Datasets:

free-law

/

Caselaw_Access_Project_embeddings

like 4

Follow

FreeLaw 9

The plaintiffs' petition for certification for appeal from the Superior Court in the judicial district of Waterbary is denied by the court.

Longo, J. In these eases, the plaintiffs, Bruce R. Carpenter et al., have appealed from separate judgments of the Superior Court and the Court of Common Pleas sustaining the pleas in abatement by the defendants in each ease. The plaintiffs' appeals arise out of a common nucleus of facts and are sufficiently similar to permit their disposition in one opinion. No finding was requested or draft finding filed, but the facts necessary for a consideration of the issues raised are uncontroverted as summarized in the briefs. On August 19,1975, Robert S. Jones and Kenneth B. Tate, the defendants in both cases (hereinafter the defendants), submitted to the defendant planning and zoning commission of the town of Stonington, a defendant in the first case only (hereinafter the commission), an application for approval of a plan of subdivision of a tract of land in Stonington, in accordance with § 8-26 of the General Statutes. On October 21, 1975, the commission approved the application for subdivision, subject to the approval of the Stonington highway superintendent and the posting of a bond. No further action was taken by the commission. Because of the commission's inaction, the defendant Jones requested the commission to issue a certificate of approval of subdivision, pursuant to Gen7 eral Statutes § 8-26. When the demand was refused, Jones brought an action against the commission, claiming a writ of mandamus compelling the commission to issue a certificate of approval. In that case a stipulated judgment, approved by the Superior Court, stated that the subdivision was approved by reason of the commission's failure to act within the sixty-five day period provided in § 8-26. The conrt ordered the issuance of the certificate on January 28, 1976. On June 1, 1976, the plaintiffs in Carpenter v. Planning & Zoning Commission appealed to the Court of Common Pleas, alleging that, notwithstanding a contrary finding by the Superior Court in the mandamus action, the commission had decided to approve the defendants' subdivision at its meeting on October 21, 1975. The plaintiffs further alleged that (1) the commission acted arbitrarily and illegally; (2) the commission failed to publish notice of its decision; and (3) the plaintiffs were aggrieved by the action of the commission. On June 4, 1976, the plaintiffs in Carpenter v. Jones instituted an action in the Superior Court seeking injunctive relief against the subdivision of the defendants' land, claiming that the decision of the commission was void by reason of the commission's failure to publish the notice of its decision as required by General Statutes § 8-26. A plea in abatement was filed by. the individual defendants and by the commission in the first case and a similar plea was filed by the individual defendants in the second case, claiming that the respective courts lacked jurisdiction (1) to hear the appeal (Carpenter v. Planning & Zoning Commission) or (2) to grant injunctive relief (Carpenter v. Jones) because the plaintiffs had failed to prosecute an appeal within the time period prescribed by General Statutes § 8-28. More particularly, the defendants alleged that the commission had failed to act on the subdivision plan within sixty-five days as required by § 8-26 and that, as a result, "inferred approval" had followed. The sole remedy from such an inferred approval, the defendants asserted, was an appeal filed within twenty days after the expiration of the sixty-five day period provided in § 8-26 and, the plaintiffs having failed to appeal within that period, the appeal was abatable for lack of jurisdiction. The plaintiffs, in both eases, filed answers to the pleas in abatement in which they denied each of the defendants' allegations. On September 30, 1976, the Court of Common Pleas (Allen, J.), without taking evidence, sustained the pleas in abatement before it on the ground that the statutory appeal period had expired before the filing of the appeal by the plaintiffs. On April 12, 1977, the Superior Court (Santaniello, J.), without taking evidence, sustained the plea in abatement before it on the ground that the plaintiffs' sole remedy from the actions of the commission was by appeal to the Court of Common Pleas. From the judgments rendered on the pleas in abatement sustained the plaintiffs have appealed to this court, claiming that both trial courts erred in concluding (1) that the commission "failed to act" upon the subdivision application within the meaning of General Statutes § 8-26 and (2) that the plaintiffs' sole remedy was an appeal to the Court of Common Pleas. When a party wishes to plead to the jurisdiction of the court, he may do so either by a motion to erase or a plea in abatement. While a motion to erase admits all well pleaded facts and must be decided upon the face of the record alone; Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973); Brown v. Cato, 147 Conn. 418, 419,162 A.2d 175 (1960); a plea in abatement is the proper pleading when the ground of abatement is want of jurisdiction and the facts relied upon do not appear in the record. Practice Book, 1963, §93; Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 463, 378 A.2d 547 (1977); Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448, 352 A.2d 301 (1974). A plea in abatement requires a responsive pleading by the opposing party, but when facts alleged in the plea are put in issue by the responsive pleading, the burden of proving the facts alleged is upon the party making the plea and a failure to put on such evidence requires the court to overrule the plea. Murphy v. Dantowitz, 142 Conn. 320, 324, 114 A.2d 194 (1955). As may appear from the recitation of faets set forth earlier in this opinion, the litigation of the present cases pursued a somewhat complicated course. One fundamental controversy, however, underlies both appeals. The plaintiffs have claimed throughout that the commission did not "fail to act" upon the defendants' plan* of subdivision; that at the commission's meeting on October 21, 1975, the commission illegally approved the defendants' application, as that approval was subject to the posting of a bond and the approval of the highway superintendent, which conditions never materialized; and, finally, that the commission failed to publish notice of its decision as required by law and thus no appeal period ever commenced. The defendants have responded throughout, by way of pleas in abatement in both eases, that the commission's only authority under General Statutes § 8-26 is to "approve, modify and approve, or disapprove any subdivision . . . application . . . within sixty-five days after the submission thereof"; that the commission failed to take one of the enumerated actions within sixty-five days after the submission of the plan on August 19, 1975; that such inaction resulted in an inferred approval of the plan; and that the statutory right to take an appeal within twenty days of the expiration of the sixty-five day period following such an inferred approval had expired prior to the plaintiffs' appeal on June 1,1976. In order for the Court of Common Pleas, in Carpenter v. Planning & Zoning Commission, to sustain the defendants' pleas in abatement, the court had to find, as a matter of either fact or law, that there had been an inferred approval of the subdivision plan by reason of the commission's failure to act upon the plan within the sixty-five day period set forth in § 8-26, setting in motion a twenty day appeal period thereafter under § 8-28, which the plaintiffs failed to pursue. In Carpenter v. Jones the Superior Court had to find not only the above but also that the plaintiffs' sole remedy was an appeal under § 8-28 from the inferred approval, not a remedy by way of injunctive relief. Ordinarily, and particularly in the context of these appeals, a finding is necessary to test the conclusions of the trial court reached on a plea in abatement. Practice Book, 1978, § 3020; Leonard v. Zoning Board of Appeals, 151 Conn. 646, 648, 201 A.2d 466 (1964). No finding was requested or made in this case. "The absence of a finding does not necessarily preclude action by this court. We are, however, limited in our inquiry to the material facts which appear on the record." Robertson v. Robertson, 164 Conn. 140, 142, 318 A.2d 106 (1972); see Zachs v. Public Utilities Commission, 171 Conn. 387, 390, 370 A.2d 984 (1976). The record here consists of the pleadings, the judgment and the trial courts' memoranda of decision. The courts' memoranda do not establish facts and cannot take the place of a finding. "We may, however, consult the memo-rand [a] for a better understanding . of the court[s'] decision[s]." Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 235, 319 A.2d 386 (1973). The fact that both courts adjudged the issues raised by the pleas in abatement for the defendants "means that all material and disputed allegations in the pleadings were found for [them]." Tuite v. Tuite, 150 Conn. 345, 348, 189 A.2d 394 (1963); Williamson's Appeal, 123 Conn. 424, 427, 196 A. 770 (1937). This includes the defendants' allegations that "the commission failed to approve, modify and approve, or disapprove the subdivision plan within sixty-five days after its submission on August 19, 1975, as required by the General Statutes"; that "the failure of the commission to act on a subdivision application within sixty-five days after the date of submission is deemed to be an inferred approval thereof"; that "the sole remedy for parties 'aggrieved' by such an inferred approval is by appeal . . . within twenty days of the expiration of the sixty-five day period"; and that "the plaintiffs herein failed to file such an appeal." Since the trial courts, by their decisions, found these facts for the defendants, our inquiry is limited to a determination of whether the trial courts correctly applied the law relative to pleas in abatement to the above-found facts. Zachs v. Public Utilities Commission, supra, 391; Mendrochowicz v. Wolfe, 139 Conn. 506, 510, 95 A.2d 260 (1953). A review of the memorandum of decision in Carpenter v. Planning & Zoning Commission reveals that the Court of Common Pleas sustained the defendants' pleas in abatement on three grounds. First, the court, with the consent of all of the parties, took judicial notice of the minutes of the October 21, 1975 meeting of the commission. Those minutes indicated that the commission "approved" the defendants' subdivision plan, "subject to posting a bond and approval of the highway superintendent." Second, the court took judicial notice of the file in Carpenter v. Jones, Court of Common Pleas, New London County, No. 27048, April 21, 1976. Specifically, the court judicially noticed Judge N. Levine's memorandum of decision on the plea in abatement and motion to erase, wherein he concluded that the present plaintiffs either intentionally or negligently failed to prosecute under General Statutes § 8-28 a timely appeal from the nonaction of the commission. Third, the trial court took judicial notice of the findings of Judge J. Shea in the previous mandamus action filed by the defendants; Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977); and the stipulated judgment in that case stating that the subdivision was approved by reason of the commission's failure to act. On the basis of those facts not apparent "on the face of the record"; Practice Book, 1978, §3020; the defendants argued, and the court agreed, that the action taken by the commission in conditionally approving the subdivision plan was not an action enumerated in § 8-26, and that this action thus constituted a "failure to act" within the meaning of that statute. We agree. Where, as here, the defendants denominated their pleading a plea in abatement specifically to allow the court to consider matters not apparent on the face of the record, it was well within the power of the trial court to take judicial notice of court files of other suits between the same parties and of the minutes of the commission's meeting. Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940); see Guerriero v. Galasso, 144 Conn. 600, 605, 136 A.2d 497 (1957); Davis v. Maislen, 116 Conn. 375, 383-84, 165 A. 451 (1933); McCleave v. Flanagan Co., 115 Conn. 36, 38, 160 A. 305 (1932); see 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 106. Those files and the minutes of the meeting indicated that the commission approved, but only conditionally, the defendants' subdivision application. Reviewing the court files and the minutes, the Court of Common Pleas concluded that a "conditional approval" is not one of the possible courses of action, i.e., "approval, modification and approval, or disapproval," enumerated in General Statutes § 8-26, and thus, such conditional approval constituted a "failure to act" within that statute. The trial court was correct in this interpretation of § 8-26. Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission's approval of a subdivision plan; the statute merely provides for the commission to "approve, modify and approve, or disapprove" a subdivision application. Neither are we confronted with any local regulation of the town of Stonington which would authorize the imposition of conditions on a subdivision approval. We have held, albeit in a different context, that commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability. Stiles v. Town Council, 159 Conn. 212, 221, 268 A.2d 395 (1970). Similarly, where, as here, the approval is subject to a condition over which neither the commission nor the subdivision applicant has control, such action is not an "approval" within § 8-26. We hold that where a commission makes the approval of a plan of subdivision subject to a con dition, the fulfillment of which is within the control of neither the commission nor the applicant, such as approval by a coordinate municipal agency, the commission has "failed to act" within the intendment of General Statutes § 8-26 and 8-28, unless the coordinate agency approval appears to be a reasonable probability. Stiles v. Town Council, supra; Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247 (1962). As there is no indication in the record that the approval of the highway superintendent was a reasonable probability, the commission did not properly "approve, modify and approve, or disapprove" the defendants' subdivision application, and, thus, an "inferred approval" under § 8-26 took place sixty-five days after the date of the submission of the application. Since the plaintiffs' twenty-day appeal period had expired at the time their appeal was filed, the trial court did not err in determining that it lacked jurisdiction. In reaching this conclusion, we note that in Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), we stated that the rule enunci ated in Stiles did not strictly apply to instances of "exceptions and special nse permits," and further stated (p. 307) that "where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition." (Emphasis added.) Lurie, however, is inapplicable to the present case for a number of reasons. First, in Lurie, we construed a statute, General Statutes § 8-2, which expressly provided that the commission was authorized to impose conditions as a prerequisite to certain uses of lands. No such express statutory authority is found in § 8-26 or § 8-28. Second, in Lurie, the town of Westport had enacted zoning regulations, pursuant to the authority of § 8-2, which provided for design development districts and for their use upon the issuance of a special permit "subject to appropriate conditions and safeguards." Id., p. 299. No such local regulations permitting the imposition of conditions are in issue in the present case. Finally, the rule in Lurie is appropriately applicable in cases involving the conditional issuance of special permits for design development districts resulting in "floating zones." In this context, there exists statutory authority under § 8-2 for the imposition of conditions on the allowance of a special land use, as indicated by the 1959 amendment to § 8-2; Public Acts 1959, No. 614, § 2; broadening the power of a zoning commission by authorizing conditional issuance of special permits to allow for future, cooperative municipal agency action in the development of the "floating zone." See Summ v. Zoning Commission, 150 Conn. 79, 86, 186 A.2d 160 (1962). No such legislative history or intent authorizing the imposition of conditions is found in General Statutes § 8-26. We are of the view that the general rule against "conditional" commission action enunciated in Stiles controls the present case. The rule formulated in Lurie is an exception to Stiles and has no proper application in a case of subdivision approval. Our reading of § 8-26 in the above manner is consonant with the intent underlying this statute and with the interpretation given by other courts to similar statutes. First, § 8-26 provides for publication of notice of a commission's decision in the following manner: "Such notice shall be a simple statement that such application was approved, modified and approved, or disapproved, together with the date of such action." The wording of this sentence is particularly important and reinforces the obvious legislative intention that the only "decision" of the commission which the statute contemplated was "approval, modification and approval, or disapproval." A publication of notice of any other "deei sion" by the commission would not comport with the language of the statute. We reject the plaintiffs' contention that the statute was designed to create an inferred approval only where the commission is silent upon the submission of a subdivision plan. Such a reading would render nugatory the legislative intent to have published a notice of one of the commission's actions enumerated in § 8-26. The statutory requirement of publication of notice is a matter of substance and "of the essence of the thing to be accomplished, not a matter of mere procedure or convenience"; Akin v. Norwalk, 168 Conn. 68, 74, 301 A.2d 258 (1972); and should be strictly construed. Moreover, many courts have held, upon reviewing statutes similar to General Statutes § 8-26 and 8-28, that where, as here, a condition is imposed not authorized by the particular statute, the condition may not stand. Wine v. Council of City of Los Angeles, 177 Cal. App. 2d 157, 2 Cal. Rptr. 94 (1960); State ex rel. Strother v. Chase, 42 Mo. App. 343 (1890); Midtown Properties, Inc. v. Township of Madison, 68 N.J. Super. 197, 172 A.2d 40 (1961). This view is also shared by prominent commentators on the law of zoning and planning. See, e.g., 4 Anderson, American Law of Zoning (2d Ed.) § 23.24, p. 105; 2 Yokley, Zoning Law & Practice (3d Ed.) § 12-7, p. 49. This rule is particularly appropriate in cases where the condition imposed cannot be fulfilled by the action of the applicant, but must wait for an undetermined time for the approval of a coordinate municipal agency. The legislative purpose behind General Statutes § 8-26 and 8-28, to secure, in the public interest, by means of rather brief appeal time periods, a speedy determination of the issues involved; Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462 (1940); will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal. Cf. Daly v. Board of Police Commissioners, 133 Conn. 716, 719, 54 A.2d 501 (1947). In sum, we hold that an "approval" subject to a condition, the fulfillment of which is not within the control of the applicant, or in which an approval by a coordinate agency is not shown to be a reasonable probability, is not an "approval" within § 8-26 of the General Statutes, and such an approval is thus a "failure to act" within the meaning of that statute. In view of onr discussion thus far, little remains to be said concerning the appeal in Carpenter v. Jones, in which the plaintiffs sought equitable relief in the form of an injunction restraining the defendants from subdividing their land. The Superior Court sustained the defendants' plea in abatement on the ground that the plaintiffs' sole remedy from the actions of the commission was by appeal under G-eneral Statutes § 8-28. In sustaining the plea in abatement, the court took into account the various court files mentioned earlier in this opinion, and determined that an inferred approval of the subdivision application had taken place, setting in motion an appeal period which the plaintiffs failed to pursue; thus, injunctive relief was barred. We agree. We have frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963); State Water Commission v. Norwich, 141 Conn. 442, 447, 107 A.2d 270 (1954); McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953); cf. Connecticut Light & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977); Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 410, 279 A.2d 540 (1971). The only relevant exception to this rule is where the administrative action is void. Smith v. F. W. Woolworth Co., 142 Conn. 88, 93, 111 A.2d 552 (1955). As we have rejected the plaintiffs' argument that the commission's action was void and have held that it was a "failure to act," the Smith case is inapposite. We are of the opinion that the Superior Court did not err in sustaining the defendants' plea in abatement; a failure to pursue a statutory remedy of appeal "cannot be the cornerstone of an action in equity." Boucher Agency, Inc. v. Zimmer, supra, 410. There is no error. In this opinion Cotter, C. J., Loiselle and Peters, Js., concur red. The plaintiffs in the present aetion attempted to intervene as parties defendant in the mandamus action in the Superior Court dated January 14, 1976; Jones v. Ricker, Superior Court, New London County, No. 47180; alleging that they were owners and occupants of nearby premises whose property would be specially and adversely affected by the development of the proposed subdivision and whose right of appeal prescribed by § 8-28 of the General Statutes would be denied by the issuance of the certificate of approval sought in the mandamus aetion. The plaintiffs' motion was denied, and their appeal to this court was dismissed. Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977). Significantly, in that case we said that "[w]hat relief the movants might have in a proper independent aetion is not for this court to determine." Id., 576. The present appeal involves that "independent action." Following the Superior Court's action ordering the issuance of a certificate of approval, the plaintiffs heroin instituted a flurry of actions in the Superior Court and the Court of Common Pleas seeking to overturn the subdivision approval and/or the granting of the writ of mandamus. Most notably, the plaintiffs sought to enjoin Jones and Tate from subdividing their land by an action in the Court of Common Pleas dated April 21, 1976. Carpenter v. Jones, Court of Common Pleas, New London County, No. 27048. In a second count in that action, the plaintiffs purported to appeal from the original "approval" or "official actions" of the commission relative to the subdivision, praying for an order declaring the commission's action null and void. On June 3, 1976, the court (A. Levine, J.) sustained the defendants' plea in abatement on the ground that the plaintiffs' remedy was by way of appeal from the subdivision approval by the commission under General Statutes § 8-28, that the plaintiffs had failed to prosecute an appeal under § 8-28, and, thus, injunctive relief was barred. The significance of that ruling will be noted in this opinion. "[General Statutes] Sec. 8-28. appeals. . In those situations wheré the approval of the planning commission must be inferred because of the failure of the commission to act on an application, any person aggrieved by such approval may appeal therefrom within twenty days after the expiration of the sixty-five-day period prescribed in section 8-26 for action by the commission. . . ." General Statutes §8-26 provides, in part, that "[t]he failure of the commission to aet . [on an application] shall be considered as an approval, and a certificate to that effect shall be issued . . . upon demand." As of July 1, 1978, pleas in abatement and motions to erase are abolished. In place thereof, the motion to dismiss is the proper vehicle for claiming any lack of jurisdiction in the trial court. Practice Book, 1978, § 3110. Although the scope of our inquiry is limited by the absence of a finding, a sufficient record is presented for the determination of these appeals. We thus decline the defendants' invitation to refrain from deciding these appeals; see St. Pierre v. St. Pierre, 172 Conn. 11, 12, 372 A.2d 129 (1976) ; on the ground that no basis exists for determining the merits of the plaintiffs' claims. We do not construe the imposition of conditions on a commission's "approval" of a subdivision plan to be an "approval and modification" within § 8-26 if those conditions cannot be fulfilled by the commission or subdivision applicant within a reasonable time. In Crescent Development Corporation v. Planning Commission, 148 Conn. 145, 168 A.2d 547 (1961), we approved the imposition of a condition on a subdivision approval; the condition, however — the building of a road by the subdivider — was within the control of the subdivider. No action by a coordinate agency was neeessary. Similarly, in Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 368 A.2d 24 (1976), a condition imposed on a subdivision approval required the construction, by the subdivision applicant, of a road to connect with existing publie roads. In both eases, it was reasonably probable that the conditions would be fulfilled. Moreover, both cases involved local zoning regulations specifically requiring that proposed roads connect to existing roads, a factor not present in the instant ease. We note in passing that the rule in Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), applied in that case to exceptions and special permits, has not, since that case, over been applied by this court to a ease not involving a special permit o,r exception. On the other hand, the rule in Stiles v. Town Council, 159 Conn. 212, 268 A.2,d 395 (1970), was followed and appEed twice in the year following the decision in Iju/rie, in one instance, without even the citation of Lurie. See Wilson v. Planning Zoning Commission, 162 Conn. 19, 25, 291 A.2d 230 (1971) (municipal action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the neeessary action appears to be a probability); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 50, 301 A.2d 244 (1972). In light of this, we view Stiles not only as surviving Lurie, but as a statement of the present law concerning commission action subject to conditions not within the control of an applicant or the commission. The plaintiffs point out that in Farr v. Eisen, 171 Conn. 512, 370 A.2d 1024 (1976), this court held that a failure to publish notice of a decision under § 8-26 and 8-28 was not equivalent to a "failure to act" within that statute, and argue that Farr dictates that, similarly, in the present case, although a conditional approval may be an illegal approval, it is nonetheless "action" within the statute. We disagree. In the present case, we have decided that the commission's "conditional approval" was equivalent to a "failure to act" under the statutes. In Farr, there was no question that the commission took "action" by denying the subdivision application, and the only issue presented in Farr was whether a subsequent failure to publish notice of decision amounted to a "failure to aet" within § 8-26. We do not reach that issue in the present ease, as we have determined that, at the outset, the commission's conditional approval was tantamount to a "failure to act." In a situation such as that posed in the present cases, if approval of a subdivision must await the approval of another municipal agency, a commission may avoid the result of an "inferred approval" by securing from the applicant an extension of time within which it must act under § 8-26. See Metropolitan Homes, Inc. v. Town Planning & Zoning Commission, 152 Conn. 7, 13-14, 202 A.2d 241 (1964). In the alternative, if an approval involves conditions not within the control of an applicant, a commission may avoid an "inferred approval" by disapproving the plan of subdivision if the condition is not met within the statutory time periods.

