying on Segre v. Ring, 103 N.H. 278, 279, 170 A.2d 265 (1961). See also B & R Oil Company, Inc. v. Ray's Mobile Homes, Inc., 139 Vt. 122, 123, 422 A.2d 1267 (1980); 1 Friedman on Leases (1974) § 7.304a. But see 2 Restatement (Second), Property (Landlord and Tenant) § 15.2(2) (1977); 1 Am. Law of Property (Lezar 1952) § 3.58. An assessment of how to apply these competing principles to restraints on the alienation of cooperative apartments must take account of the reality that cooperative ownership is in many ways sui generis, a legal hybrid. For some purposes, the "owner" of such an apartment has legal title and an interest in real property, while for other purposes his rights as a tenant of the corporation and a holder of its stock more closely resemble an interest in personal property. Alexy v. Kennedy House, Inc., 507 F. Sup. 690, 697 (E.D. Pa. 1981); Sanders v. The Tropicana, 31 N.C. App. 276, 281, 229 S.E.2d 304 (1976); see also 2 Tiffany, The Law of Real Property (3d Ed.) 483.75, 483.76 and 483.78 (1982 Cum. Sup.); Bratt, "Cooperative Apartments : A Survey of Legal Treatment and an Argument for Homestead Protection," 1978 U. Ill. L.F. 759, 770-78 (1978). As did the trial court, we deem it appropriate to take a middle road in enforcing provisions that impose conditions upon the transfer of the hybrid cooperative apartment. Provisions conditioning transfers upon the consent of the cooperative corporation are neither automatically void nor automatically valid. If the provisions are stated unequivocally, and serve a legal and useful function, i.e., the reasonable protection of the financial and social integrity of the cooperative as a whole, they are not barred by our policy disfavoring restraints on alienation. Such provisions are permissible, however, only insofar as they are limited to the purpose for which they are designed. Unlimited consent clauses, permitting disapproval of transfers for any reason whatsoever, or for no reason, constitute illegal restraints because they fail sufficiently to recognize the legitimate interest of the holder of a leasehold to enjoy reasonable access to a resale market. These distinctions, are consistent with the holdings of the majority of courts in other jurisdictions that have addressed this issue. See, e.g., Mowatt v. 1540 Lake Shore Drive Corporation, 385 F.2d 135, 136-37 (7th Cir. 1967); Alexy v. Kennedy House, Inc., 507 F. Sup. 690, 699 (E.D. Pa. 1981); Logan v. 3750 North Lake Shore Drive, Inc., 17 Ill. App. 3d 584, 589-91, 308 N.E.2d 278 (1974); 68 Beacon Street, Inc. v. Sohier, 289 Mass. 354, 360-62, 194 N.E. 303 (1935); Sanders v. The Tropicana, 31 N.C. App. 276, 282, 229 S.E.2d 304 (1976). Contra, in part, Weisner v. 791 Park Avenue Corporation, 6 N.Y.2d 426, 434, 190 N.Y.S.2d 70, 160 N.E.2d 720 (1959); see also Bratt, supra, 783-85; note, "Co-operative Apartment Housing," 61 Harv. L. Rev. 1407, 1416-20 (1948); Tiffany, supra, §483.79. Applying these principles to the provisions of the Harbor House documentation, we agree, for two reasons, with the trial court's conclusion invalidating the clause in the proprietary lease purporting to permit consent to an assignment of the lease to be granted or withheld "for any reason or for no reason." As a matter of interpretation, that clause is not unequivocal, because it must be read conjointly with the memorandum of offering which limits the authority to disapprove assignments to cases in which the transferee is a person of unsuitable "character and financial responsibility." Riven our reluctance to enforce restraints on alienation, the limited clause in the memorandum of offering must prevail over the unqualified consent clause in the proprietary lease. As a matter of public policy, furthermore, we hold, as do the authorities cited above, that only consent clauses reasonably tailored to the protection of the legitimate interests of the cooperative serve the kind of "legal and useful purpose" which protects them from avoidance as illegal restraints on alienation. We must turn then to the plaintiffs' assertion that the trial court, on the evidence before it, erred in determining that the defendants acted reasonably, in light of the interests of the cooperative as a whole, in refusing consent to the transfer of apartment 1A. Although the defendants, at the time of their vote as directors and as stockholders, had specified no reasons for their withholding of consent, they did provide the court at trial with the propositions upon which they had relied. No special issue has been raised on this appeal that the delay in notifying the plaintiffs of the reasons for the denial of consent materially prejudiced the plaintiffs. The trial court's memorandum of decision sets forth the reasons given by the defendants for withholding consent to the contemplated transfer. These reasons have nothing to do with the financial responsibility of Jones, which is conceded. Instead, they focus on Jones' tenancy of apartment 2 and upon functional consequences of a combined tenancy for apartments 2 and 1A. The defendants claimed that Jones was responsible for a recurrently unlocked front hall entrance door, that Jones had misled the defendants about his intended use of apartment 2, that Jones had behaved abrasively at a corporation meeting considering the Harbor House budget, that Jones and his guests had misused the cooperative parking lot, and that Jones' stepdaughters were