Per Curiam. After a jury trial the defendant was found guilty of robbery in the second degree. From a judgment rendered on the verdict, he appealed. The sole claim of error is that the court erred in allowing relevant evidence which could have been presented in the state's case in chief to be presented in rebuttal even though that evidence did contradict the defendant's testimony and evidence presented in his defense. The defendant was charged with robbery of money from a bakery in Fairfield on September 20,1974, at about 6:30 p.m. His defense was an alibi. He and his niece testified that he was in the apartment where the niece lived between 5:30 p.m. and 8 p.m. on that day. On rebuttal, the state presented the testimony of a witness that the defendant was in a store in the vicinity of the bakery at approximately 6:10 p.m. that same day. The state had, at the commencement of the trial, listed this witness' name as a witness for the state and one available for testimony. The defendant claims that the court abused its discretion in allowing this rebuttal testimony. The defendant has not sustained his burden of establishing prejudice and nowhere in the record or in his brief is it shown that the state had advance knowledge that the defendant would claim an alibi. Further, there is nothing in the record or the briefs to indicate deliberate withholding of this evidence. As stated by the state's attorney when objection was made, it was doubtful whether the witness' statement would have been relevant prior to the introduction of the alibi defense. The matter of allowing evidence in chief on rebuttal is within the sound discretion of the trial court. State v. Fine, 159 Conn. 296, 301, 268 A.2d 649; State v. Lenihan, 151 Conn. 552, 556, 200 A.2d 476; State v. Leopold, 110 Conn. 55, 67, 147 A. 118; State v. Buonomo, 88 Conn. 177, 188, 90 A. 225. There is no error.

The plaintiff's "Motion for Permission to Amend Recognizance" is granted by the court.

Arthur H. Healey, J. On February 12, 1977, a fire broke out in a building located on Highland Avenue in Waterbury. The building was owned by Louis Cipriano and was under a lease to the defendant for his exclusive use as a pizza restaurant. The premises suffered extensive damages rendering them unfit for occupancy. In an information filed in April, 1977, the defendant was accused of starting this fire and was charged with arson in the second degree in violation of General Statutes § 53a-112. On June 21, 1977, the defendant filed a motion to suppress all evidence, and related testimony, obtained in a search of the premises by police and fire officers on February 23, 1977. As the basis for his motion, the defendant claimed that the search was conducted without a warrant and without his consent. After an evidentiary hearing on the matter, the court, Maiocco, J., granted the defendant's motion. Thereafter, the defendant filed a motion to dismiss the information against him with prejudice which was granted by the court, Henebry, J., on November 12, 1980. On the same day, the state filed a request, pursuant to General Statutes § 54-96, for permission to appeal the judgment, which was granted by the court. To assess the parties' claims properly, it is necessary to delineate certain events that led to the search of the leased premises on February 23, 1977, and to examine the business relationship between the defendant and his landlord, Cipriano, as that relationship was affected by the events occurring between the time of the fire and the search. The defendant was assigned the lease for the premises on April 15, 1976, with a term that ran until October 31, 1978. The defendant was current in his rent through the month of February, 1977. Furthermore, the court found that the lease had not been terminated at the time the officers conducted the warrantless search. There are four clauses in the lease that are relevant to this appeal. The third clause provides, in part, that "if the leased premises shall be deserted or vacated, the Landlord or its agents shall have the right to and may enter the said premises as the agent of the Tenant." The tenth clause gives the landlord the right to enter the premises at reasonable hours to inspect and to make any necessary repairs on the premises. The eleventh clause deals with the parties' rights in the event the premises were destroyed by fire, explosion or otherwise. It provides as follows: "In the event of the destruction of the demised premises or the building containing the said premises by fire, explosion, the elements or otherwise during the term hereby created, or previous thereto, or such partial destruction thereof as to render the premises wholly untenantable or unfit for occupancy, or should the demised premises be so badly injured that the same cannot be repaired within ninety days from the happening of such injury, then and in such case the term hereby created shall, at the option of the Landlord, cease and become null and void from the date of such damage or destruction and the Tenant shall immediately surrender said premises and all the Tenant's interest therein to the Landlord, and shall pay rent only to the time of such surrender, in which event the Landlord may re-enter and re-possess the premises thus discharged from this lease and may remove all parties therefrom. Should the demised premises be rendered untenantable and unfit for occupancy, but yet be repairable within ninety days from the happening of said injury, the Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after said repairs shall be completed. But if the premises shall be so slightly injured as not to be rendered untenantable and unfit for occupancy, then the Landlord agrees to repair the same with reasonable promptness and in that case the rent accrued and accruing shall not cease or determine. The Tenant shall immediately notify the Landlord in case of fire or other damage to the premises." Finally, the twenty-fourth clause provides that "[t]he foregoing rights and remedies are not intended to be exclusive but as additional to all the rights and remedies the Landlord would otherwise have by law." The significance of these clauses will be addressed while examining the substantive issues raised by this appeal. As previously noted, the fire occurred on February 12,1977. The defendant testified at the hearing on the motion to suppress that he first found out about the fire on Sunday, February 13, 1977, from both the landlord and his own daughter. He did not go into the restaurant on that day, but he did call the fire marshal to make an appointment for the marshal to inspect the premises the following day. Meanwhile, on Sunday, Cipriano had someone secure the building by boarding it up. He also testified that he had a new door put on the side of the building. In response to a question asking him why he hadn't replaced the door, the defendant stated: "I didn't know that he had put the door and I didn't know whether he wanted to throw me out." On Monday, February 14, two members of the Waterbury fire marshal's office inspected the premises. There was conflicting testimony as to who let them in; however, it was the defendant who showed them around. Nothing was removed on that day, but the marshals were able to determine the place of origin of the fire. The defendant resecured the premises when they left. The defendant at one point testified that he did not tell them they could not reenter the building because "I can't stop anyone." The defendant visited the premises on at least two other occasions. Between February 16 and February 18, he met a representative of his insurance company, and on February 22, he met an inspector from the Waterbury health department. The defendant was concerned with the restaurant goods and equipment that remained in the premises. After each visit, the defendant resecured the premises. The defendant and Cipriano were in the building together on two or three occasions. One of the occasions was when the defendant was with his insurance representative. The defendant asked Cipriano to leave because he was making too much noise. Cipriano thereupon left. On no other occasion did either the defendant or Cipriano ask the other to leave. No formal action was taken on the part of the defendant or Cipriano to terminate the lease in accordance with its terms in the event of a fire. While the defendant testified that he did not really understand the lease, he felt that the lease was broken by the fire but that he was entitled to stay in the premises until the end of February because his rent was paid. Cipriano, on the other hand, requested that the defendant pay the rent for March. Both Cipriano and the defendant cleaned out the premises. The defendant testified that although he felt that the lease was broken, it was also his responsibility to "repair" the place. He did not, however, take any action to make any substantial repairs because he was waiting for his insurance claim to be settled. The search which was the basis for the defendant's motion to suppress occurred on February 23, 1977, eleven days after the fire. Officers of the Waterbury police department, the Waterbury fire department, and the state police department were granted access to the premises hy Cipriano. Neither a search warrant for the premises nor the permission of the defendant was sought by the officers. The police knew the defendant operated the restaurant and considered him to be a suspect. The sole purpose of the entry was to search for and obtain evidence of the arson. Upon gaining entry, the officers checked the air for hydrocarbons and removed a small piece of charred carpeting for testing. The rug was installed by Cipriano. In his motion, the defendant sought to suppress the test results on both pieces of evidence, as well as all evidence based upon the search of the premises and seizure of the evidence. As a result of the fire Cipriano collected $21,000 from his insurance company for damage to the building. At the hearing in January, 1979, the defendant said that he had not collected any money on his insurance claim. Subsequent to the fire, the defendant never reoccupied the premises or reopened the premises. After remaining vacant for seven months, the building was sold by Cipriano. In making its claim that the trial court erred in granting the motion to suppress, the state essentially argues (1) that the defendant had no reasonable expectation of privacy in the premises searched that was fatally offended by the search, and (2) that the landlord Cipriano clearly had the authority to consent to the entry and the search by the officers whether such authority be denominated actual authority or apparent authority, thus requiring the conclusion that the search was "reasonable" under the fourth amendment. The issue of whether a "search" comes within the protection of the fourth amendment involves a twofold requirement under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). The first is whether the person who is the focus of the inquiry has "exhibited an actual (subjective) expectation of privacy and, second . . . [whether] the expectation be one that society is prepared to recognize as 'reasonable.' " Katz v. United States, supra, 361. Where it is established that law enforcement officials have encroached upon a defendant's reasonable expectation of privacy, and the trial court explicitly found that this had in fact taken place, then the focus of inquiry should move to the "reasonableness" of the search. That is, where there was a warrant, was it accomplished pursuant to the warrant and where there is no warrant, was it justified and thus constitutional because it was within an exception to the warrant requirement? The state does not disagree that the United States Supreme Court has made it clear that "a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.' " Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Katz v. United States, supra, 357; Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); see also Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889, 11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303 (1964); State v. Tully, 166 Conn. 126, 133, 348 A.2d 603 (1974); People v. Adams, 53 N.Y.2d 1, 7, 422 N.E.2d 537 (1981). Two recognized exceptions to the warrant requirement are where searches have been undertaken pursuant to (1) "exigent circumstances"; see, e.g., Mincey v. Arizona, 437 U.S. 385, 392-94, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Terry v. Ohio, 392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Runkles, 174 Conn. 405, 412, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); and (2) consent. See, e.g., Davis v. United States, 328 U.S. 582, 593-94, 66 S. Ct. 1256, 90 L. Ed. 1453, reh. denied, 329 U.S. 824, 67 S. Ct. 107, 91 L. Ed. 700 (1946); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). The exceptions "have been jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958); see State v. Krause, 163 Conn. 76, 80, 301 A.2d 234 (1972). The burden of proof is upon the state to show that an exception exists. Coolidge v. New Hampshire, supra, 455; see McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct. 191, 98 L. Ed. 153 (1948); Dotson v. Warden, supra, 618; People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867, cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975). The Connecticut and United States constitutions "equally and conjointly prohibit unreasonable warrantless searches of private property. U.S. Const, amends. IV and XIV, § 1, Conn. Const, art. I, § 7." Dotson v. Warden, supra. Before we analyze the issues raised by this appeal, it should be recognized that our power to upset the findings of the trial court is limited. "We have stated our function here on many occasions. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must 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. That is the standard and scope of this court's judicial review of decisions of the trial court. Beyond that, we will not go." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The appropriate starting point for fourth amendment analysis here is, thus, the defendant's reasonable expectation of privacy. Katz recognized the importance of the individual's expectations of privacy when it explained: "For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations omitted.] But what he seeks to preserve as private even in an area accessible to the public, may be constitutionally protected." Katz v. United States, supra, 351-52. The requisites for judicial recognition of a reasonable expectation of privacy that are to be given fourth amendment protection are (1) that the person involved exhibit an actual (subjective) expectation of privacy, and (2) that the expectation was one to be recognized (by society) as "reasonable." Katz v. United States, supra, 361. A reasonable expectation of privacy is one that is "legitimate." See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); see also United States v. Salvucci, 448 U.S. 83, 91-92, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Rakas also held that an illegal search only violates the rights of those who have "a legitimate expectation of privacy in the invaded place." (Emphasis added.) Rakas v. Illinois, supra, 143. A person, of course, can have a legally sufficient interest in a place other than his own home so that the fourth amendment protects him from unreasonable governmental intrusion into that place. Jones v. United States, 362 U.S. 257, 263, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); see Rakas v. Illinois, supra, 142-43. This also applies to commercial premises. See Marshall v. Barlow's, Inc., 436 U.S. 307, 311-13, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). The determination of whether a person has exhibited a subjective expectation of privacy requires a detached evaluation of the facts and circumstances of the particular case. See United States v. Brock, 667 F.2d 1311, 1320 n.8 (9th Cir. 1982); United States v. Sledge, 650 F.2d 1075, 1077 (9th Cir. 1981). As we have indicated, the trial court was presented with conflicting evidence at the hearing on the motion to suppress. It is the function of the trier to determine the credibility of witnesses and the weight to be given their testimony. State v. Rucker, 177 Conn. 370, 378, 418 A.2d 55 (1979); State v. Chisolm, 162 Conn. 631, 632, 295 A.2d 563 (1972). There was ample evidence to support the trial court's determination that the defendant had a reasonable expectation of privacy "in the burned out and boarded up building" as of February 23, 1977. The court properly found, on this issue as well as on that of consent, that the defendant had not abandoned the leased premises. "Abandonment is a question of fact. . It implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances. . . ." Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). On those occasions, between February 14 and February 23, when the defendant left the premises he secured them. He not only said that it was his intention to stay, but he always secured the site upon leaving because "I had my merchandise in there." The defendant said that he had damaged personal property inside this building which he claimed was worth approximately $6750. He said he was keeping the premises because he intended to reopen the business and he wanted to "fix it so I could work." No formal action was taken by either the defendant or the landlord to terminate the lease according to its terms in the event of a fire. The landlord did not ask him to leave and turn the premises over to him. His rent was paid through the end of February and so he felt he had the right to remain there until at least that time "because of my rent paid." He answered "yes" to the question: "Was it your intention to keep people out of the premises unless they were there with your premission?" There was thus evidence before the court that, if believed, actually demonstrated the defendant's subjective expectation of privacy. Inasmuch as the trial court found that the defendant had a reasonable expectation of privacy, it follows that it also found that such an expectation in this case was one that "society is prepared to recognize as 'reasonable' " under Katz and its progeny. We agree that the court could legitimately conclude that this expectation was reasonable under the circumstances of this case. The court's determination that the defendant had the requisite expectation of privacy is not clearly erroneous and must stand. See State v. Ostroski, 186 Conn. 287, 294, 440 A.2d 984 (1982); Pandolphe's Auto Parts, Inc. v. Manchester, supra, 221-22; Practice Book § 3060D. We turn now to the state's claim that the court erred in finding that the defendant's landlord, Cipriano, did not have the right to consent to the warrantless search of the leased premises. "In Schneckloth v. Bustamonte, 412 U.S. 218 [93 S. Ct. 2041, 36 L. Ed. 2d 854] (1973), the Court reaffirmed the principle that the search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment." United States v. Matlock, 415 U.S. 164, 165-66, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). The general rule of law is that a landlord may not consent to a search of the tenant's premises and this is true even where the landlord has some right to enter for purposes of inspecting and cleaning. Chapman v. United States, 365 U.S. 610, 616-17, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961). Professor LaFave, in stating that the general rule is that a lessor cannot give consent to a warrantless search of the premises occupied by his tenant, says: "The rule is not otherwise merely because the lessor has by express agreement or by implication reserved the right to enter for some special and limited purpose." 2 LaFave, Search and Seizure § 8.5(a), p. 739. The state has the burden of proof on the issue of consent and that burden is not discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); see United States v. Mendenhall, 446 U.S. 544, 557, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980). Consent is a question of fact to be evaluated under the totality of all the circumstances. Schneckloth v. Bustamonte, supra, 227; Dotson v. Warden, supra, 619. As a question of fact, it is to be decided by the trial court on the evidence it deems credible together with the reasonable inferences to be drawn from that evidence and its conclusions will stand unless they are clearly erroneous. Id. The state recognizes that if it is found that the defendant had a reasonable expectation of privacy, it must prove that the consenting party "possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, supra, 171; Dotson v. Warden, supra, 621. The state maintains in its brief that, by operation of the lease and the fact of the fire, the landlord had "a right to possession superior to that of the lessee." This claim goes as follows: construing the facts most favorably to the defendant the premises were untenantable but repairable within ninety days thereby implicating that portion of the lease (article eleventh) which provides: " [T]he Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after said repairs shall be completed." The state's claim continues, arguing that "obviously" the defendant was no longer in "exclusive possession" after the fire and he was not required to pay rent. Under the lease, the landlord was given, it continues, "an absolute right to temporary possession to perform certain activities" such as "the necessity to gut the premises to make necessary repairs . . . [the] need to bring in workmen, subcontractors, etc. ." Asserting that the "landlord's interest and peculiar relationship with the object of the search was obvious and unique," the state submits that this was not a "general exploration of the premises" of a tenant such as is generally condemned; but rather it was for an air sample and the removal of charred rug for the "limited purpose of determining the cause of the fire which had recently done so much damage to his property." Therefore, the state contends that "[h]is consent to the entry of those public officials charged with determining the cause of fires would appear to be the most reasonable and appropriate course of action in light of all the circumstances and the leases." The defendant argues that this warrantless search of his nonabandoned leased business premises eleven days after the fire was extinguished violates his fourth amendment protection against, unreasonable searches and seizures. He also argues that this search, which was for evidence of a crime, does not fall within any exception to the warrant requirement of the fourth amendment and especially that recognized where a proper third party may give a valid consent to search. "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated . . , property rights are neither the beginning nor the end of [this court's] inquiry." United States v. Salvucci, 448 U.S. 83, 91, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). "The test applicable to third-party consent requires the state to prove that the consenting party 'possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Matlock (p. 171) goes on to elaborate in a footnote on what constitutes 'common authority.' 'Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant his torical and legal refinements, see Chapman v. United States, 365 U.S. 610 [81 S. Ct. 776, 5 L. Ed. 2d 828] (1961) (landlord could not validly consent to the search of a house he had rented to a another), Stoner v. California, 376 U.S. 483 [84 S. Ct. 889, 11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303] (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.' " (Emphasis in original.) Dotson v. Warden, supra, 622. Adopting a functional approach to this fourth amendment issue, the consent exception reflects a fair accommodation between constitutional requirements and the encouragement of effective law enforcement with the resolution to be made under the facts and circumstances of each case. To begin with, the landlord clearly did not, as the state asserts, have, under the facts and the lease, a "superior" right of possession. The trial court made no finding that the premises were unten-antable and repairable within or without a ninety day period. The landlord did not repair the prem ises within ninety days. The defendant and he both cleaned them. Although the rent was paid through February, the landlord, in contradiction to the lease provision upon which the state relies, not only demanded the rent for March but never pursued his option to "repair" by February 23. The landlord never asked the defendant to surrender the premises. Thus, in the circumstances of this case in ending the lease, the landlord's right to possession was hardly "superior" to that of the defendant. A fair reading of the trial court's memorandum discloses that it concluded that the landlord's consent on either the "common authority" or "other sufficient relationship" criteria of Matlock had not been proven by the state. We agree. The landlord took no action to terminate the defendant's possession under the lease; he permitted the defendant's property to remain and demanded another month's rent. He did not demonstrate that he curtailed the defendant's access; he even left the leased premises upon the defendant's asking him to do so several days prior to February 23. It is true that the landlord caused the premises to be boarded up initially and entered the premises on several occasions after the fire. There was, however, no evidence that he exercised his "absolute right to temporary possession" as the state suggests concerning "the necessity to gut the premises to make necessary repairs and the corollary need to bring in workmen, sub-contractors, etc . . . ." The defendant had not abandoned his possession. In addition, the court properly found that any right to inspect under the lease could not be enlarged here to authorize consent to officers to enter to gather evidence of a crime by the defendant. 2 LaFave, Search and Seizure § 8.5(a), p. 739; see Chapman v. United States, supra, 616; State v. Hodges, 287 N.W.2d 413 (Minn. 1980). The defendant was not contacted concerning giving any consent to this search. He lived in Waterbury and the police and fire officials involved knew he was there. He had not fled nor is it claimed he was likely to do so and this was eleven days after the fire. See Chapman v. United States, supra, 615. Only one day prior to the search, the landlord had seen the defendant when the latter had brought a check for property taxes to the landlord's home. The landlord knew his consent was not for a mere civil or administrative search, but for evidence of a crime; he said "they wanted to take evidence." It is true that a "co-owner" has been said to have the authority to permit the search of a jointly held possession. Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Jackson v. Official Representatives & Employees of Los Angeles Police Department, 487 F.2d 885, 886 (9th Cir. 1973). This case, however, is not one of co-ownership. Nor is it one of joint or mutual use of that quality that pushes fourth amendment protections into the exception of consent. The state next argues that even if the landlord had no actual authority to consent, the search was still reasonable under the fourth amendment because there was "apparent authority" for the search. It goes on to claim that, in measuring the facts of this case against the apparent authority doctrine, one must conclude that the officers acted in the "reasonable and good faith belief" that consent had been obtained from the proper party. The defendant claims that the record does not contain facts sufficient to justify the search on the doctrine of "apparent authority" which, in turn, would be necessary to support the state's claim that the officers' action based on that authority establishes a reasonable good faith belief by them that validates the search. In pressing its line of argument the state points to the following circumstances: Cipriano owned the building, the premises had been "gutted" by fire, he (and not the defendant) had secured the premises after the fire and he opened the premises for the fire marshal on the Monday after the fire. It also claims that the defendant's attorney called the landlord to gain access to the building. The defendant argues that the police were not at all mistaken as to the essential facts. They knew that Cipriano owned the premises but that it was currently occupied by the defendant. Detective Lieutenant Solomita was one of the two officers dispatched to Cipriano's home to seek his consent to enter the premises; Solomita lived in the area of the defendant's pizza business and had even been a patron there prior to the fire. At that time Solomita knew the defendant was a suspect. When they entered for the search, after Cipriano pried off the plywood on the front door, the defendant's equipment was still there; they initially saw it there eleven days earlier when police and fire officials were there with the defendant as well as Cipriano. He stresses the lack of exigent circumstances stating that the fire had long since been extinguished. In Stoner, the United States Supreme Court said that "the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency by unrealistic doctrines of 'apparent authority.' " Stoner v. California, supra, 488. Some courts have refused to suppress evidence obtained as the result of a reasonable good faith belief that permission was given by one with the actual authority to consent to a search. See People v. Adams, 53 N.Y.2d 1, 8-9, 422 N.E.2d 537 (1981), and cases there cited. The rationale for this approach has been said to derive from the fact that the fourth amendment protects against unreasonable searches and seizures and, therefore, "if the police are acting in a reasonable fashion in response to the circumstances with which they are confronted, then an error in judgment in failing to ascertain the actual authority of the person to consent should not give rise to an unreasonable search." People v. Adams, supra, 9. It is true that implicated in this rationale is the purpose of the exclusionary rule. That rule was designed "to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures" and not primarily to vindicate the individual's constitutional right. United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); People v. Adams, supra, 9. We do not dispute, assuming we adhered to the rule the state urges us to adopt, the view that application of the exclusionary rule in a case where there existed reasonable good faith reliance by the police would do little in discouraging improper police conduct. We deem relevant, at this point, the following language from Adams: "We emphasize that the police belief must be reasonable, based upon an objective view of the circumstances present and not upon the subjective good faith of the searching officers. Moreover, a warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority. Nor may the police proceed without making some inquiry into the actual state of authority when they are faced with a situation which would cause a reasonable person to question the consenting party's power or control over the premises or property to be inspected. In such instances, bare reliance on the third party's authority to consent would not be reasonable and would, therefore, subject any such search to the strictures of the exclusionary rule." People v. Adams, supra, 9-10; see People v. Wagner, 114 Mich. App. 541, 548-49, 320 N.W.2d 251 (1982). If we apply these principles to this case, the trial court could have reasonably concluded that the officers did not demonstrate the necessary reasonable good faith belief under the circumstances. Therefore, we need not decide whether such an exception to the exclusionary rule exists. The state does not claim that there was no evidence upon which the trial court could base the decision it reached, but rather that the result was erroneous under the applicable law. It is correct that the evidence was often in conflict and, arguably, the decision was a close judgment call, but credibility is still the province of the trier. Assuming arquendo that probable cause existed for the issuance of a warrant on February 13, as the state argued before us, we must observe that courts have strongly supported the preference to be accorded searches under a warrant and have explicated that a doubtful or marginal case with a warrant may be sustainable where one without it would fail. See, e.g., United States v. Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Jones v. United States, 362 U.S. 257, 270, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Bember, 183 Conn. 394, 412, 439 A.2d 387 (1981); State v. Jackson, 162 Conn. 440, 445, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). One of the purposes of the warrant requirement "is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). Just as a search cannot be justified by the potent evidence it produces, so also an unlawful search cannot be justified by claiming that the evidence seized might have been obtained by other and lawful means. United States v. Mancusi, 379 F.2d 897, 903 n.9 (2d Cir. 1967), aff'd sub nom. Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). The state has not shown, as it must, that the trial court's conclusions in this case were "clearly erroneous." See State v. Ostroski, supra; Pandolphe's Auto Parts, Inc. v. Manchester, supra; Practice Book § 3060D. It follows from what we have said that this search and seizure was "unreasonable" under the fourth amendment. There is no error. In this opinion Speziale, C. J., and Peters, J., concurred. General Statutes § 53a-112 provides, iu part, as follows: "(a) A person is guilty of arson in the second degree when he starts a fire or causes an explosion: (1) With intent to destroy or damage a building, as defined in section 53a-100, (A) of another, or (B) whether his own or another's, to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage." The defendant and Cipriano gave contradictory testimony at the suppression hearing as to why Cipriano secured the premises. Cipriano testified that he called the defendant on Sunday and requested that he board up the premises. The defendant allegedly responded by saying that he was "out of business." The defendant testified that he was told about the fire by his daughter on Sunday about the same time that Cipriano called him and she stated that the place was already boarded up. There was conflicting testimony as to when this door was put on. Cipriano testified that he had asked one Bushka on February 13 to build it. The defendant testified that it was not built until after February 22. The defendant did testify, however, that it was Cipriano who put on the door. One of the fire marshals testified that Cipriano let them in by prying open the plywood on the front door with a hammer. The defendant testified that he was the person who let them in. Zindros testified that on February 14, 1977, the fire marshal told him where the fire had started inside the premises and that "[h]e [the fire marshal] said that it happened with gasoline." One of the state troopers who engaged in the search on February 23 testified that he saw booths, an oven and a refrigerator. Cipriano testified that on several occasions the defendant's attorney called him up and requested to be let into the building. It is unclear, however, whether these requests came before the search on February 23, or after the defendant had been arrested. Cipriano further testified that the defendant had told him he was going out of business. The defendant denied this and said several times that it had always been his intention to reopen the restaurant. He testified that he "didn't get anything" and that "they [his insurance carrier] just returned the money that I paid for the insurance because the year wasn't up. They gave me the balance." There is no serious question raised of the defendant's standing on the motion to suppress in the sense that the state's brief recognizes that (as the trial court found) if the defendant's reasonable expectation of privacy is sustained, then the issue of the "reasonableness" of the search must be addressed. The United States Supreme Court in reference to "standing" has said: "But we think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979). In oral argument before us, the state expressly disclaimed that it was relying upon the "exigent circumstances" exception. See article third of the lease set out above. The court also specifically found that the bare statement attributed to the defendant after the fire that he was " 'out of business' certainly cannot be stretched to indicate an intent on his part to abandon the premises with all his valuable equipment still in it." Judge Spada's dissent recites a number of factual circumstances advanced purportedly to attack the conclusion that the defendant had a cognizable subjective expectation of privacy. These emphasize certain conduct of the landlord. Such analysis is inappropriate here because a determination of a defendant's subjective expectation of privacy focuses the examination on the defendant's acts and beliefs — not those of the landlord, Cipriano. See Stoner v. California, 376 U.S. 483, 489, 84 S. Ct. 889, 11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303 (1964). Judge Spada's dissent concludes that the expectation of privacy we conclude the defendant had is not one which society would recognize as reasonable, citing United States v. Bellina, 665 F.2d 1335, 1340 (4th Cir. 1981). He also cites United States v. Rucinski, 658 F.2d 741, 746 (10th Cir. 1981), cert. denied, 455 U.S. 939, 102 S. Ct. 1430, 71 L. Ed. 2d 649 (1982), for the proposition that private houses and commercial property are distinguishable in terms of the protection afforded by the fourth amendment. We point out that Beilina involved the search of an airplane and the court noted the significance of that factor in stating that the "rule of a limited or diminished expectation of privacy that exists in connection with automobiles has been consistently held to attach to airplanes." United States v. Bellina, supra, 1341. In Bellina the court was not at all concerned with the reasonableness of one's privacy rights in commercial premises. We do not quarrel with the proposition that, in certain circumstances the United States Supreme Court has held that administrative inspections of commercial premises do not require the full protection of a search warrant. Rucinski involved a search of the defendant's lumber mill premises from a distance by federal agents using cameras and a telescope to ascertain - whether the defendant was manipulating the quality of logs he cut from government property under a contract in which he had already agreed to unannounced inspections. In holding that the defendant had no reasonable expectation of privacy in the mill yard of his lumber company which was surrounded by nothing more than a barbed wire fence, the court said that barbed wire fence " could scarcely be compared with those situations in which dwellings and structures occupied by persons having the expectation of privacy are protected from surveillance." United States v. Rucinski, supra, 746. In Rucinski, the court relied upon the ease of Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981). In summarizing the law in this area the Donovan court said: "These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Donovan v. Dewey, supra, 600. The search of Zindros' commercial premises was hardly an inspection made pursuant to a regulatory scheme as it was in Donovan (federal inspection of a quarry concerning correction of 25 violations under the Federal Mine Safety and Health Act of 1977), but a search for evidence of a crime. Zindros' expectation of privacy, therefore, was such that society would recognize it as reasonable. We recognize that an exception occurs if the tenant has abandoned his interest in the leased premises or if the lease has terminated by means other than abandonment. See, e.g., Feguer v. United States, 302 F.2d 214, 249 (8th Cir.), cert. denied, 371 U.S. 872, 83 S. Ct. 123, 9 L. Ed. 2d 110 (1962). Our determination on the expectation of privacy issue that the trial court correctly determined that the defendant did not abandon the leased premises is the same on the issue of consent. The search conducted by the police of the leased premises was hardly one of "inspection"; see Marshall v. Barlow's, Inc., 436 U.S. 307, 311-13, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); but was, as the court specifically found, "for the sole purpose of searching for and obtaining evidence of arson." Article eleventh of the written lease provided in part: "Should the demised premises be rendered untenantable and unfit for occupancy, but yet repairable within ninety days from the happening of said injury, the Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after said repairs shall be completed . . . ." In its memorandum of decision the trial court made no express finding of untenantability-under the lease nor did it find that the landlord's entry on February 23, 1977, was made for repair. The court's memorandum contains no finding that the defendant entered the premises after the fire for the purpose of repairing them under the lease. Moreover, the court explicitly found that the landlord asked for a full month's rent for March, 1977, from the defendant. The state does not point to any provision in the lease that mentions "exclusive possession" eo nomine nor do we find any. The state refers to Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), decided by the United States Supreme Court after the fire of February 14, 1977. In Tyler, that court held, inter alia, that once having entered a building to extinguish a blaze, officials can remain therein for a reasonable time in order to investigate the cause of the fire. "Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches." (Citations omitted.) Michigan v. Tyler, supra, 511-12. The faet that Tyler was decided after the fire in this appeal is not critical on this appeal. The intrusion complained of was by governmental ofii-cials, both police and fire, searching for evidence of a crime. The fourth amendment applies fully just as if Michigan v. Tyler had not been decided. For this reason, the reliance merely upon the provisions in the lease in the dissenting opinion is misplaced. It is the use of the property that is controlling, not the potential right to use. The analysis in the state's brief on the consent issue draws on what it argues were the landlord's rights under the lease. The closest thing to such an assertion is the court's statement that "[t]he premises suffering extensive damages rendering them unfit for oceupancy." The court did not, however, relate it to the provision upon which the state relies here. Zindros testified that this occurred when he (Zindros) and his insurance agent were on the premises concerning a settlement at which time the landlord was making "a little disturbance"; "He [the landlord] was hollering. He was asking for the March rent." The defendant also said that at that time the landlord was not there cleaning the premises nor was he doing any work there. See articles tenth, eleventh, and twenty-fourth of the lease, set out above. See article tenth of the lease, set out above. Judge Spada's dissent points out that "[ujnder the lease, the landlord reserved to himself the right of access and entry upon the occurrence of a major fire." If we assume, arguendo, as he says, that "[t]his reservation was broad enough to allow for appraisal of damage; the opportunity to repair and relet; and finally to locate and abate a suspected cause of the fire," such rights cannot be the basis for extending authority to the landlord to authorize a warrantless search of the premises by the police for criminal evidence in this ease. This proposition was rejected in Chapman v. United States, 365 U.S. 610, 616, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961), which Judge Spada endeavors to distinguish by stating that there was no relevant lease provision in Chapman. No basis exists for such a distinction. The premise for the holding in Chapman was that property law should not control protections afforded by the fourth amendment. Similarly, contract law cannot be utilized here to control the defendant's constitutional rights. To conclude otherwise would cause Zindros' fourth amendment rights to be subject to, at the very least, the loosely fettered discretion of his landlord. The dissenting opinioa by Justice Shea asserts that this ease is similar to United States v. Botsch, 364 F.2d 542 (2nd Cir. 1966). The court in that case, however, acknowledged that it was distinguishable from landlord consent eases because the landlord's "activities — though innocent — were inextricably intertwined with Botseh's alleged scheme and cast suspicion upon him . . . ." Id., 548. Courts that have cited the Botseh ease have consistently noted this distinction. See United States v. Diggs, 544 F.2d 116, 120 (3d Cir. 1976) (the "right to exculpate oneself decisively distinguished [Botseh] from [the searches] condemned in the so-called 'hotel cases' "); United States v. Gargiso, 456 F.2d 584, 587 (2d Cir. 1972) ("Here, as in Botseh, and unlike in' Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 [reh. denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303] (1964) . the landlord — with access to and interest in an area . . . has a right quickly to exculpate himself from suspicion."); United States v. Cataldo, 433 F.2d 38, 40n (2d Cir. 1970), cert. denied, 401 U.S. 977, 91 S. Ct. 1200, 28 L. Ed. 2d 326 (1971); United States v. Poindexter, 325 F. Sup. 786, 791 (S.D.N.Y. 1971); Gieffels v. State, 590 P.2d 55, 61 (Ala. 1979); Commonwealth v. Latshaw, 481 Pa. 298, 308n, 392 A.2d 1301 (1978), cert. denied, 441 U.S. 931, 99 S. Ct. 2050, 60 L. Ed. 2d 659 (1979). Here, unlike in Botseh, we have noted that it was the defendant who was a suspect at the time that Cipriano consented to the entry. There was no testimony that Cipriano consented to the entry on the basis of trying to exculpate himself — from suspicion. Therefore, the Botsch case is inapplicable to the facts in the present ease. We note that the trial court's memorandum of decision does not address either the claim of "apparent authority" or "reasonable good faith belief," although the parties briefed and argued both issues in this court. The defendant has not claimed that these issues were not raised in the trial court. The evidence was conflicting as to when this occurred with reference to the date of the search; in any event, the court made no finding on this circumstance. The state points to no evidence that this was known to the officers before their February 23 entry so as to contribute to the interrelated claim of "apparent authority" and "reasonable good faith belief." Solomita testified that he and Detective Gary went to Cipriano's home for this purpose. Gary, who was among the officers who entered the premises on February 23, did not testify at the hearing on the motion to suppress. The state urges us te adopt the view of United States v. Williams, 622 F.2d 830, 847 (5th Cir. 1980), cert. denied, 449 U.S. 1127, 101 S. Ct. 946, 67 L. Ed. 2d 114 (1981), and to adopt such an exception. In United States v. Williams, supra, the arresting drug enforcement agent recognized "with certainty" that the defendant was in violation of her bail limitations under the statute imposing tra.vel restrictions upon her. 18 U.S.C. § 3146. That court, deciding that the agent acted on the good faith belief that the defendant's conduct was in violation of statute, found that suppression of heroin found in an incidental search was not required whether or not her violation of the bond limitation warranted her arrest and consequent searches. In applying the good faith exception in Williams that court said: "A good-faith mistake about the legal intricacies of bail jumping would not require exclusion of that heroin found in an incidental search." United States v. Williams, supra, 846. Adverting to Williams, the state claims that the good faith of the officers in this case must be evaluated "in light of apparently valid provisions of the General Statutes authorizing entry of the type made here. Conn. Gen. Statutes Secs. 29-49 and 29-52." Once again we note that the trial court did not address this claim and yet, on the record before us, no motion to rectify was made by the state; Practice Book § 3082; and we note that the defendant has not briefed or argued this claim although the state has. General Statutes § 29-49, as it was on February 23, 1977, provided that "the local fire marshal shall, within two days, not including Sunday, of the occurrence of any Are within his jurisdiction . . . investigate the cause, origin and circumstances of such Are, and especially investigate whether such Are was the result of carelessness, design or any criminal act, and for the purpose of such investigation may enter into and upon the premises where the Are occurred . . . and examine the same . . . ." If we assume that the entry on February 13, 1977, was pursuant to this statute, it is hardly any justiAeation for the entry on February 23, 1977 — a lapse of eleven days during which the record discloses no meaningful pursuit of that investigation in the interval. General Statutes § 29-52, it appears, requires periodic inspections and permits entry for the same. It also provides for entry in an emergency. No serious claim can be made that the entry of February 23, 1977, was an "inspection" pursuant to this statute or that it was pursuant to an emergency — which latter circumstance has been expressly disclaimed by the state. Therefore, we need not even decide whether such an exception should exist in this jurisdiction because we have already decided that the belief of the officers that the search was proper was unreasonable under the circumstances. See Riley v. Gray, 674 F.2d 522, 528-29 (6th Cir. 1982).