noisy. The trial court found some of these reasons unproven, and the others of minor significance. The defendants also maintained that the character of the building would be destroyed by having one family occupy apartments on the first and second floors connected for purposes of access only by the common stairway for the building as a whole. This ordinary everyday use of the two apartments would make the stairway a part of the two affected apartments in such a way as to interfere with its common use by the other tenants, who had an interest in the preservation of the building as a cooperative with six separate apartments. Relying principally on this structural reason, the trial court concluded that the defendants "had reasons to deny consent which were based on character, and the purposes and interests of their co-operative." The plaintiffs argue that this structural reason is insufficient in light of the Harbor House by-laws that specifically authorize the board of directors to permit an owner of one or more apartments "to combine all or any portions of any such apartments into one or any desired number of apartments; and . to incorporate other space in the building not covered by any proprietary lease, into one or more apartments covered by a proprietary lease . . . ." The by-laws do not, however, require combinations of apartments to be approved, particularly where impairment of common access would be likely to result from the combination. The trial court did not err in finding that the structural problem, arguably aggravated by the irritations associated with Jones' occupation of apartment 2, furnished a basis for denying consent that was reasonably rooted in the purposes and interests of the cooperative apartment living and that reasonably served to protect the financial and social integrity of the cooperative as a whole. II The determination that the defendants acted reasonably in the furtherance of reasonable cooperative purposes when they withheld their consent to the transfer of apartment 1A deprives the plaintiffs' other claims of error of their necessary factual underpinnings. These claims can therefore he discussed more succinctly. A The plaintiffs claim that the defendants as directors of Harbor House violated their statutory duty, under General Statutes §33-313 (d), to act "in good faith . . . and with such care as an ordinarily prudent person in a like position would use under similar circumstances." See generally Katz v. T. H. Canty & Co., 168 Conn. 201, 207, 362 A.2d 975 (1975); Osborne v. Locke Steel Chain Co., 153 Conn. 527, 534, 218 A.2d 526 (1966); Massoth v. Central Bus Corporation, 104 Conn. 683, 689, 134 A. 236 (1926); Mallory v. Mallory Wheeler Co., 61 Conn. 131, 139, 23 A. 708 (1891); Cross, Corpora tion Law in Connecticut (1972) § 6.8. They take no issue with the trial court's statement that a cooperative corporation like Harbor House does not have "the usual corporate aim of earning a profit and that its purposes are comfortable living in a comfortable environment." Nonetheless they argue that the trial court erred in concluding that the defendants had sustained their burden of proving that they had acted in good faith, because the defendants allegedly overlooked their duty to protect the plaintiffs' legitimate interests, as minority stockholders, in the purchase and sale of the apartment in question. The plaintiffs do not assert that their interests as minority stockholders, as a matter of law, had to be afforded an absolute priority over competing interests of other Harbor House stockholders. The vice which they claim requires reversal is that the defendants' "groundless justifications . . . which the trial court accepted as reasonable" cannot demonstrate good faith and are outweighed by the injury to the rights of the two minority shareholders. The trial court, however, in finding reasonable the defendants' withholding of consent, expressly found that their proffered justifications were not groundless within the context of a cooperative residential building. We have sustained that finding. Since on this appeal the plaintiffs have pointed to no other evidence indicative of a breach of the defendants' fiduciary obligations, the trial court's conclusion must stand. B The plaintiffs claim that the defendants tortionsly interfered with the plaintiffs' contract for the purchase of apartment 1A. A cause of action for tortious interference with a business expectancy requires proof "that the defendant was guilty of fraud, misrepresentation, intimidation or molestation; Busker v. United Illuminating Co., 156 Conn. 456, 461, 242 A.2d 708 [1968]; Skene v. Carayanis, 103 Conn. 708, 715, 131 A. 497 [1926]; or that the defendant acted maliciously. Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355 [1944]." Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-202, 374 A.2d 179 (1977). It is not essential to such a cause of action that the tort have resulted in an actual breach of contract, since even unenforceable promises, which the parties might voluntarily have performed, are entitled to be sheltered from wrongful interference. Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975); Goldman v. Feinberg, supra, 674; Skene v. Carayanis, supra, 714; Prosser, Torts (4th Ed.) § 129, p. 932. In the present case, the plaintiffs claim that the defendants maliciously and intentionally interfered with the plaintiffs' contract by their unjustified withholding of consent to the transfer and by their offer themselves to purchase apartment 1A. As we have noted, supra, the trial court did not err in finding that the defendants were justified, in light of the purposes of Harbor House as a cooperative residential building, in witholding their consent to the plaintiffs' contract of transfer. The finding that the defendants acted reasonably is fatal to the plaintiffs' contention that the with holding of consent was malicious. The plaintiffs were on notice that any contract of sale would have to contain a condition, as did their contract, that consent to transfer be obtained before the contract could be performed. With such a conditional contract, a reasonable disapproval of transfer does not constitute a tortious interference with contractual rights. The trial court further found that the defendants O'Connell and Cavanaugh themselves offered to purchase apartment 1A, at a time subsequent to the Harbor House disapproval of the transfer to Jones. While the trial court was in error in not expressly considering this aspect of the plaintiffs' claim of tortious interference, the claim nonetheless cannot succeed. Once it had become clear that the McNulty-Jones sale could not go forward, it was not improper for the defendants to make an offer motivated not by malice toward Jones but, as the court found, by a wish not to see McNulty financially harmed. This finding makes it clear that the plaintiffs have not sustained their burden of proving tortious interference. C The plaintiffs claim that the defendants acted with malice and with wanton disregard of the plaintiffs' contractual rights when the defendants denied consent to the transfer of apartment 1A. The plaintiffs argue that the defendants so repeatedly manifested their personal animus against the plaintiff Jones that the defendants had no just cause for denying their consent to the proposed transfer. This claim, too, cannot prevail in light of the trial court's findings of fact to the contrary. D The plaintiffs claim that they are entitled to recover attorney's fees as punitive damages for the defendants' malicious and intentional interference with their contract for the. sale of apartment 1A. Since we have concluded that the plaintiffs have not established the underlying claims for wrongful interference, this ancillary. claim need not be considered. E The plaintiffs claim that the defendant directors unlawfully engaged in a civil conspiracy to frustrate and prevent performance of the contract of sale for apartment 1A. An essential element of a civil action for conspiracy is that the alleged conspirators have combined "to do a criminal act or an unlawful act or a lawful act by criminal or unlawful means." Williams v. Maislen, 116 Conn. 433, 437, 165 A. 455 (1933). The illegal acts upon which the plaintiffs rely to establish a civil conspiracy are the very acts which we have already found not to be improper. In the absence of any independent basis for this claim, our discussion of the merits of the underlying claims is dispositive of this claim as well. There is no error. In this opinion the other judges concurred. At trial, the plaintiffs also pursued a count charging the defendants with violation of General Statutes § 47a-2a (now § 46a-64a) enacted in 1980, which forbids discrimination against families with children. No appeal has been taken from the trial court's determination that this statute should not be given retroactive effect. General Statutes §33-313 (d) provides: "A director shall perform his duties as a director, including his duties as a member of any committee of the board upon which he may serve, in good faith, in a manner he reasonably believes to be in the best interests of the corporation and with such care as an ordinarily prudent person in a like position would use under similar circumstances. In performing his duties, a director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, prepared or presented by (1) one or more oifieers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented, (2) counsel, public accountants or other persons as to matters which the director reasonably believes to be within sueh person's professional or expert competence, or (3) a committee of the board upon which he does not serve, duly designated in accordance with a provision of the certificate of incorporation or the bylaws, as to matters within its designated authority, which committee the director reasonably believes to merit confidence, but he shall not be considered to be acting in good faith if he has knowledge concerning the matter in question that causes such reliance to be unwarranted. A person who performs his duties in accordance with this subsection shall be presumed to have no liability by reason of being or having been a director of the corporation." The plaintiffs have not challenged in this court the finding of the trial court that they had failed to prove that the defendants were motivated by a desire to secure the McNulty apartment for themselves. The record contains no support for the plaintiffs' suggestion that McNulty would encounter the same disapproval from the defendants with regard to any prospective purchaser for her apartment.

The motion by the Connecticut Civil Liberties Union for leave to appear and file a brief as amicus curiae in the appeal from the Superior Court in Hartford County is granted.