House, C. J. In 1968, the defendant was convicted, on a trial to the jury, of having heroin under his control in violation of Public Act No. 555, adopted in the 1967 session of the General Assembly. See General Statutes § 19-481. He was also found guilty of being an habitual offender under the provisions of what was then § 54-121 of the General Statutes. He appealed from the judgment assigning error in (1) the denial of his motion to suppress evidence; (2) certain rulings on the admissibility of evidence; (3) the denial of his motion for a mistrial; (4) the denial of his motion to dismiss the habitual offender part of the information; and (5) the sentence imposed. At the hearing on his pretrial motion to suppress and on this appeal, the defendant has claimed that the affidavit in support of the application for a warrant to search an apartment at 584 Berkshire Avenue in Bridgeport, prepared by the police and submitted to a judge of the Circuit Court (Eielson, J.) on December 28, 1967, did not support a finding of probable cause to believe that evidence of criminal activity existed within the apartment alleged by the affiants to be premises where such evidence was concealed. The defendant asserts that the judge acted improperly in issuing the search warrant, and that under the provisions of the fourth amendment to the constitution of the United States as applied to the states by the fourteenth amendment, his motion to suppress should have been granted and the items seized in that apartment pursuant to the authority of the warrant should not have been admitted in evidence. Specifically, the defendant contends that the affidavit supporting the application for the search warrant does not contain any facts which connect the asserted illegal activity with the apartment sought to be searched. The application for the warrant was predicated upon information supplied to the police by two informants whom they represented to be reliable. In the first two paragraphs of the affidavit and application for the warrant the apartment to be searched and in which it was complained that narcotic drugs and paraphernalia were located was specifically described as "[a] 3 story dwelling, with grey imitation brick siding, the 1st floor apartment on the right side front numbered 584 Berkshire Ave., Bridgeport, Conn." After reciting that one of the reliable informants had stated that Bose bought heroin out of town, mixed it with sugar, packaged it in small white packets, scotch taped it, and sold it to addicts, the affidavit then described the paraphernalia used by Bose and stated: "These items are kept in a closet just right of the entrance door to the apartment." This reference to "the apartment" is the first reference to any apartment after the specific earlier description of the apartment at 584 Berkshire Avenue, Bridgeport, for which the search warrant was sought. Clearly the premises to be searched and the illegal activity being conducted on those premises by Rose were sufficiently identified to support the issuance of the search warrant. As Justice Goldberg said in United States v. Ventresca, 380 U.S. 102, 108-09, 85 S. Ct. 741, 13 L. Ed. 2d 684, referring to the historical development of constitutional standards in the area of search and seizure: "These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. "This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. See Aguilar v. Texas, . . . [378 U.S. 108, 109, 84 S. Ct. 1509, 12 L. Ed. 2d 723]. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circum stances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." This court has also had occasion to observe: "The principles by which we test the adequacy of an affidavit have been designed to insure that a disinterested judicial officer make his own comm on sense judgment that there is probable cause for the issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas, 378 U.S. 108, 110-11, 84 S. Ct. 1509, 12 L. Ed. 2d 723; State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517." State v. Grayton, 163 Conn. 104, 106, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495; see also State v. Saidel, 159 Conn. 96, 98, 267 A.2d 449. Keeping in mind the fact that the reviewing court may consider only information brought to the issuing judge's attention; Aguilar v. Texas, 378 U.S. 108, 109, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Giordenello v. United States, 357 U.S. 480, 486, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; we conclude that the judge issuing the warrant, taking this commonsense approach, could reasonably and logically find that there was probable cause to search the apartment specified in the warrant and to issue the warrant. In view of the contrary conclusion reached in the dissenting opinion, we have printed in full the affi davit and application for the search and seizure warrant on. the basis of which the warrant was issued. The defendant next contends that the judge who issued the search warrant could not have reasonably found probable cause to issue it because the affidavit supporting the application for the warrant did not state the date on which the informant made his observations of narcotic activity. In support of this contention, the defendant relies primarily on Rosencranz v. United States, 356 F.2d 310 (1st Cir.). In the first place, this reliance is misplaced. The determinative issue in Rosencranz was not the date the informant made the observations of suspected criminal activity but rather the date when he related these observations to the affiant-police officer. Id., 315. In the present case, the dates on which the Bridgeport police received the information from each of two different informants is stated. While there is no fixed test for finding the existence of probable cause, proof of its existence must include facts so closely related to the time of the issuance of the warrant as to justify a finding of the existence of probable cause at that time. "The facts and circumstances set forth in an affidavit submitted in support of the issuance of a search warrant should be current and timely, so as to indicate that the premises, person, place or thing to be searched presently contains the fruits of the crime." Maride, "The Law of Arrest and Search and Seizure," p. 223. An exception to this rule is where the court finds facts indicating the likelihood that there is a continuing criminal activity. United States v. Mustone, 469 F.2d 970 (1st Cir.); United States v. Johnson, 461 F.2d 285 (10th Cir.); State v. Austria, 55 Haw. 565, 524 P.2d 290; Johnson v. State, 14 Md. App. 721, 288 A.2d 622; note, 100 A.L.R.2d 525, 542; Markle, supra, 226. The facts indicating this continuity must satisfy the same requisites of reliability as other facts within the affidavit that purport to evidence probable cause. Whether the proof meets this test must be determined by the circumstances of each case. Sgro v. United States, 287 U.S. 206, 211, 53 S. Ct. 138, 77 L. Ed. 260; State v. DeNegris, 153 Conn. 5, 8-9, 212 A.2d 894. The basic criterion as to the duration of probable cause is the inherent nature of the crime. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.). As the court there noted: "The circuits hold that where an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance." In the present case, the facts recited in the affidavit disclose that the defendant received 86 percent pure heroin from out of town, diluted it with milk sugar and packaged it in smaller packets in his apartment for later distribution. Prom such a portrayal of ongoing criminal activity, presented to the officers by two different informants, one nine days before the warrant was issued and the other only the day preceding the application for the warrant, the issuing magistrate could reasonably conclude that probable cause existed at the time the warrant was issued. The defendant next attacks the affidavit asserting that it lacked sufficient corroboration of the informants' statements. In support of his position, he cites Aguilar v. Texas, supra, 114, which stated that "[a]lthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, [80 S. Ct. 725, 4 L. Ed. 2d 697] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . .- was 'credible' or his information 'reliable.' " The affidavit presented by Detectives Frank Kapostas and William Brackett of the Bridgeport police department contained information from two informants which information was in the form of underlying facts and not conclusions. Each informant was represented as being known to the affiants and as reliable, having given information which led to previous convictions. Each informant's report in the affidavit provides important corroboration of the other's information. In addition, the detectives investigated and discovered that the defendant had a lengthy police record and was on parole at the time. Further, the detectives themselves observed the defendant in the company of a known narcotics pusher during the month preceding the issuance of the search warrant. The information in toto was clearly sufficient and satisfied the requirements specified in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and State v. Grayton, supra, 107. The attack on the sufficiency of the affidavit is without merit. The defendant next claims error in the conclusion of the trial court that the search and seizure warrant was legal, asserting that there is no indication in the transcript or record that the court in fact examined the warrant. The absence of such an indication is, however, not conclusive on the question of whether the court did in fact examine the warrant itself, and none of the defendant's attacks on the search has been directed at the contents of the warrant itself. Bather, they all go to contest the sufficiency of the information contained in the affidavit and application for the warrant, and we have found all of these attacks to be without merit. Furthermore, the defendant has not attacked the finding of the court that the warrant was issued "to search for and seize narcotic drugs, dangerous drugs and narcotic paraphernalia" and that such articles were in fact seized as a result of the search. The defendant next claims that he did not receive a fair trial and that there was error in denying his motion for a mistrial. The motion for a mistrial was made after the court through its own questions elicited from a witness, Sergeant John Seniber of the Bridgeport police department, that in his opinion the approximate value of the heroin in one of the packages seized in the defendant's apartment was $11,000. The basis for the motion was a claim that this testimony was irrelevant to the crime charged, speculative on the part of the witness in that it had no basis in the facts then in evidence, and was inflammatory and prejudicial to the defendant. In addition, the defendant asserts that the witness' valuation of the heroin was based on the-assumption that it was pure heroin, a fact not in evidence. Subsequent to this testimony, the state toxicologist testified that the substance seized from the defendant's apartment was not pure heroin but was at least eighty percent milk sugar. He estimated the value of the heroin seized at several hundred dollars. Thereafter, the court struck the testimony of Sergeant Sember concerning his valuation of the heroin and in no uncertain terms instructed the jury to disregard it totally. It is well established that "a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial and the whole proceedings are vitiated." Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433; State v. Leopold, 110 Conn. 55, 60, 147 A. 118; see also Goggins v. Reinzo Trucking Co., 166 Conn. 240, 250, 348 A.2d 569; State v. Savage, 161 Conn. 445, 449, 290 A.2d 221. The court has wide discretion in passing on motions for mistrial. Ferino v. Palmer, supra. In light of the court's careful and explicit instructions to the jury when it discovered the possibility that irrelevant and mistaken testimony had been given, we can find no abuse of its discretion in the denial of the defendant's motion for a mistrial. The defendant next assigns error to several evidentiary rulings made by the court during the course of the trial. He first claims error in the admission of physical and testimonial evidence based on the claim that this evidence was the product of an illegal search and seizure. Having determined that the search and seizure was lawful and constitutional, it follows that evidence which resulted from that search was clearly admissible. The defendant also assigns error to the rulings of the trial court sustaining the state's objection to certain questions propounded during cross-examination of witnesses by the defendant's counsel. These questions'attempted to elicit from police officers, who had taken part in the search of the defendant's apartment, testimony concerning the defendant's wife's involvement with the narcotics which were found there. The state objected on the grounds of irrelevance and its objections were sustained. The defendant argued that he was entitled to present evidence, as an alternative explanation for the presence of the drugs, that the narcotics in his apartment were his wife's and not his. The trial court has broad discretion in determining the relevancy of evidence. Johnson v. Newell, 160 Conn. 269, 276, 277, 278 A.2d 776; State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455; State v. Smith, 157 Conn. 351, 355, 254 A.2d 447; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, cert. denied, sub nom. State v. Joseph, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557. "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 probable. 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. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. State v. Towles, 155 Conn. 516, 523, 235 A.2d 639; Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444." Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715. The trial court has wide discretion as to the scope of cross-examination as well. State v. Brathwaite, 164 Conn. 617, 619, 325 A.2d 284. In view of the fact that only the defendant was on trial and not his wife, and that there had been no mention on direct examination of his wife's connection with the narcotics seized, we conclude that the trial court did not abuse its discretion in ruling as it did. The finding clearly indicates that the defendant did introduce evidence in his offers of proof that his wife was an addict, had used heroin, and had used a set of works similar to that seized from his apartment. The defendant also assigned as error the court's denial of his motion to dismiss the habitual offender portion of the information which alleged that he had twice before been convicted, sentenced and imprisoned in the state prison. The charge was made pursuant to the provisions of § 54-121 of the 1958 Eevision of the General Statutes which prescribed indeterminate sentences to the state prison "provided, when any person so sentenced has twice before been convicted, sentenced and imprisoned in a state prison or penitentiary, the court shall sentence such person to a maximum of thirty years." It is the defendant's claim that the statute was unconstitutional because it violated the equal protection clause of the United States constitution and the imposition of the prescribed sentence amounted to cruel and unusual punishment. In State v. Mead, 130 Conn. 106, 109, 32 A.2d 273, and State v. Grady, 153 Conn. 26, 35, 211 A.2d 674, we decided against the validity of just such contentions and there is no need to repeat what we said there. Neither the record in this case nor the passage of time since our decisions in those cases persuades us to a result different from that reached in those cases. The defendant's final assignment of error is addressed to the sentence imposed by the trial court. It is Ms claim that the severity of the sentence imposed appears to have been influenced by a mistake on the part of the court as to the amount of heroin found in the defendant's apartment. In its remarks at the time of imposing sentence, the court attempted to calculate the value of the heroin seized. It appears that in doing so the court based its calculations on the mistaken assumption that there are 479 grams in an ounce. The defendant was sentenced to not less than ten years nor more than thirty years in the Connecticut state prison. The thirty-year maximum term was mandated under § 54-121 as it applied to habitual offenders. The ten-year minimum term was the maximum term then prescribed for a first offense under § 37 (a) of the 1967 Public Acts, No. 555 (now General Statutes §19-481 [a]). 1969 Public Acts, No. 753, §19, decreased the maximum term for a first offense from ten to five years. The sentence as imposed was within the limits fixed by statute for the offense charged. We have no discretionary power in such a case except where a trial court appears to have abused its discretion. State v. LaPorta, 140 Conn. 610, 612, 102 A.2d 885; State v. Van Allen, 140 Conn. 39, 44, 97 A.2d 890; State v. Horton, 132 Conn. 276, 278, 43 A.2d 744. That does not appear to be the case here. Two other factors are also of sigmfieance. First, it does not appear that the present claim was ever made to the trial court at the time of sentence. See Practice Book § 652; State v. Malley, 167 Conn. 379, 386, 355 A.2d 292, and cases cited therein. Second, although the defendant on appeal assigned as error the comments of the court and the imposition of the sentence to which objection is now pressed, the court refused to make any corrections. Inherent in the present argument of the defendant is an assumption that despite the court's refusal to make any change in the sentence as imposed that sentence was predicated solely on the court's misconception of the quantity of heroin found in his possession. This assumption is unwarranted in view of the information obtained by the court during the trial and that made available to it in the report submitted before sentence by the adult probation office. See Greneral Statutes § 54-109. Of particular relevance in consideration of the penalty imposed is the information submitted to the court that on September 27, 1945, the defendant had been convicted of robbery with violence and sentenced to prison for a term of not less than five years nor more than seven years and that on October 27, 1955, he was convicted of the crimes of robbery with violence, breaking and entering with violence and escape (from jail) with violence and sentenced to prison for the term of not less than twelve years nor more than twenty-five years. These convictions and sentences were proper for the consideration of the court not only in fixing the maximum sentence under the habitual offender statute but in fixing the minimum sentence. If the defendant were of the opinion that his sentence should have been reconsidered, his remedy was by application to the review division of the Superior Court in accordance with the provisions of § 51-194 through 51-196 of the Greneral Statutes. See Kohlfuss v. Warden, 149 Conn. 692, 697, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235. There is no error. In this opinion Loiselle and Longo, Js., concurred. Bogdanski, J., concurred in the result. "Affidavit and Application Search and Seizure Warrant CCT-7A Eev. 3-66 STATE OF CONNECTICUT CIBCUIT COUBT TO: A Judge of the Circuit Court The undersigned, being duly sworn, complains on oath that the undersigned has probable cause to believe that certain property, to wit: Nareotic Drugs, Dangerous Drugs, and Narcotic Paraphernalia is possessed, controlled, designed or intended for use as a means of committing the crime of Possession and control of narcotic drugs in violations of Public Act #555 And is within or upon a certain person, place, or thing, to wit . . . A 3 story dwelling, with grey imitation brick siding, the 1st floor apartment on the right side front numbered 584 Berkshire Ave., Bridgeport, Conn, and Joseph Bose a white male age 46, 5'6", 155 lbs. And that the facts establishing the grounds for issuing a Search and Seizure Warrant are the following 1. Det. William Brackett a regular member of the Bridgeport Police Dept, for the past 16^ years, presently assigned to the Special Service Division for the past 13 months. 2. Det. Frank Kapostas a regular member of the Bridgeport Police Dept, for the past 16^ years, presently assigned to the Special Service Division for the past 2 years. 3. Dets. Brackett & Kapostas have participated in numerous narcotic arrests and investigations. 4. On December 19, 1967, Dets. Brackett & Kapostas received reliable information from a confidential informant. This informant has given information in the past that has led to the arrest of 7 people, 3 of these received convictions and the other 4 are still pending court trial. 5. The reliable informant came to the offices of Special Services and informed Dets. Brackett & Kapostas that Joseph Bose was a supplier of Heroin in large quantities and he in fact supplies heroin to the small heroin pushers around the city of Bridgeport. 6. A check with Central Becords Division in the Bridgeport Police Dept, reveals that Joseph Bose has a very lengthy police record and is presently on parole. 7. December 28, 1967 a reliable and confidential informant came to the offices of Special Services to give information on the actions of Joseph Bose. This informant has given information in the past that has led to the arrests of 4 people, 1 of which is serving a long sentence in Conn. States Prison. 8. This informant stated to Dets. Brackett & Kapostas that Joseph Bose has pushers working for him that are selling large amounts of Heroin. 9. The informant also stated that Bose buys Heroin at 86% pure out of town then mixes this with Milk Sugar. With this mixture of Heroin and Milk Sugar it is then packaged in small white packets, scotch taped, and sold to the addict for the sum of $6.00. 10. The informant further stated that he was present during the time when Bose was making this mixture and small $6.00 packets. Used during this processing is a large mirror, nylon stockings (for Sifting), tea spoons, white paper, and rubber bands. These items are kept in a closet just right of the entrance door to the apartment. 11. During the month of December 1967 Dets. Brackett & Kapostas observed Joseph Bose in the company of a known narcotic pusher in the vicinity of Beardsley Ter. Apts. 12. Based on the information received, observations, Training and Experience of the officers, their knowledge that a crime is being committed, it is believed that they have established probable cause that the crime of Public Act #555 of the Connecticut General Statutes is being committed. 13. This application has not been presented to any other judge. The undersigned has not presented this application in any other court or to any other judge. Wherefore the undersigned prays that a warrant may issue commanding a proper officer to search said person or to enter upon said place or thing, search the same, and take into custody all such property. Signed at Bridgeport, Connecticut this 28 day of December, 1967 Det. Prank Kapostas Signed at Bridgeport, Connecticut this 28 day of December, 1967 Det. William Brackett" The finding of the court was that as a result of the search the following items were seized: "One full can of Lactose U.S.P. powder (milk sugar). One blue tissue paper which was found with the works wrapped in it. One large package of suspected pure heroin. One medium size package of suspected pure heroin. Two small packs or decks of suspected heroin. Two plastic pouches of traces of suspected heroin. One bottle cap cooker with small cotton swatch residue of suspected heroin. One hypodermic syringe, four B & D No. 26 needles, 22 empty glassine envelopes, 11 assorted size white linen paper commonly used for packaging small packs or decks of heroin, and one Holland Linen paper pad."