The petition by the defendants Anthony P. Margonelli et al. for certification for appeal from the Court of Common Pleas in Hartford County is granted.

The "Petition for Review by Supreme Court" is dismissed.

MacDonald, J. The defendant, Waterbury Teachers Association, hereinafter referred to as W.T.A., has appealed from a judgment of the Superior Court granting the motion of the plaintiff, Waterbury Board of Education, hereinafter the Board, to vacate an arbitrator's award. The finding, which is not subject to correction, discloses the following: On December 29, 1969, the Board and W.T.A. entered into an "agreement, negotiated pursuant to the provisions of General Statutes § 10-153a — 10-153h, as amended through 1969, commonly known and hereinafter referred to as the Teacher Negotiation Act. The term of said agreement was for the period January 1, 1970, through December 31, 1972, and its relevant portions are either quoted or, where sufficiently clear, summarized in the footnote. Article XXIII of the agreement contained a grievance procedure pursuant to which Henry Capozzi, a Waterbury teacher, on October 18, 1971, filed a grievance claiming a violation of the Waterbury civil service rules and regulations and of the 1969 agreement with regard to the appointment, duties and salaries of the positions of Director of Adult Basic Education, hereinafter referred to as D.A.B.E., and Director of Manpower Development Training Act, hereinafter M.D.T.A. The remedy requested in the grievance was twofold: (a) the conducting of open competitive examinations for the two positions, in accordance with the provisions and procedures of the civil service rules and regulations; and (h) the negotiation of the duties and salaries for said positions to he conducted in accordance with the Teacher Negotiation Act. The grievance was submitted to arbitration and on July 19, 1972, the arbitrator conducted a hearing at which there were oral amendments by W.T.A. of the statement of grievance and by the Board of its answer to the grievance. The arbitrator precisely stated the amended W.T.A. position and the amended Board answer in the following language quoted from his "Analysis": "At the July 19th hearing the . . . [W.T.A.] amended the remedy requested to include the following: (1) Nullify the existing appointments to M.D.T.A. and D.A.B.E. (2) Negotiate job specifications and salaries under the teachers negotiation act. (3) Schedule examinations under Civil Service and refill both positions. (4a) . . . [If] the positions are found to be temporary and not administrative, then no administrative experience credit should be given for serving in the positions in any Civil Service examinations for other positions in the system. (4b) Reexamine for those positions where administrative experience credit was given for serving as either Director, M.D.T.A. or D.A.B.E. The Board's answer to the grievance is dated December 7, 1971, . . . and as amended at the July 19th hearing it reads in relevant part as follows: 'The position entitled Director of Adult Basie Education is fully funded by the State and Federal governments and therefore not under Civil Service Rules and Regulations. The position, Director of M.D.T.A. is fully funded by the State and or Federal Government and therefore, does not come under the Civil Service Rules and Regulations.' " On August 24, 1972, the arbitrator issued an award in the following language: "The Board of Education violated Article II, Section 1, of its current collective bargaining agreement when it declined to subject the positions of Director, M.D.T.A., and Director of Adult Basic Education, to Civil Service Rules and Regulations. For ninety days from the date of this award, the present incumbents in both positions shall continue to perform all their duties. During this ninety day period the Board is directed to advise the Director of Personnel of this award and seek an open, competitive examination under Civil Service Rules and Regulations for both positions. If there has been no determination as to who is the successful applicant for each position from Civil Service within ninety days of this award, the Board is directed to declare both positions vacant on the ninety-first day following this award, until such determination is forthcoming from Civil Service." Section 204 of the charter of the city of Waterbury provides, in part, that: "Any promotion from a teaching position to an administrative position shall be made under the provisions of this Charter amendment. For the purposes of this Charter amendment administrative positions shall include: Superintendent of Schools, Assistant Superintendent of Schools . The positions listed herein are examples of intent and shall not be considered as all-inclusive. Any other position in the educational system which requires more than fifty percent of the incumbent's time to be devoted to administrative duties shall be included in the classified service. If a question arises relative to the amount of time devoted in an administrative position, the question shall be referred to a committee of three for a decision. The Board of Education and the Civil Service Commission shall each designate one of their members to serve on such committee and these two persons together with the Mayor shall comprise said committee. The decision of the committee shall be final." Section 205 of the charter provides in part for both open competitive examinations and promotional examinations for vacancies in positions in the classified service. The positions of D.A.B.E. and M.D.T.A. are not specifically enumerated among the positions listed in § 204 of the charter. The Capozzi grievance never requested, as a remedy, that