Spallone, J. The defendant appeals his conviction, after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2). The defendant claims that the trial court erred (1) in denying the defendant his right to a unanimous verdict on the first count of the information, (2) in instructing the jury that the defendant could be guilty of assault by acting recklessly, and (3) in concluding that the evidence was sufficient to support a conviction of conspiracy to commit robbery. The jury could reasonably have found the facts as follows. At about 3:30 p.m. on March 13,1984, the police, having been dispatched to 177 Overlook Terrace in Hartford, discovered the victim, Eloy Vega, bleeding from a head wound. Officer Francis Haynes, one of the police who responded to the call, received information from three witnesses who stated that they had seen what happened. According to the witnesses, the perpetrators were four black males who were riding in a green Buick Electra with a broken taillight. The witnesses stated that the gun used in the incident was a small caliber handgun. Subsequently, the witnesses were brought to the police station and their statements were taken. At approximately 4 p.m. that same afternoon, Detectives Russell Blow and Edward Czernicki of the Hartford police department noticed a car matching the description of the suspect's vehicle as it drove by their position on Nelson Street. Blow recognized the driver of the car as the defendant, Willie Milledge. The two detectives stopped the car and, approaching it with guns drawn, ordered the occupants to keep their hands raised. The defendant, with his head down to the level of the steering wheel, appeared to be fumbling with something under the seat in an attempt to hide it. The defendant was ordered to exit the car, after which a small .25 caliber handgun was recovered from the vehicle. This gun was later proven to be the weapon from which a bullet taken from the victim's skull was fired. In addition to the defendant, the vehicle was occupied by Arthur Alexander, Woodrow Johnson, Billy Leonard, and Barry Williams. The suspects were taken into custody and were made subjects in a lineup. Freddie Torrez, the brother of the victim, witnessed the shooting. He viewed the lineup and picked out the defendant as the party who held the gun while Alexander and Williams threw him to the ground and robbed him of $35. Juan Rodriguez and Narcisco Texidor, who also had witnessed the crime, also picked out the defendant from the lineup as having been at the scene of the shooting. Torrez indicated that he heard one person say "Willie, let's get him now." The victim of the shooting, Vega, stated that the driver of the car wore a New York Yankee baseball cap and that the last thing he remembered before being shot was the driver's holding a pistol in front of his face. Arthur Alexander, one of the passengers in the car, identified the defendant as the person who pointed the weapon at the victim and shot him. Texidor identified the defendant as wearing a New York Yankee baseball cap and as the driver of the vehicle. Texidor stated that the defendant was carrying a small handgun when he ran back to the Buick. He also stated that the defendant had his finger on the trigger of the gun. The defendant's first claim, although not raised at trial, is reviewable by us under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant asserts that he was deprived of his right, under the sixth amendment to the United States constitution, to a unanimous verdict of his six member jury. He claims deprivation of a fundamental right and contests the fairness of his trial. We held in State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986), that a defendant's unanimity claim falls into the category of cases that may be reviewed under the Evans bypass. It is clear that the sixth amendment to the United States constitution guarantees a defendant in a criminal case the right to a unanimous verdict if his jury consists of only six members. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979). The amended information, in the first count, charging the defendant with robbery in the first degree, sets forth as follows: "First Count: That the said Willie Milledge did commit Robbery in the First Degree in Violation of Connecticut General Statutes § 53a-134 (a) (2), and that on or about March 13,1984, in the area of 176 Overlook Terrace in the City of Hartford, while accompanied with co-defendants, he was armed with a deadly weapon which he discharged into the skull and eye of Eloy Vega to overcome his resistance for the taking of Mr. Vega's property and Freddie Torre[z]." In pressing his unanimity argument, the defendant claims that some of the jurors might have found the defendant guilty of robbing Vega, while others of the jury might have found the defendant guilty of robbing Torrez. The jury could have been unanimous in its conclusion that a robbery was committed but could have lacked unanimity as to each of the victims, individually, thereby depriving the defendant of his constitutionally required unanimous verdict. We disagree with the defendant's argument that in order to find the defendant guilty the state had the burden of proving that two robberies were committed. The state charged the defendant with only one count of robbery for which the defendant was tried, convicted and sentenced. The state had the burden of proving beyond a reasonable doubt the elements of the crime of robbery in the first degree as charged in the amended information. The essential elements constituting the crime of robbery in the first degree under General Statutes § 53a-134 (a) (2) are a robbery when the person committing same is armed with a deadly weapon. General Statutes § 53a-133 defines robbery as essentially the taking of the property of another by the use of force or the threat thereof. The information in this case, in addition to relating the essential elements of robbery in the first degree, in effect, gratuitously adds additional elements resulting in a greater burden of proof required of the state. This greater burden, requiring that the state prove more than the necessary elements to constitute the crime, works to the advantage of the defendant. Where the circumstances of the charge work to the benefit of the defendant and substantially increase the state's burden of proof, the defendant has little cause to complain. State v. Hawthorne, 175 Conn. 569, 574, 402 A.2d 759 (1978). Moreover, in this case the added element of "while accompanied with co-defendants," and the taking of the property of Freddie Torrez are pleaded as additional allegations subject to proof by the state beyond a reasonable doubt rather than in the alternative which might support a claim of lack of unanimity. The jury was not confronted with the option of choosing from the allegations only those elements necessary to constitute a robbery of either Vega or Torrez but was in fact instructed by the court that they had to find, unanimously, all the elements as alleged in order to convict the defendant of the crime of robbery in the first degree. The trial court in its instructions to the jury on several occasions emphasized the fact that their verdict had to be unanimous. A fair reading of the complete charge leaves no doubt that the jury was fully and fairly apprised of the requirement of unanimity. In addition, the record indicates that the jury was polled and that the defendant neither made an effort to provide a record of the results nor did he object to the acceptance of the verdict. If the poll supported the defendant's claim of lack of unanimity, we would expect that he would have provided us with the record of the same. We will not presume error. State v. Tyler-Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985); State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). The defendant's claim of lack of unanimity is unwarranted. The defendant's next claim, that the trial court erred by instructing the jury that the defendant could be found guilty of assault if he acted recklessly, and his final claim, that the evidence was insufficient to support a conviction for conspiracy to commit robbery, were not raised by him at the trial level and he has not claimed that they are reviewable under State v. Evans, supra. Consequently, we decline to review these claims on appeal. Practice Book § 3063; State v. Kurvin, 186 Conn. 555, 563-64, 442 A.2d 1327 (1982); State v. McDaniel, 176 Conn. 131, 135, 405 A.2d 68 (1978); State v. Hilliard, 3 Conn. App. 339, 341, 488 A.2d 463 (1985). There is no error. In this opinion the other judges concurred.

Daly, J. The named plaintiff brought this action in negligence and nuisance for personal injuries he sustained in a fall allegedly caused by the defective condition of a softball field under the control of the defendant. The named plaintiff's former wife joined in this action raising a claim for loss of consortium on the theories of negligence and nuisance resulting from her husband's injuries. The trial court directed a verdict in favor of the defendant on the counts of nuisance and loss of consortium from nuisance. The jury returned a verdict in favor of the defendant on the remaining two counts, negligence and loss of consortium from negligence. The plaintiffs claim on appeal that the trial court erred (1) in directing a verdict on the two counts based on a theory of nuisance, (2) in limiting the jury's inspection of the site of the injury, (3) in restricting the plaintiffs' cross-examination of the defendant, and (4) in instructing the jury on the duty of care owed to an invitee and on the measure of damages for loss of consortium. The jury could reasonably have found the following facts. On June 28, 1980, the defendant, owner of Capellero's Grove, catered a picnic for the International Association of Electrical Inspectors. The defendant's business specialized in social catering for large groups offering activities of basketball, badminton, Ping-Pong, softball and volleyball. The named plaintiff, an electrical contractor, attended the picnic after paying the ticket price of $15. While playing second base in a softball game, he tripped and fell in an attempt to catch a fly ball. The named plaintiff claims that the fall resulted in a broken ankle and, subsequently, in the dissolution of the marriage between him and his wife some four years later. The plaintiffs' failure to file a motion to set aside the verdict limits our review to a determination of whether there has been "plain error" in any of the issues raised. Practice Book § 4185; Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984). The plaintiffs' claims of error, however, do not rise to the level of plain error. The plaintiffs' first claim of error is that the trial court erroneously directed a verdict in favor of the defendant on the two nuisance counts. The general rule in Connecticut is that a "trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion." Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). In our review of the trial court's directed verdict in favor of the defendant, we must consider the evidence in the light most favorable to the plaintiffs. Pinto v. Spigner, 163 Conn. 191, 193, 302 A.2d 266 (1972). A review of the facts in the light most favorable to the plaintiffs indicates that the jury could not have found for the plaintiffs on the nuisance counts. Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939), firmly established that in order to recover in a private nuisance action a plaintiff must have an ownership interest in the land. See D. Wright & J. Fitzgerald, Torts (2d Ed.) § 130. In this case, the named plaintiff had no such interest in the land. In fact, he was one of approximately 250 customers paying to gather at Capellero's Grove. His attendance at the union's picnic does not rise to an ownership interest in the land. Because the named plaintiff suffered no injury in relation to his ownership of an interest in the land, the trial court correctly directed a verdict in favor of the defendant. The plaintiffs' second claim of error is that the court erroneously restricted the jury's inspection of the site of the injury. In this case, the trial court allowed the jury to view the ball field where the injury occurred, without permitting the jurors to feel the ground in the area where the named plaintiff fell. Our Supreme Court has held that whether and to what extent a view of the subject matter is taken rests in the sound discretion of the court. O'Connor v. Dory Corporation, 174 Conn. 65, 72, 381 A.2d 559 (1977); see State v. Taxiltaridis, 2 Conn. App. 617, 622, 481 A.2d 98 (1984). The discretion afforded to the trial court is considerable. See Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985). There is nothing in the record before us to suggest that the trial court, by preventing the jurors from feeling the ground of the ball field, was being unfair. Nor does it appear that a more extensive view was reasonably necessary to do justice between the two parties. See Mackin v. Mackin, 186 Conn. 185, 189-90, 439 A.2d 1086 (1982). The plaintiffs additionally claim that the trial court erroneously ruled that the plaintiffs' evidence of prior injuries was irrelevant. Counsel's question regarding prior injuries was, however, withdrawn, making it not properly preserved for appeal. Even if we were to consider the plaintiffs' claim, a review of the record indicates that there was no plain error in the trial court's ruling. The plaintiffs' final claim of error is based on the jury instructions regarding the duty of care owed to an invitee and the measure of damages for loss of consortium. The plaintiffs assert that the jury charge was inadequate because it imposed a lesser duty upon the owner of the land than that required by law. It is clear from a review of the charge that the instruction accurately reflects Connecticut law, as stated by our Supreme Court in Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968). The trial court's instruction on the measure of damages for loss of consortium comports with the authorities that the right of consortium tracks the existence of the marital relationship and terminates upon its dissolution by death or divorce. 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions (1984) § 11.16 [5]; see also Sawyer v. Bailey, 413 A.2d 165 (Me. 1980); Bemis Co. v. Rubush, 401 N.E.2d 48 (Ind. App. 1980). Reviewing the record and arguments presented in this appeal, we conclude that it was not plain error for the trial court to have instructed the jury as it did. There is no error. In this opinion the other judges concurred. This case is analogous to Couture v. Board of Education, 6 Conn. App. 309, 505 A.2d 432 (1986). In Couture, this court held that the plaintiff, who helped in officiating a football game as a "chainman," could not recover, on a private nuisance theory, for injuries he suffered. This court held that since the plaintiff had no ownership interest in the land, the trial court correctly directed the verdict for the defendant on the nuisance count. The relevant portion of the court's charge regarding the duty to warn is as follows: "Now, as far as warnings are concerned, in this case, the plaintiff testified there has been some indication that he knew the field was bumpy when he went on to the field. If you believe that the bumpy condition of the field caused the plaintiff to fall or that the plaintiff already knew that the field was in a bumpy condition, then the defendant was not legally obligated to give any warning. The purpose of a warning is to alert somebody to the condition that he doesn't know about. There is no need to warn someone of a condition if he's already aware of it. I mean, that would make, that wouldn't add anything to the situation. If you find that the plaintiff already knew of the condition of the field, then the plaintiff wouldn't be entitled to any warning from the defendant . . . ." The relevant portion of the court's charge regarding loss of consortium is as follows: "There's another limiting factor here and I'm going to limit it by the fact that there was a dissolution of the marital contract that was completed approximately four years after the injury. So that the law decreed an end to that marriage contract. I charge you that also, in effect, put an end to any expectation of any continued consortium benefit."