the charter-prescribed committee of three be called upon to determine whether the posi tions of D.A.B.E. and M.D.T.A. are "administrative positions" within the meaning of that phrase as defined in § 204 of the charter. The collective bargaining agreement between the parties was silent with regard to the two contested positions. Further, the agreement contained no reference to "open competitive examinations" even for positions covered by the agreement. The positions of D.A.B.E. and M.D.T.A. are not "positions covered by the budget of the Waterbury Board of Education" as they are "federally and/or state funded." The court granted the motion to vacate on the basis of having concluded (1) that the agreement is silent in regard to the specific positions of D.A.B.E. and M.D.T.A.; (2) that the positions of D.A.B.E. and M.D.T.A. are found not to be within the classified service of the city of Waterbury since these positions lack the permanency which is requisite in a classified position because they "are not funded by the city but are funded entirely by federal and/or state grants, and which grants do not extend beyond a one year period"; (3) that the agreement is silent as to any contractual obligation of the director of personnel to conduct open competitive examinations for these positions; (4) that the arbitrator in his award erred and exceeded his powers in holding that the positions of D.A.B.E. and M.D.T.A. were covered by the provisions of the agreement, and added to the terms and provisions of the agreement and thus exceeded his powers by ordering open competitive examinations for these positions; and (5) that the arbitrator's award contravened the public policy of the state of Connecticut. The basic assignment of error raises the question as to whether the trial court improperly concluded that the arbitrator exceeded his powers and thus rendered an invalid award. W.T.A. argues, and we agree, that an award rendered in conformity with the submission so as to constitute "a mutual, final and definite award upon the subject matter submitted" ; $ 52-418; should be confirmed. Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 319, 355 A.2d 279; Gary Excavating Co. v. North Haven, 160 Conn. 411, 279 A.2d 543. The court concluded that the arbitrator erred and exceeded his powers in making an award and in further directing conduct, that is, in directing the Board to advise the director of personnel to seek an open competitive examination under the civil service rules and regulations on the ground that such award and direction were beyond the submission. With this conclusion we disagree, for we find that the award clearly was within the framework of the submission. W.T.A. argues that the Board's failure to object to arbitration of the grievance, where, by the wording of the submission, an award in favor of W.T.A. would unmistakably violate that section of the agreement prohibiting the arbitrator from altering, amending or adding to the provisions of the agreement, constitutes a tacit agreement to be bound by the award despite its contravention of the contract and further operates as a waiver of any objections to arbitrability of the particular question. There is authority to support this waiver theory. 5 Am. Jur. 2d, Arbitration and Award, § 50. In dictum, in Niles-Bement-Pond Co. v. Amalgamated Local 405, 140 Conn. 32, 38, 97 A.2d 898, we said: "The arbitration clause further provides that no question relating to the functions reserved to the company, which in the preamble are set forth as managerial, shall be submitted to arbitration. The trial court, however, found that no question of the arbitrability of the dispute was raised before the arbitrator, and that clause must be considered as having been waived, if applicable at all." Arbitration is a contractual remedy designed to expedite, in an informal context, the resolution of disputes. This court has always respected the autonomy of the arbitration process and has been circumspect in its pronouncements with respect to that process. It is a remedy bargained for by the parties and one which they are free to negotiate with respect to the procedure to be employed. Where the parties have agreed to a procedure and have delineated' the authority of the arbitrator, they must be bound by those limits. However, this court's respect for the autonomy of the arbitration process dictates that we recognize the waiver principle.. The effect of this recognition is to place a burden upon the parties, in the situation where the question of arbitrability is not reserved to the arbitrator, to frame the submission carefully to avoid the problem that has arisen here, and, if necessary to protect their objections, to seek judicial reconciliation of the threshold questions prior to submitting to arbitration. W.T.A. argues that the scope of judicial review is limited to the provisions of § 52-418 of the General Statutes. As we recently stated, "[t]he scope of judicial review of an arbitration award is limited by statute and by the contractual agreement between the parties." Costello Construction Corporation v. Teamsters Local 559, supra, 318. In that decision we reaffirmed the principle which protects the integrity of arbitration awards, namely, that where the issue of arbitrability is committed to an arbitrator for determination, "the court is bound by the arbitrator's determination unless that determination clearly falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties' agreement." Thus, the mere conformity of the submission to the award does not foreclose the court from reviewing whether that award is in violation of the parties' agreement. This is not to say that the parties may not waive procedural limits. Our holding in Costello is not to be read to allow parties to forego objections to arbitration, gambling upon a favorable result and, when losing, to raise the procedural defects in a motion to vacate. In Costello the threshold question of arbitrability was clearly committed to the arbitrator's determination by the terms of the contract; thus, no question of waiver could arise in such a situation, since this court has held in the past that "[wjhether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also." Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531; Kantrowitz v. Perlman, 156 Conn. 224, 226, 227, 240 A.2d 891. Thus, where the question of arbitrability is committed to the arbitrator the court may, on a motion to vacate, entertain challenges to the award alleging disregard of the procedural limits in the parties' agreement with regard to arbitration as they apply to this issue. In any other instance, procedural irregularities will be deemed waived unless the party asserting them compels a prior judicial resolution of this issue. The same principle must be applied to the claim that the submission and award contravene the char ter provisions, previously enumerated, with regard to classified service. Here again, the Board acquiesced in the submission to the arbitrator and clearly waived this objection. Arbitration is a creature of contract. Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646. The continued autonomy of that process can be maintained only with a minimum of judicial intrusion. It is the responsibility of those employing arbitration to ensure that every right and limitation on the arbitration process for which they have contracted is preserved. For the reasons stated in this opinion, we conclude that the court was in error in granting the motion to vacate the award of the arbitrator. There is error, the judgment is set aside and the case is remanded with direction to render judgment confirming the award. In this opinion House, C. J., Shapiro and Loiselle, Js., concurred. Bogdanski, J., concurs in the result. The defendant has assigned as error the court's failure to find from its draft finding certain facts which it claims to be admitted or undisputed, the court's finding several facts without evidence, and further, its finding certain facts which the defendant contends are conclusions. The bulk of the defendant's attack upon the finding is ineffectively presented, as no appendix in support of the defendant's first two claims is included. Pawlowski v. Planning & Zoning Commission, 157 Conn. 598, 599, 253 A.2d 8; Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634. The claim that certain legal conclusions were inappropriately included among the findings of fact was not briefed and therefore is treated as abandoned. State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495; Maltbie, Conn. App. Proc. § 327. Two paragraphs of the defendant's draft finding, which the court did not expressly find in the language of the draft finding, are references to provisions of the collective bargaining agreement between the plaintiff and the defendant, which was an exhibit in the hearing on the motion to vacate and was made in toto part of the finding without having to be printed. The relevant portions of the 1969 agreement are either directly quoted or summarized as follows: Article I, § 6. "This agreement shall not limit or contravene the authority of the Board as provided by the General Statutes of Connecticut and the Charter of the City of Waterbury, except that the Board shall be deemed to have exercised its authority for the duration of this Agreement in the manner specified in the specific provisions of this Agreement . Accordingly, the provisions of this Agreement shall constitute Board policy for the duration of this Agreement or until changed by the mutual written consent of the parties hereto . No provisions of this Agreement shall have any retroactive effect or be in any way effective or binding prior to the effective date of this Agreement. All power and authority given the Board by State Statute and/or City Charter shall be fully reserved to the Board, except in those areas and to that extent as such are in conflict with a specific provision of this Agreement." Article II, § 1, recognized the W.T.A. as the sole bargaining representative for purposes of professional negotiations. Article VIII, § 1. "All openings for positions covered by the budget of the Waterbury Board of Education and listed in the administrative-supervisory salary schedule in Article IV hereof, and/or currently existing or newly created administrative or supervisory positions paying a salary differential and covered by the budget of the Waterbury Board of Education shall bo adequately publicized by posting." Article XX, $ 12. "This Agreement constitutes the sole and complete agreement between the parties and may only be amended by written agreement, similarly executed by the parties hereto." Article XX, § 4, 5, and Article XXVII detail a mechanism for a mutually agreed upon amendment to the agreement. Article XXIII, § 11, of the said agreement states, in part, that the arbitrator "shall be bound by and must comply with all the terms of this Agreement. He shall have no power to add to, delete from or modify in any way any of the provisions of this Agreement. . . ." Article XXIII, § 11, states further "that neither the arbitrator nor his award shall usurp the statutory authority of the Board of Education."

It appearing that the plaintiff in the above-entitled case has failed to prosecute his appeal from the Superior Court in Hartford 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 his brief on or before June 17, 1975.