Speziale, J. In October, 1974, the plaintiff, Genevieve C. Riccio, brought this action to recover for personal injuries that she allegedly received as a result of an accident on October 24,1972, in which her automobile was struck in the rear by an automobile operated by the defendant Richard A. Abate and owned by the defendant Rosario D. Abate. On April 4, 1975, the court granted the plaintiff's motion for summary judgment as to liability. On September 9, 1976, just prior to the start of trial before the jury on the issue of damages, the defendants amended their answer and the defendant Richard admitted that he failed to keep a proper lookout. At the conclusion of its charge to the jury, the court submitted two separate verdict forms on damages for their consideration: one for the plain tiff and one for the defendants. On September 10, 1976, the jury returned a verdict for the defendants, which the court accepted.. The plaintiff's motion to set aside the verdict was denied by the court and judgment was rendered for the defendants. This is the plaintiff's appeal therefrom. There was evidence before the jury that the plaintiff was driving over the Quinnipiac Eiver bridge on 1-95 when the automobile operated by the defendant Eichard rear-ended her automobile. The traffic was heavy and the vehicles were moving bumper to bumper at a speed of never more than five miles per hour. The plaintiff claimed, inter alia, neck, arm and back injuries as a result of the accident. At trial, there was conflicting expert medical testimony by doctors who had examined the plaintiff: the plaintiff's two doctors believed that her injuries resulted from the accident, hut the doctor who testified for the defendants disagreed and concluded that the plaintiff "probably does not actually have any significant permanent injury resulting from the accident itself of 1972." The sole issue raised on appeal is whether the trial court erred in denying the plaintiff's motion to set aside the jury verdict. The standard that this court must apply in reviewing such an order is strict: "On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot he disturbed unless there is a clear abuse of discretion. Birgel v. Heintz, 163 Conn. 23, 27, 301 A.2d 249." Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). "The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should he given in favor of its correctness. Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770; Neal v. Shiels, Inc., 166 Conn. 3, 19, 347 A.2d 102." Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 (1976). Even though the defendants were found liable when the court granted the plaintiff's motion for summary judgment, the burden of proof as to the amount of damages sustained was upon the plaintiff; and the jury in this case were "the ultimate judge of the credibility of witnesses and the weight to be accorded their testimony. State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356 (1978). This court cannot retry the facts or pass upon the credibility of the witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975)." State v. Hawthorne, 176 Conn. 367, 371, 407 A.2d 1001 (1978). The verdict returned in this ease showed that the jury chose to believe the defendants and not the plaintiff. In testing that verdict, the trial court had wide discretion. We conclude that it did not abuse that discretion in denying the plaintiff's motion to set aside the verdict. The court was wrong, however, in submitting the two separate verdict forms on the issue of damages to the jury for their consideration. The issue of liability had been previously decided by the court when it granted the plaintiff's motion for summary judgment, and, therefore, the jury had before them only a hearing in damages. The defendants were found liable by the court and the effect of their liability was "to establish the fact that a technical legal injury had been done by them to the plaintiff, and this entitled the plaintiff to at least nominal damages. Schmeltz v. Tracy, 119 Conn. 492, 496, 177 A. 520; Dewire v. Hanley, 79 Conn. 454, 458, 65 A. 573; Parker v. Griswold, 17 Conn. 288, 302." Keller v. Carone, 138 Conn. 405, 406-407, 85 A.2d 489 (1951); Dimmock v. New London, 157 Conn. 9, 15-16, 245 A.2d 569 (1968). This court, however, as a general rule will not reverse and grant a new trial for a mere failure to award nominal damages. Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973); Waicunas v. Macari, 151 Conn. 134, 139, 193 A.2d 709 (1963); Keller v. Carone, supra, 406-407; Went v. Schmidt, 117 Conn. 257, 259,167 A. 721 (1933); Beattie v. New York, N.H. & H. R. Co., 84 Conn. 555, 559, 80 A. 709 (1911). This case does not warrant an exception to the general rule; see Sessa v. Gigliotti, supra; therefore, it was not reversible error that the plaintiff was not awarded nominal damages. While it is advisable for some actions in negligence to be tried in two parts, i.e., one part as to liability and the second part as to damages (if liability is found on the part of the defendant); see annot., Tort — Separate Trial of Issues, 85 A.L.R.2d 9; this case points up the fact that confusion may result if a jury are given two verdict forms when considering damages. The purpose of separate determinations of liability and of damages is to simplify the process by limitation, not to distort it by elimination of one issue altogether. The choice between inconsistent verdict forms in a hearing on damages is not only misleading, but may also encourage the jury to eliminate even the nominal recovery required by a prior finding of liability. As indicated, under the circumstances of this case, we cannot upset the decision of the trial court denying the motion to set aside the verdiet on damages ; therefore, every effort should be made by the trial court in such cases to impress upon the jury the interdependence of the two issues of liability and of damages, and thereby guard against the return of a verdict that does not award damages for a technical legal wrong. Nominal damages may be a " 'mere peg to hang costs on' "; Stanton v. New York & E. R. Co., 59 Conn. 272, 282, 22 A. 300 (1890); but they are justified in a case such as this one where the issue of liability had been previously found for the plaintiff. There is no error. In this opinion the other judges concurred. Using the verdict form for the defendants, the jury returned their verdict as follows: "In this case the jury finds the issue as to damages for the defendants, Richard A. Abate and Rosario D. Abate." Although the plaintiff's counsel did not object to the use of the two verdict forms, we address this issue because of its importance. On the other hand, we have held that the invasion of a "substantial right" would compel this court to overturn the verdict and order a new trial. Beattie v. New York, N.H. & H. R. Co., 84 Conn. 555, 559-60, 80 A. 709 (1911). Traditionally, only the invasion of a property right has been accorded such substantiality; Maganini v. Coleman, 168 Conn. 362, 363-64, 362 A.2d 882 (1975) (violation of restrictive covenant creates exception to rule that verdict failing to award nominal damages for legal wrong will not be overturned; error and judgment directed for $25 nominal damages) ; Patalano v. Chabot, 139 Conn. 356, 362, 94 A.2d 15 (1952) (interference with easement creates exception to rule; error and judgment directed for $25 nominal damages) ; cf. Wright & FitzGerald, Connecticut Law of Torts § 170 (2d Ed. 1968) (at common law nominal damages recoverable for violation of real property rights, but not for invasion of other rights). Only the plaintiff's verdict form, addressed to the issue of damages, should have been submitted to the jury, and if the jury had failed to award any damages to the plaintiff, the court should then have directed them to return a verdiet in favor of the plaintiff for nominal damages.

Borden, J. The defendant appeals from the judgment of his conviction, after a jury trial, of three counts of aiding the sale of narcotics in violation of General Statutes § 21a-277 (a) and 53a-8. The dispositive issue is whether it was error for the trial judge, during cross-examination of the state's key witness, to comment on facts within his personal knowledge and outside the record as to whether a witness had been offered a "deal" in exchange for his testimony, and on whether the prosecutor had the ability to offer the witness promises in exchange for his testimony. We find error. Because the defendant did not properly raise this claim in the trial court, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The determinative issue in granting an Evans review is whether "the record adequately supports a claim that [the defendant] has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Liebowitz, 7 Conn. App. 403, 404, 509 A.2d 43 (1986), citing State v. Evans, supra, 70. The defendant's claim of a violation of a constellation of constitutional rights does raise an issue of fundamental constitutional dimension. For purposes of an Evans review, "it is also necessary that the record 'adequately supports [the] claim.' " (Emphasis in original.) State v. Liebowitz, supra, 405. The record in this case adequately supports the defendant's constitutional claim. The state's case against the defendant was that he supplied cocaine to William Deitch, who sold it to undercover officer Gary Hunt of the New Haven police department. Deitch testified that on May 5, May 12 and May 26,1983, he sold cocaine to Hunt, and that on each of these occasions the defendant supplied the cocaine to him. Hunt testified that the three transactions took place. He did not, however, have any personal knowledge that the defendant supplied the cocaine to Deitch. During the period of the transactions, both the defendant and Deitch were under surveillance by members of the New Haven police department. Detective Sergeant Carl Giannotti, a member of the surveillance team, testified that he observed the defendant and Deitch meeting prior to each drug transaction. None of the surveillance officers, however, observed an exchange of drugs or money between the defendant and Deitch. The defendant testified on his own behalf and denied supplying cocaine or any other drug to Deitch. He testified that he had purchased an automobile from Deitch and that Deitch had been dunning him to pay the money still owed on the car. While the defendant did not recall meeting with Deitch on May 5 or May 12,1983, he did remember meeting with him on May 26, 1983, to discuss the money still owed on the car. Thus, the only evidence presented at trial which directly linked the defendant with the three drug transactions was Deitch's testimony that the defendant was his supplier on each of the three occasions. Consequently, the credibility of Deitch was crucial. Deitch testified on direct examination that he had pleaded guilty to certain unspecified charges arising out of the narcotics transactions, that he was awaiting sentencing on these charges, that no promises had been made to him other than that his testimony would be taken into consideration by the sentencing judge, and that he was testifying in the hope that it would help him. On cross-examination, the defendant sought to impeach Deitch's credibility based on his motive and interest in testifying against the defendant, namely, that his testimony was motivated by a desire for leniency in connection with the charges pending against him. Deitch revealed that he had pleaded guilty to several charges of selling cocaine and possession of marihuana with intent to sell, and that he was facing a potential maximum sentence of sixty-seven years. Thereafter, the following colloquy occurred between the defense counsel and Deitch: "Q. And I believe the prosecution — I'm not sure whether the prosecution stated it or whether you told the prosecution. You told the prosecution that you were aware that if you testified satisfactorily to the prosecution in this trial, that it would affect your sentence. A. No promises were made to me. Q. No promises, but did they say it's a possibility? A. No promises were made to me. Q. No promises? A. Nothing at all. Q. Then why are you here?" At this point, the state objected to the defense counsel's characterization of Deitch's testimony, stating: "I object to this line of questioning. That is completely his representation of what the agreement is for this man's testimony. I have no control over his sentence. It doesn't have to satisfy me at all." After agreeing that the question of the defense counsel was "somewhat of a misrepresentation," the trial court stated the following: "I think we ought to clarify it for the purpose of the jury. The state has no control over the sentence of this individual. Indeed, I took the plea and I am the sentencing judge. The state has no control over any of the sentences, nor is there any deal for the sentence. The sentence is completely discretionary and up to myself." (Emphasis added.) Shortly thereafter, the court stated, "[t]he point I was making for the record and for the clarification of the jury is that the State can't promise [the witness] anything. The state cannot make it any better for him." (Emphasis added.) The defendant claims that the trial court, by its statements, violated a cluster of interconnected fundamental rights, principally his state and federal right to confront the witnesses against him, and his due process right to a fair trial. We agree. I The defendant claims that his right of confrontation was violated because the trial court's comments effectively foreclosed three areas of potential cross-examination of the state's key witness. First, the defendant claims that the statement that there was no deal between the state and the witness as to his pending sentence, based on the trial judge's personal knowledge outside the record, had the effect of unduly restricting the defendant's cross-examination of the witness in two areas of motive testimony: whether in fact a deal had been made; and whether the witness believed that, by testifying, he would be benefitted. Second, the defendant claims that the court's statement that the prosecution could not promise the witness anything with respect to his upcoming sentencing was legally incorrect and foreclosed defense inquiry into whether the prosecution had made any assurances in this regard. We conclude that the defendant's right of confrontation was not violated with regard to the first two areas of motive testimony. We agree with the defendant, however, that his right of confrontation was violated by the trial court's comments regarding whether the prosecution could promise him anything about his sentence. " 'Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." . To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to "expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses." Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).' " (Citations omitted.) State v. Privitera, 1 Conn. App. 709, 711-12, 476 A.2d 605 (1984), quoting State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). Cross-examination as to bias or motive is constitutionally protected. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). In a case where the only direct evidence linking the defendant with criminal activity is the testimony of an accomplice who has already pleaded guilty to charges and is awaiting sentencing, it is especially important that a defendant be permitted to search for an agreement between the state and the witness. Under these circumstances "it might be assumed that the [witness'] course would be such as would best serve his interest in the trouble in which he found himself." State v. Santello, 120 Conn. 486, 492, 181 A. 335 (1935). Even in the absence of an actual deal, such a witness may be motivated to testify by a desire to please the prosecution in an attempt to procure lenient treatment. United States v. Mayer, 556 F.2d 245, 248-49 (5th Cir. 1977). Thus, whether or not an actual agreement has been worked out, a witness may be cross-examined to show a belief or expectation of favorable treatment by the state. The trial court's comments, when examined in the context of the extensive cross-examination of Deitch, did not foreclose inquiry into these two areas. Our review of the entire cross-examination discloses that the defendant was afforded an adequate opportunity to inquire into the fact of whether a deal had been arranged with respect to Deitch's sentence, and into Deitch's motive for testifying. The defendant questioned Deitch on several occasions, both before and after the trial court's comments, on whether he had received any promises or been offered any deals. He also questioned Deitch on his motive for testifying. On at least two occasions, the defendant elicited from Deitch the statement that he hoped and believed that his testimony might help him at sentencing. Additionally, the court in its charge instructed the jury that they should consider the witness' motive for testifying in assessing his credibility. Thus, this aspect of the defendant's claim that he was not permitted cross-examination sufficient to satisfy the sixth amendment fails. The defendant was, however, effectively foreclosed from inquiring into the witness' motive for testifying based on a prosecutorial, as opposed to a judicial, promise or assurance. This foreclosure arose from the court's statement that the prosecution could not promise anything to the witness. As a statement of law, albeit incorrect; see text infra; the defendant could only perceive this as a ruling forbidding inquiry into this area. The court's statement was correct in the sense that the state cannot promise a witness a specific sentence in exchange for his testimony. The state can, however, make promises or assurances with respect to the position it will take at sentencing. Practice Book § 921, 922; see Szarwak v. Warden, 167 Conn. 10, 18, 355 A.2d 49 (1974). For example, the prosecution can promise to recommend a lenient sentence in exchange for a witness' testimony against a defendant. It can promise that it will, moreover, try to persuade the court to accept its recommendation of leniency, so that future similar promises to other persons will carry some credibility with them. The defendant was entitled to ask Deitch whether his hope for leniency from the court had been bolstered by assurances from the state that it would attempt to persuade the court to realize his hope. Because the defendant was effectively precluded from cross-examination in this area, and the jury may have thus been deprived of facts from which it could appropriately draw inferences concerning Deitch's reliability, we conclude that the defendant was denied his constitutional right of confrontation. II The defendant also claims that the trial court's comments violated his due process right to a fair trial. There are two interrelated aspects to this claim. First, he claims that the trial court's comment before the jury on a material fact, adverse to the defendant and based on the judge's personal knowledge, crossed the line of judicially permissible conduct, and had the unintended effect of improperly bolstering Deitch's credibility by corroborating his testimony. Closely related to this is the defendant's claim that the statement had the effect of improperly restricting the jury's consideration of Deitch's credibility, thus undermining the defendant's constitutional right to have all facts and issues of credibility determined by the jury. We agree. Due process requires that "there should be no questioning that appears to reject a defendant's credibility and implies judicial support of a prosecution witness' testimony. . 1 "The influence of the trial judge on the jury is necessarily and properly of great weight," Starry. 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.' " State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985). In State v. Fernandez, supra, the court held that the defendant was deprived of his right to a fair trial by the trial judge's "partisan" cross-examination of the only witness for the defense concerning his statement to the judge on a plea of guilty canvass. The court noted that whether a defendant's right to a fair trial has been violated must be determined on a "case by case basis." Id., 15. The facts found significant in Fernandez are remarkably similar to the present case. The key witness who was cross-examined by the trial judge during the state's cross-examination of him was a joint participant in the criminal activities for which the defendant was on trial. He had already pleaded guilty to charges arising from the crimes and was awaiting sentencing. The witness' credibility was a key issue in the case because if the jury chose to believe him, they could not consistently convict the defendant of the crimes charged. The judge who took the witness' guflty plea was the same judge who was presiding at the defendant's trial. The trial judge referred to the earlier plea session with the witness, albeit not on the basis of personal knowledge but rather by cross-examining him based on a copy of the plea transcript. The court in Fernandez found error in the defendant's convictions. The court noted that the credibility of the witness was directly implicated by the trial court's conduct, and that the defense theory of the case, dependent as it was on the jury's acceptance of the witness' testimony, "could not escape the tremor emanating from that examination by the trial judge." Id., 15. It is the combination of the jury's tendency to view the trial judge as its guiding light and the trial judge's conduct which may have been interpreted by the jury as an evaluation of Deitch's credibility, that created the error in this situation. By stating to the jury that he was the judge who took the witness' guilty plea and, further, based on his own personal knowledge, that there was in fact no deal made between the witness and prosecution with respect to the witness' testimony, the trial judge, as the state concedes, in effect bolstered the credibility of Deitch by judicially corroborating facts to which Deitch had already testified. It is likely that this inadvertently conveyed to the jury an impression that the judge was of the opinion that Deitch was telling the truth in his defense against the defendant's attack on his credibility. This seriously undermined the defendant's theory of defense which was, very simply, that Deitch was lying when he implicated the defendant as his supplier of cocaine and that he was doing so in order to help himself in his own pending cases. The defendant also claims that the trial court's statements transcended the bounds of legitimate comment so as effectively to preclude the independent determination of questions of fact and credibility which the defendant is entitled to have the jury make. More specifically, the defendant argues that the trial court, by its comments, took the determination of the witness' credibility from the jury on the issues of whether in fact there was a deal for the witness' testimony and whether the state had made any promises to the witness. We agree. The jurors are the "sole triers of fact and credibility." Davis v. Alaska, supra, 318. "[Ljitigants have a constitutional right to have issues of fact decided by the jury and not by the court." State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982), quoting Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954). "They are free to reject even uncontradicted testimony, if they do not find it credible . . . particularly in a criminal case." State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983). In State v. Santello, supra, a case involving facts very close to those in this case, our Supreme Court was faced with a similar claim. The defendant was charged with and convicted of murder. The evidence at trial revealed that two masked and armed men entered a club and, after a scuffle ensued, a person was shot and killed. The defendant denied any participation in the incident, claiming to have been at home when it took place. The state's key witness, Cosmo Scarpello, was a participant in the crime and testified that the defendant was present during the incident. Proof of the defendant's identity as a participant depended entirely on Scarpello's testimony. Id., 492. The defense counsel placed great reliance upon an intended claim that Scarpello was motivated to testify as he did by a hope or promise of leniency or clemency as to his own participation. Id., 492-93. The defense counsel repeatedly cross-examined Scarpello as to whether he had received promises of immunity or clemency and, upon an attempt to read from a newspaper statement containing information contradicting the witness' negative responses, the state's attorney made the following objection: "Now I object to any reading from the Nor-walk newspapers, Your Honor. If there is any privilege of exemption to be given to this man it comes from me, not from any reporter of the Norwalk newspapers. I can only say that no such promise has been made. " (Emphasis added.) Id., 489-90. The court held that this statement by counsel, not under oath, of a material fact pertinent to the issues, unsupported by the evidence, and prejudicial to the defendant without a cautionary instruction, constituted reversible error. Id., 490. The court noted that, despite Scarpello's testimony that no deals had been made, "it yet remained open to the defendant to claim that in these denials Scarpello was not worthy of credit and that in testifying as he did he was actuated by some such inducement." Id., 492-93. The court noted further that the effect on the jury of a statement by the state's attorney, because of the prestige and confidence pertaining to his office, gave the statement "a finality which decisively put an end to attack upon the credit of [the state's key witness] based upon any promise or assurance of exemption from prosecution, or similar concession." Id., 493. In effect, the determination of the witness' credibility with respect to his testimony on this fact was taken from the jury by the state's attorney's comment. When a statement corroborating a witness' testimony comes from the trial judge, as it did in this case, the influence on the jury is even greater. " 'The respectability and standing of [the trial judge] only serve to enhance the peril.' " (Citations omitted.) Id.; see State v. Fernandez, supra. A juror will be inclined to take the judicially corroborated fact as conclusively true. Since the defendant was entitled to have the jury determine Deitch's credibility and to disbelieve his statement that there was no deal; State v. Santello, supra; the trial court's flat assertion corroborating the testimony violated the defendant's right to a fair trial. Ill The state argues that if error is found, it is nonetheless harmless. Our cases hold that when error is of constitutional dimension it is reversible unless the state proves the error harmless beyond a reasonable doubt. State v. Mebane, 8 Conn. App. 63, 69, 511 A.2d 359 (1986). In this case, the state has not sustained its burden. This is not a situation where "the evidence against the accused is so overwhelming that we can conclude as a matter of law that the jury's verdict was not influenced [by the trial court's comment]." State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). On the contrary, the only direct evidence linking the defendant to the criminal activities with which he was charged was the testimony of the state's key witness, and it is precisely this testimony which was supported by the trial court's statements. The statements had a multifaceted impact on the jury's assessment of Deitch's credibility. On the one hand, the jury was prevented from hearing evidence which they had a right to hear concerning his motive to testify which might have impacted on their assessment of his credibility. On the other hand, they were presented with a statement by the trial court based on personal knowledge which corroborated his testimony and which they should not properly have considered in evaluating his credibility. Moreover, they were directed by the court, during both cross-examination of the witness and during the jury charge, to find that there was in fact no deal worked out for the testimony of the witness, thus bolstering his credibility. In this case, we are not persuaded beyond a reasonable doubt that the standard instruction to the jury that they are the sole judges of credibility rendered the error harmless. Our resolution of this claim of the defendant is dis-positive. Although he raises other claims of error of an evidentiary nature, it is not clear that they 'will recur in the new trial. We therefore decline to review them. There is error, the judgment is set aside and the case is remanded for a new trial. In this opinion the other judges concurred. Although the defendant relies on both the sixth and fourteenth amendments to the United States constitution and article first, § 8 and 19, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution, as a basis for disparate treatment between the two. We see no reason to undertake such an analysis. See State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986). The defendant claims that an aspect of the right to trial by jury is the right to have issues of fact and credibility determined by the jury. This right, however, has been viewed as a component of the right to a fair trial; State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982); and thus does not in this case require separate analysis under the rubric of the right to trial by jury. The defendant in his brief concedes, and we agree, that if the trial judge had confined his statements to the initial legal point that it is the judge and not the prosecutor who determines an individual's sentence, there would be no error. It is permissible to inform the jury that the judge, not the state's attorney, imposes the sentence; otherwise the jury might think that a particular suggested deal between the prosecutor and witness was even better than it was. United States v. Rosson, 441 F.2d 242, 244 (5th Cir. 1971); see State v. Mendill, 141 Conn. 360, 363, 106 A.2d 178 (1954). The court charged as follows: "If you feel that he may, in his own mind, be looking for or hoping for some favors in the handling of his own situation and, therefore, his testimony may be colored because of such thoughts, then, of course, you will give such weight to his testimony or no weight to it at all as may appear appropriate to you under all the circumstances."