Shea, J. In a trial to a jury the defendant was found guilty of sexual assault in the first degree. Ueneral Statutes § 53a-70 (a) (2). The defendant has appealed from the judgment claiming that the trial court erred (1) by adjudging the complainant competent to testify; and (2) by admitting evidence of a lineup identification of the defendant made by the complainant. We find no error. The complainant, who is mentally retarded, was thirty-two years old and was living alone in an apartment at the time of the assault. In the early evening of November 21, 1979, the defendant knocked on the door of her apartment and forced his way in when she opened the door. Once inside the defendant forced the complainant to engage in vaginal and oral intercourse and threatened to harm her further if she told the police of the incident. The next day the defendant was arrested and at a lineup was identified by the complainant as the assailant. The defendant assigns as his first claim of error the trial court's determination that the complainant was competent to testify. He contends that the trial court abused its discretion in finding the complainant competent because she lacked a demonstrable understanding of the obligation of an oath. In the alternative, the defendant charges the court erred as a matter of law because it failed to make a specific finding that the complainant understood the obligation of an oath. As this court has previously stated, the trial court is in a unique position to determine the competency of a witness. The ruling of the trial court on this issue will not be overturned unless the trial court clearly has abused its discretion or has erred as a matter of law. State v. Stankowski, 184 Conn. 121, 139, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1982); State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, 115 Conn. 672, 675, 163 A. 256 (1932); Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924). In determining the competency of a proposed witness the trial court should consider the capacity of the witness to receive correct sense impressions, to comprehend the facts to be developed, to recollect and narrate facts intelligently, and to appreciate the moral duty to tell the truth. State v. Stankowski, supra, 139; State v. Rodriguez, 180 Conn. 382, 389, 429 A.2d 919 (1980); State v. Siberon, supra, 458. Regarding the duty of truthfulness, this court has explained, "[t]he competent witness must possess some sense of moral responsibility and comprehend the purpose and character of an oath." (Citations omitted.) Ruocco v. Logiocco, 104 Conn. 585, 590, 134 A. 73 (1926). "An oath . . . signifies the undertaking of an obligation 'to speak the truth at a time when . . . testimony may deeply affect the rights and the character of individuals.' Chapman v. Gillet, 2 Conn. 40, 44 [1816]." State v. Grant, 176 Conn. 17, 24, 404 A.2d 873 (1978). At the competency hearing the judge heard testimony from three witnesses. The first witness was the complainant, who testified that she believed in God and had been raised in the Roman Catholic faith. She defined a lie as "not telling the truth" and knew that lying is prohibited by the Ten Commandments. Regarding her court testimony, she said that God would want her to "be honest" and to "tell the truth." The complainant's mother also testified. She believed her daughter understood her obligation as a witness to testify truthfully. She stated that the complainant would tell the truth unless fearful of reprisal or punishment and indicated that her daughter was somewhat fearful of the trial and specifically fearful of reprisal by the defendant. The court also heard testimony from a clinical psychologist, who personally had treated the complainant for about two years and at the time of trial supervised her treatment. This witness described the complainant as a mildly retarded individual with an IQ of approximately fifty-five, who functioned at a pre-adolescent mentality. He testified that the complainant knew right from wrong and could differentiate between the truth and a fantasy or a lie. According to the psychologist, rather than lie if she became fearful, the complainant would simply refrain from answering or try to avoid answering the question. The defendant contends that, despite this evidence demonstrating her appreciation of the oath, the complainant's inability to articulate what would occur if she lied on the stand should render her testimony incompetent. Knowledge of the consequences of perjury is not necessarily a prerequisite to competency; State v. Rodriguez, supra, 390; especially where the witness has demonstrated an understanding of a duty to tell the truth. We conclude the trial court had sufficient evidence before it to find that the witness understood the purpose of the oath. The defendant also claims that the trial court erred as a matter of law by failing to make a specific finding that the complainant understood the obligation of the oath. The defendant contends that such a finding is mandated by Ruocco v. Logiocco, supra. Ruocco, however, establishes no such requirement. In that ease the trial court admitted as competent the testimony of the complainant even though the record revealed that the witness, a severely retarded woman, had absolutely no comprehension of a duty to tell the truth or of the difference between right and wrong. In reversing the trial court, this court explained, "[i]t does not appear that the court was satisfied that [the witness] understood, in any way, the nature of an oath, the only statement of the court being, 'I think she knows enough to testify.' " Id., 591. In the case at bar, after hearing testimony regarding the ability of the witness to understand her obligation to tell the truth and to recollect coherently, the trial court ruled that the complainant was a "competent witness" and stated that it was convinced that the witness would decline to answer