Per Curiam. The issue on this appeal is whether the trial court erred in ordering a judgment awarding the plaintiff damages and reasonable attorney's fees based upon certain defaults by the defendant as to four promissory notes and a Master Charge account, and overdrafts of a checking account. In his answer to the plaintiff's complaint, the defendant filed a general denial and raised several special defenses and a counterclaim, but did not challenge the execution of any of the instruments. As to counts one, three, four and five, all of which involved promissory notes, § 42a-3-307 (2) of the General Statutes is dispositive. That section provides that: "When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense." The execution of the instruments has not been challenged by the defendant. That the instruments are negotiable is beyond question. They are signed by the maker, contain an unconditional promise to pay a sum certain in money, and are payable at a definite time and to order. General Statutes § 42a-3-104 (1). The plaintiff was the holder, the last person in possession and the person to whom they were issued. General Statutes § 42a-l-201 (20). Upon this showing, it was incumbent upon the defendant to allege and prove a defense. General Statutes § 42a-3-307 (2). The defendant has failed to allege or prove payment or set forth a defense to these counts. By way of pleading, however, the defendant alleged that on July 19, 1976, he entered into an oral novation with the plaintiff whereby the indebtedness in counts one and two were to be embodied in a new note. The court, however, found the agreement concerning renewals to be conditioned upon the payment of interest in advance and that the "[defendant executed two of three notes and returned them to the bank without any interest payment. As a result, they never became effective. A third note never was executed or returned." The defendant failed to establish novation. In the sixth count, the plaintiff alleged that the defendant failed to make the Master Charge payment due on July 6, 1976. Payment, even though nonpayment has been alleged by the plaintiff, must be specially pleaded as a defense. Practice Book, 1978, § 164; 1 Stephenson, Conn. Civ. Proc. (2d Ed. 1970) § 89c. In his answer the defendant failed to plead payment. Furthermore, at the trial the defendant could not state whether he had paid the amount due on July 6. Lastly, the plaintiff sought recovery of overdrafts. The drawing of a cheek by a depositor in a sum greater than he has on deposit implies the depositor's promise to repay the bank the amount by which the account is overdrawn. Bailey, Brady on Bank Checks (5th Ed. 1979) § 17.5; U.C.C. § 4-401, official comment No. 1, 2A U.L.A. Here, the defendant did not specially plead any defense or offer any evidence that the overdraft had been paid. In fact, he admitted the amount of the overdraft balance. There is no error. Count two against the defendant Roy Orbell was withdrawn.

The petition by the defendant J. William Burns for certification for appeal from the Appellate Court, 5 Conn. App. 663, is denied.

Peteks, J. This case arises out of the sale of a new one-family house by its builder, the defendant John J. Healy, to the plaintiff, Ronald K. Johnson. The plaintiff bought the house, located in Naugatuck, in 1965, for $17,000. Between 1968 and 1971, the house settled in such a way as to cause major displacements in various foundation walls, and substantial damage to the sewer lines. In 1971, the plaintiff instituted this law suit alleging misrepresentation and negligence on the part of the defendant builder-vendor. The court below found for the plaintiff on the claims of misrepresentation, for the defendant on the claims of negligence, and assessed damages. The trial court rendered judgment for the plaintiff and both parties have appealed. I The claims of misrepresentation are based on the following facts, which are amply supported by the evidence below. As part of the negotiations leading to the contract of sale of the house, the plaintiff inquired about the quality of its construction. The defendant replied that the house was made of the best material, that he had built it, and that there was nothing wrong with it. These representations were relied upon by the plaintiff and induced him to purchase the house. The damage which the house sustained because of its uneven settlement was due to improper fill which had been placed on the lot beneath the building at some time before the defendant bought the lot, as a building lot, in 1963. On the basis of these findings, the trial court concluded that the defendant had made an express warranty coextensive with the doctrine of implied warranty of workmanship and habitability in eases involving the sale of new homes by a builder. The defendant assigns as error the trial court's refusal to find additional facts claimed to be admitted or undisputed. As we have repeatedly held, this court will not add findings of fact which are not material and could not affect the result reached below. Rushchak v. West Haven, 167 Conn. 564, 566, 356 A.2d 104 (1975); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 304, 397 A.2d 1367 (1978). The defendant also assigns as error the trial court's conclusion that the defendant bore responsibility for a condition of which he had no knowledge, actual or constructive. The trial court found that the defendant's representations, although innocent, amounted to an express warranty of workmanlike construction and fitness for habitation. Since those representations reasonably induced reliance in the purchase of the house, the defendant was held liable despite the absence of written warranties concerning the fitness or condition of the home in the contract of sale or the deed of conveyance. The scope of liability for innocent misrepresentation has varied with time and with context, in American law generally and in this court. Traditionally, no cause of action lay in contract for damages for innocent misrepresentation; if the plaintiff could establish reliance on a material innocent misstatement, he could sue for rescission, and avoid the contract, but he could not get affirmative relief. See Restatement (Second), Contracts § 304, 306, and Introductory Note to Chapter 13 (Tentative Draft No. 11,1976). In tort, the basis of responsibility, although at first undifferentiated, was narrowed, at the end of the 19th century, to intentional misconduct, and only gradually expanded, in this century, to permit recovery in damages for negligent misstatements. Prosser, Torts (4th Ed. 1971) § 107. At the same time, liability in warranty, that curious hybrid of tort and contract law, became firmly established, no later than the promulgation of the Uniform Sales Act in 1906. In contracts for the sale of tangible chattels, express warranty encompasses material representations which are false, without regard to the state of mind or the due care of the person making the representation. For breach of express warranty, the injured plaintiff has always been entitled to choose between rescission and damages. Although the description of warranty liability has undergone clarification in the Uniform Commercial Code, which supersedes the Uniform Sales Act, these basic remedial principles remain unaffected. At the same time, liability in tort, even for misrepresentations which are innocent, has come to be the emergent rule for transactions that involve a commercial exchange. See Restatement (Second), Torts § 552C (1977); Prosser, Torts (4th Ed. 1971) § 107, pp. 710-14. In Connecticut law, strict liability for innocent misrepresentation in the sale of goods is well established. As long ago as Bartholomew v. Bushnell, 20 Conn. 271 (1850), this court held (p. 275) that "[i]f a man sell a horse to another, and expressly warrant him to be sound, the contract is broken, if the horse prove otherwise. The purchaser, in such case, relies upon the contract; and it is immaterial to him, whether the vendor did, or did not, know of the unsoundness of the horse. In either case, he is entitled to recover all the damages, which he has sustained." For similar reasons, strict liability for innocent misrepresentation was imposed in a construction contract in E. & F. Construction Co. v. Stamford, 114 Conn. 250, 158 A. 551 (1932). In Stamford, the defendant's erroneous description of subsurface conditions materially affected the plaintiff's excavation costs. This court held the misrepresentation to be actionable, even though there was no allegation of fraud or bad faith, because it was false and misleading, "in analogy to the right of a vendee to elect to retain goods which are not as warranted, and to recover damages for the breach of warranty. [Citations omitted.]" Id., 258. Stamford quotes, with approval, from 3 Williston, Contracts § 1512, p. 2689 (1920): " 'If a man makes a statement in regard to a matter upon which his hearer may reasonably suppose he has the means of information, . . . and the statement is made as part of a business transaction, or to induce action from which the speaker expects to gain an advantage, he should be held liable for the consequences of reliance upon his misstatement.' " Id., 259. Bartholomew and Stamford together malee it clear that liability for innocent misrepresentation is not a novelty in this state, that such liability is based on principles of warranty, and that such warranty law is not confined to contracts for the sale of goods. Extension of warranty liability for innocent misrepresentation to a builder-vendor who sells a new home is, as a matter of policy, consistent with the developing law of vendor and purchaser generally. In the not too distant past, it is true, caveat emptor dominated the law of real estate. See, e.g., Levy v. C. Young Construction Co., Inc., 46 N.J. Super. 293, 134 A.2d 717 (1957), affirmed on other grounds, 26 N.J. 330, 139 A.2d 738 (1958). In this state, however, caveat emptor has not been allowed to stand in the way of imposition of liability for negligent misrepresentations. See Warman v. Delaney, 148 Conn. 469, 172 A.2d 188 (1961), and Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 232 A.2d 307 (1967). Furthermore, Scribner v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975), recognized the propriety of claims for negligence, express warranty, and, in dictum, implied warranty, and thus effectively and explicitly ended the role of caveat emptor in sales of new homes by builder-vendors. . On the facts of the case before us, as the trial court concluded, liability for innocent misrepresentation is entirely appropriate. Although the defendant vendor had built no houses other than this one, this information was not disclosed to the buyer until the sale had been concluded; the defendant had been otherwise engaged in the real estate business for about thirty years. Although indefinite, the defendant's statement that there was "nothing wrong" with the house could reasonably have been heard by the plaintiff as an assertion that the defendant had sufficient factual information to justify his general opinion about the quality of the house. In context, this statement of opinion could reasonably have induced reliance. See Restatement (Second), Contracts §310, 311 (Tentative Draft No. 11, 1976). II The claims for negligence in construction depend upon a showing by the plaintiff that the defendant knew, or should have known, that the subsurface conditions of the building were substandard, and thus required special plans for the footings and the foundation of the house that he was building. The trial court found that the defendant had no actual knowledge of the soil defects, a finding which the plaintiff does not directly attack. The issue therefore is the defendant's constructive notice of the lot's instability despite its apparent content of standard bank run gravel. It is significant that the building inspector, who approved the construction plans, was found to have had no notice. At the time of this building project, test borings to determine soil suitability were not customary for residential construction. Although there was testimony which might have supported a different finding, the trial court was not bound to accept as persuasive even testimony that was not directly contradicted. Yale University v. New Haven, 169 Conn. 454, 463, 363 A.2d 1108 (1975); Schwarts v. Town Planning & Zoning Commission, 168 Conn. 285, 291, 362 A.2d 1378 (1975). Its conclusion of absence of notice is amply supported by other evidence and must therefore stand. Without notice, the claims for negli genee are unsustainable. Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977); Scribner v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975). The plaintiff's effort in this court to sidestep the issue of notice by alleging violation of the Naugatuck Building Code is equally unavailing. The testimony of the building inspector did not categorically establish a violation; at best, as a matter of hindsight, the inspector indicated that, had he then known of the actual subsoil conditions, he would have refused a permit. In the court below, this testimony was offered and considered as part of the overall issue of notice, and there is no basis for this court, on this testimony, to refuse to accept the conclusions of the trial court. Ill The assessment of damages in the trial court was an award in the amount of $5000 for breach of warranties and not for negligence. The plaintiff attacks this award as inadequate, since it does not measure damages by the cost of repairs. The defendant attacks the award as excessive because it does not measure the difference between the value of the property as warranted and as sold. The plaintiff's claim for damages was twofold: $882.50 for sewer repairs occasioned by the settling of the foundation which damaged the sewer line, and $27,150 as an estimate, procured in 1971, for the cost of constructing a new foundation. The court specifically found that the cost of replacing the foundation would in all likelihood exceed the value of the house, originally purchased for $17,000. Apart from the sewer repair costs, the plaintiff incurred, from 1965 to 1970, additional expenditures of $5112 in connection with the house. These expenses were largely, but not exclusively, incurred in making repairs. The trial court concluded that, since a substantial part of the $5112 was for repairs attributable to the faulty settlement of the house, he would allocate to damages an amount which, when added to the $882.50 sewer costs, would produce a total recovery of $5000. The court noted that, in.late 1971, when the plaintiff first complained to the defendant about problems with the house, the defendant offered to repurchase the property for the purchase price of $17,000 and the expense of repairs, then represented by the plaintiff to approximate $5000. The general rule for measurement of damages upon breach of warranty is to award the prevailing party such compensation as will place him in the same position as he would have enjoyed had the property been as warranted. This is the general rule of contract law, and was discussed extensively, and applied to the sale of a new residential house, in Levesque v. D & M Builders, Inc., 170 Conn. 177, 365 A.2d 1216 (1976). Levesque involved a buyer who wanted to relocate a house misplaced on a building lot. This court refused to permit relocation costs of $10,800 to be awarded for breach of contract and warranty, when the original contract price had been $22,600. Id., 182. Levesque adopts a rule that limits damages to the diminished value of the building whenever the cost of repairs is dramatically larger than is the difference in value. Id., 180-82. Although the costs of repair may more precisely place the injured party in the same physical position as full performance, policy dictates limitation to diminution of value to avoid unreasonable economic waste. It is clear that Levesque for bids recovery of the costs of a new foundation in the case before us, since the price discrepancy between reconstruction cost and contract price is even larger than it was in Levesque. Moreover, Levesque involved a defendant whose default could hardly be characterized as innocent. Contract restraints are particularly appropriate when damages are awarded, as in this ease, for misrepresentations which, though actionable, are totally innocent. See Hill, "Damages for Innocent Misrepresentation," 73 Colum. L. Rev. 679 (1973), and Hill, "Breach of Contract as a Tort," 74 Colum. L. Rev. 40 (1974). The trial court was therefore correct in refusing to measure damages by the $27,150 estimated to be required to replace the foundation. The proper test for damages was the difference in value between the property had it been as represented and the property as it actually was. This standard is notoriously more difficult to apply than to state. Reasonable costs of repair may therefore sometimes furnish a reasonable approximation of diminished value. Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348-49, 232 A.2d 307 (1967); Levesque v. D & M Builders, Inc., 170 Conn. 177, 182, 365 A.2d 1216 (1976). Reliance expenses often serve as a surrogate for damages otherwise inaccessible to proof. See the classic articles, Fuller & Perdue, "The Reliance Interest in Contract Damages: 1," 46 Yale L.J. 52 (1936-1937), and Fuller & Perdue, "The Reliance Interest in Contract Damages: 2," 46 Yale L.J. 373 (1936-1937). The trial court's reference to the $5112 expended by the plaintiff with regard to the house would have been an acceptable resource for the inquiry into diminution of value, if only the $5112 list had accurately distinguished between expenses for repairs and expenses for improvements. To the extent that reliance expenses are probative of losses incurred because of breach, they must be expenses demonstrably incident to breach. The tender of a particular sum by the defendant in negotiation of an aborted settlement is no more dispositive than is the plaintiff's unwillingness to agree to a rescission and to insist, as he had a right to do, on affirmative relief in damages. Under these circumstances, the court's award of damages was in error, the judgment is set aside, and the case is remanded with direction to render judgment for the plaintiff to recover such damages as he may prove on a new trial limited to the issue of damages. In this opinion the other judges concurred. Uniform Commercial Code § 2-313 et seq. replace the corresponding sections, Uniform Sales Act, Public Acts 1907, c. 212 § 12 et seq.