questions rather than fabricate testimony. This articulation was a sufficient finding that the complainant understood the obligation of the oath. Accordingly, we find no error in the court's determination that the complainant was competent to testify. As his second claim of error, the defendant charges that the trial court erred in admitting evidence of the complainant's identification of the defendant from a corporeal lineup the day after the assault. The defendant bases his claim on Practice Book §> 776 and 777, which govern the discovery of nontestimonial evidence from a defendant. Specifically, the defendant claims that under Practice Book § 776, the police were required to obtain a court order prior to including the defendant in the lineup. In the alternative, the defendant relies upon Practice Book § 777, which permits the court, in certain emergency circumstances and upon motion of the prosecuting authority, to order law enforcement officials to bring the defendant to a hearing on whether he must participate in a discovery procedure for obtaining nontestimonial evidence. Since neither of those procedures was followed, the defendant argues that the admission of the identification was reversible error. The scope of the rules under which the defendant claims protection is clearly defined and the defendant falls outside its ambit. "The rules for the superior court govern the practice and procedure in the superior court . in all criminal proceedings . . . ." (Emphasis added.) Practice Book § 1. This court has recognized that judicial criminal proceedings are initiated " 'by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " State v. Ledbetter, 185 Conn. 607, 609, 441 A.2d 595 (1981), quoting Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); State v. Packard, 184 Conn. 258, 267, 439 A.2d 983 (1981). Although this definition of criminal proceedings arose in oases where federal or state constitutional claims were being addressed, we have no reason to believe that the term "criminal proceedings," as used in the rules, was intended to have a broader scope. At the time of the adoption of Practice Book § 776 and 777, Kirby v. Illinois, supra, which restricted the right to counsel at a lineup to those against whom a criminal proceeding had already been formally commenced, had been decided. See Practice Book, 1963 (as amended to 1977) § 2187-88. This court has previously refused to advance the time when the right to counsel attaches beyond the requirements of Kirby. See State v. Ledbetter, supra, 609-10; State v. Packard, supra, 267-68. The rules govern discovery between the "prosecuting authority" and the "defendant," terms which identify the parties to a judicial criminal proceeding. A defendant is one who "is bound to appear and make answer or defend." Canaan v. Greenswoods Turnpike Co., 1 Conn. 1, 9 (1814). "A suspect is transformed into a defendant only after formal proceedings have been commenced against him . . . ." State v. Packard, supra, 272. Only after the initiation of criminal proceedings can it be said that "the government has committed itself to prosecute, and . . . that the adverse positions of government and defendant have solidified." Kirby v. Illinois, supra, 689. Since the defendant had not been arraigned or otherwise formally charged with a crime at the time of the lineup, he cannot avail himself of the protection of Practice Book § 776 and 777. See State v. Christian, 189 Conn. 35, 454 A.2d 262 (1983); cf. Wright v. Brown, 167 Conn. 464, 468, 356 A.2d 176 (1975). We recognize that the term "defendant" is used in some of the rules of criminal procedure to refer to one who has not been formally charged. See Practice Book § 654, 656-657, 782. In these instances the contexts make it clear that the reference is to prearraignment settings. Sections 776 and 777 involve the assertion of authority by the court upon motion or application of the prosecuting authority and our interpretation is that this procedure is only available after a criminal charge has been formally filed. There is no error. In this opinion the other judges concurred. General Statutes (Bev. to 1979) J 53a-70 (a) (2) provided as follows: "(a) A person is guilty of sexual assault in the first degree when sueh person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person whieh reasonably causes such person to fear physical injury to sueh person or a third person." The "(2)" was deleted in the 1981 revision of § 53a-70 (a). Since we have determined that the trial court did not err in admitting the testimony of the complainant we have disposed of the defendant's additional claim that the testimony of an expert witness rebutting the defense of mental disease was improperly admitted because it relied in part upon the complainant's testimony. " [Practice Book] Sec. 776. -authority Upon motion of the prosecuting authority, the judicial authority by order may direct a defendant to participate in a reasonably conducted procedure to obtain nontestimonial evidence under Sec. 775, if the judicial authority finds probable cause to believe that: (1) The evidence sought may be of material aid in determining whether the defendant committed the offense charged; and (2) The evidence sought cannot practicably be obtained from other sources." "[Practice Book] See. 777. -emergency procedure Upon application of the prosecuting authority, the judicial authority by order may direct a law enforcement officer to bring the defendant forthwith before the judicial authority for an immediate hearing on a motion made under See. 775, if an affidavit or testimony shows that there is probable cause to believe that the evidence sought will be altered, dissipated, or lost if not promptly obtained. Upon presentation of the defendant, the judicial authority shall inform him of his rights as specified in See. 636 and shall afford him reasonable opportunity to consult with an attorney before hearing the motion."