Hull, J. This opinion is a memorandum of decision on the defendants' motion to dismiss the plaintiff's appeal. The named defendant and the defendant Stanley Wilson, the named defendant's planning and zoning enforcement officer, move to dismiss the plaintiff's appeal on the ground that it is, in essence, an appeal from a decision upon an appeal from a zoning board of appeals which is permitted only after the granting of certification by this court pursuant to Gen eral Statutes § 8-8 (g), and that such certification was denied by this court on May 8, 1986. The plaintiff argues that certification is not required because he is not appealing from a zoning decision but rather from the judgment of the Superior Court denying his application for a writ of mandamus concerning this matter. He asserts, therefore, that his direct appeal is proper. We turn to the trial court's memorandum of decision for the necessary background. On January 11, 1979, the plaintiff submitted an application for subdivision approval and a subdivision plan dated August 8,1978, to the Bozrah planning and zoning commission. The application was denied by the commission on June 14, 1979, and the plaintiff appealed to the Superior Court. On April 16, 1982, a judgment by stipulation approving the subdivision was rendered by the court. In the interim, on May 8, 1981, a "revised subdivision plan" was drawn up. That revised subdivision plan was signed by the chairman of the commission on September 29, 1983, and was recorded the same day with the town clerk. On September 27,1984, the plaintiff applied for a building and zoning permit. On October 3, 1984, Wilson denied the application apparently pursuant to General Statutes § 8-25 (a) which requires that "[a]ny plan for subdivision shall, upon approval . be filed or recorded by the applicant in the office of the town clerk within ninety days of the date such plan is delivered to the applicant . . . and any plan not so filed or recorded within the prescribed time shall become null and void . . . ." (Emphasis added.) The plaintiff appealed to the named defendant, which denied the plaintiffs appeal on December 29, 1984. The plaintiff then appealed to the Superior Court alleging that he was aggrieved by the defendant's decision and that the named defendant had acted illegally, arbitrarily and in abuse of its discretion by denying his application. In his complaint, dated January 7, 1985, headed "Appeal from Zoning Board of Appeals and Request for Order of Mandamus," the plaintiff claimed that as a matter of law his application for a building permit was wrongfully denied because he had complied with General Statutes § 8-25. He asserted at trial that his revised subdivision plan dated May 8, 1981, was approved when he obtained the signature of the chairman of the planning and zoning commission on September 29,1983. Thus, he argued that because the plan was recorded with the town clerk on the same day, it was in compliance with the ninety day requirement of General Statutes § 8-25 and, therefore, valid. Accordingly, in his prayer for relief he requested (1) an order from the trial court reversing the decision of the named defendant and (2) a writ of mandamus ordering Wilson to grant his application for a building and zoning permit. The trial court concluded that the plaintiff had not shown that the August 8,1978 plan was filed with the town clerk within ninety days from April 16,1982, the date of the stipulated judgment, which the court deemed to be the date the subdivision was approved. It concluded, therefore, that the subdivision plan was null and void pursuant to General Statutes § 8-25. The court also rejected the plaintiff's claim that his May 8, 1981, subdivision plan was a "resubdivision" under General Statutes § 8-18, which defines resubdivision as a change in a map of an approved or recorded subdivision. The court reasoned that since the 1978 subdivision plan was null and void under General Statutes § 8-25, the May 8, 1981 plan was not a change "in a map of an approved or recorded subdivision." The court also stated that even if it were to deem the May 8,1981 map a resubdivision, the commission could not have approved it since the plaintiff presented no evidence that the commission held a public hearing on the "resubdivision" as required by General Statutes § 8-26. Finally, the court concluded that other technical requirements of the Bozrah subdivision regulations were not met. The court dismissed the appeal, and the plaintiffs petition for certification to appeal from that judgment was denied by this court on May 8, 1986. It is clear from this factual background that the dis-positive issue in this motion to dismiss is whether an appeal to this court from a denial of a request for a mandamus in a zoning matter has a separate life or falls with the underlying zoning appeal on which it is based. The plaintiff argues that two cases weigh in favor of the conclusion that a separate appeal from the denial of mandamus lies under the facts and circumstances of this case: Camm v. Hart, 6 Conn. App. 284, 504 A.2d 1388 (1986), and Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680-81, 495 A.2d 268 (1985). The defendant in Camm appealed from the granting of a supplemental judgment of mandamus in favor of the plaintiffs, arising out of a zoning dispute. The plaintiffs, in addition to bringing the action which resulted in the supplemental judgment which the defendants challenged, also brought an appeal of the matter to the zoning board of appeals. Their appeal to the Superior Court from the board's action was still pending when the defendant appealed to this court. In our decision, this court noted that "the availability of this zoning appeal alone would not necessarily bar the plaintiffs from relief by mandamus to which they are otherwise entitled. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680-81, 495 A.2d 268 (1985)." Camm v. Hart, supra 286-87 n.3. In Merlo v. Planning & Zoning Commission, supra, the plaintiff had sought a writ of mandamus to compel the defendant planning and zoning commission to issue a certificate of approval of a subdivision plan. She claimed that her plan was automatically approved by operation of law because of the commission's failure to act within the sixty-five day limit set in General Statutes § 8-26 and 8-26d. The trial court disagreed, concluding that the commission had acted within the requisite time limit by disapproving the application when it defeated a motion to approve the plan. Accordingly, the trial court rendered judgment in the commission's favor and the plaintiff appealed to this court. We set aside the judgment of the trial court; see Merlo v. Planning & Zoning Commission, 1 Conn. App. 621, 474 A.2d 477 (1984); and the commission's petition for certification to our Supreme Court was granted. The Supreme Court reversed the judgment of this court, and, in so doing, discussed the issue involved here, "a jurisdictional issue concerning the propriety of mandamus as a remedy where there is a statutory appeal available, such as that pending, in which a plaintiff includes as one ground for relief essentially the same claim presented in the mandamus action." (Emphasis added.) Merlo v. Planning & Zoning Commission, supra, 680. The court noted that "[t]he commission relies on the principle that 'when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.' Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); see Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984). With respect to the extraordinary writ of mandamus, it is well established that an essential prerequisite for issuance of the writ is the absence of any other suffi cient remedy. Juliano v. Farrell, 196 Conn. 283, 286, 491 A.2d 187 (1985); Kays, Inc. v. Board of Tax Review, 170 Conn. 477, 480, 365 A.2d 1207 (1976); Milford Board of Education Assn. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1975)." Merlo v. Planning & Zoning Commission, supra, 680. The court rejected the commission's arguments and, in so doing, suggested two situations in which jurisdiction over both actions might exist. The court indicated: "As the Appellate Court noted, this court in several cases has implicitly approved mandamus as an appropriate remedy where it is claimed that a subdivision plan has been automatically approved pursuant to § 8-26 because of the failure of a planning commission to perform its statutory duty within the prescribed time. M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 591 (1982); Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981); Viking Construction Co. v. Planning Commission, 181 Conn. 243, 435 A.2d 29 (1980). In Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984), we held that the pendency of a zoning appeal, 'which could do no more than secure approval of the coastal site plan, which already had been approved by operation of law,' did not preclude resort to the more expeditious and effective remedy of mandamus in order to 'vindicate the plaintiffs' right to the immediate issuance of a building permit.' The situation is similar in this case, where the plaintiff claims that her subdivision plan has been approved pursuant to § 8-26 by virtue of the inaction of the commission. If the plan has been approved by operation of law, as she contends, her right to certification of its approval by the commission can most directly, completely and expeditiously be effectuated by mandamus. See State ex rel. Brooks v. Hitchcock, 33 Conn. Sup. 686, 690-91, 367 A.2d 692 (1976)." (Footnotes omitted.) Merlo v. Planning & Zoning Commission, supra, 680-81. The Supreme Court in Merlo also noted another situation where mandamus would be appropriate even though there was a possible remedy via appeal: "Since a court upon appeal from a decision of a planning commission has authority only to 'review, revoke, modify or affirm any act of such commission,' it appears that ancillary relief in some form would be necessary where a commission refuses to certify a plan that has been approved." Merlo v. Planning & Zoning Commission, supra, 681 n.5. We conclude that neither Camm nor Merlo supports the plaintiff's position under the facts and circumstances of this case. In Camm, since the zoning appeal was pending, the underpinning of the mandamus action had not yet been ripped out. In Merlo, the plaintiff sought only a mandamus to achieve automatic approval, and, as the Supreme Court made clear, such a remedy was appropriate as a matter of mandamus jurisdictional law. The Merlo mandamus action did not rest on a zoning appeal foundation. In Camm, that foundation was still standing. In this case, the zoning appeal had previously been denied. The request for a mandamus in this case is logically dependent on the viability of the zoning appeal. It has no life of its own as the similar request did have in Merlo. The trial court in this case stated in the first sentence of its memorandum of decision that "[tjhis is an appeal from a decision of the Bozrah zoning board of appeals (board) denying plaintiff's application for a building permit and zoning permit." The trial court then discussed the appeal without mention of the mandamus petition, and the plaintiff did not seek articulation in this regard. See Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). The zoning appeal to the trial court did not allege the necessary requisites for the granting of a writ of mandamus, nor did the plaintiff prove them. Thus, not only did the plaintiff not prove a "clear legal right to mandamus," the trial court found he had no right to the relief requested when it dismissed his zoning appeal. In Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 480 A.2d 584 (1984), we considered combined appeals involving a zoning appeal and a petition for mandamus arising out of a similar factual background. In the first appeal, the plaintiff Allied appealed to this court from the judgment of the Superior Court which dismissed its administrative appeal from the town planning and zoning commission's denial of its application for site plan approval. Savin Brothers, Inc., the plaintiff in the companion case, had contracted to sell the subject property to Allied contingent on Allied's obtaining the site plan approval. Savin appealed to this court from the Superior Court's denial of its petition for a writ of mandamus to compel the commission to approve the application. We upheld the trial court's dismissal of the administrative appeal in the first case. We then stated: "Since we have concluded that Allied had no statutory right of appeal, we have negated the court's reason for denying Savin's petition for a writ of mandamus, i.e., that Savin had an adequate remedy at law, to wit, the administrative appeal." Allied Plywood, Inc., v. Planning & Zoning Commission, supra, 509-10. We then followed the logical path by concluding that, since the reason for the denial of the mandamus petition had been dismissed, we had to search the record to see if mandamus was otherwise justified. After so doing, we concluded that the mandamus should have been granted. Allied Plywood thus exemplified one of the possible interrelationships between the two remedies. In that situation, the dismissal of the related zoning appeal mandated the granting of the petition for mandamus, but only because Savin had established a clear legal right to mandamus. The exact opposite is true in the present case where the trial court had found that the plaintiff had no right and this court denied further appellate review of that conclusion. Echo Four v. Hill, 3 Conn. App. 118, 485 A.2d 926 (1985), is relevant to this case. The plaintiffs brought suit seeking a declaratory judgment finding certain zoning regulations invalid and seeking a mandamus ordering the named defendant building and zoning inspector to issue a certificate of occupancy for certain premises owned by the plaintiffs. That certification had been denied because of the pertinent regulations. The defendants appealed from the judgments rendered and challenged the granting of the twin relief sought. This court found that the trial court lacked jurisdiction to render the declaratory judgment because of the absence of notice to all interested parties. We also determined that the mandamus action was inextricably intertwined with the declaratory judgment action and held that "[t]he mandamus judgment is dependent upon the declaratory judgment and must fall with it. Without the judgment that the pertinent zoning regulations are invalid there is no basis for the issuance of the mandamus." Echo Four v. Hill, supra, 125. In this case, the dimissal of the plaintiffs zoning appeal, and the subsequent denial of certification to appeal that judgment, has removed any basis for a writ of mandamus. When we observe an attempted "leap frog" by way of mandamus over the certification requirement in zoning appeals, we must stop the matter in midair. Otherwise, the certification requirement of General Statutes § 8-8 (g) could be hopped over merely by tacking the "mandamus" label on the prayer for relief in a zoning appeal. The defendants' motion to dismiss the plaintiff's appeal is granted. In this opinion the other judges concurred. The defendant Wilson carries various titles in different zoning capacities. For simplicity we have chosen to label him by one of them. General Statutes § 8-8 (g) provides: There shall be no right to further review except to the appellate court by certification for review, upon the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court."

Per Curiam. The plaintiff takes this appeal from the judgment rendered upon the trial court's dismissal of his medical malpractice action pursuant to Practice Book § 251. This case appeared on the dormancy list pursuant to Practice Book § 251. A notice of such list was sent to the plaintiff's counsel and it contained the direction that "COUNSEL ARE NOT REQUIRED TO APPEAR AT THE CALL OF CASES EXCEPT TO REQUEST AN EXEMPTION FROM COMPLIANCE WITH THE . . . COURT ORDER," and a warning that these cases will be dismissed "unless they are withdrawn, disposed of by final judgment, claimed to a trial list, or exempted for a good cause." The plaintiff did not appear at the call of the dormant cases on the assigned day to request an exemption. Nor did he request an exemption thereafter despite the fact that he had three months within which to do so. In addition, after the case was dismissed, he never moved to set aside the dismissal. Our review of the record and briefs indicates that the plaintiff's claim that the court erred in dismissing this action pursuant to Practice Book § 251 is without merit. There is no error.

Daly, J. The plaintiff instituted this action to seek custody of his minor daughter. The mother and the maternal grandmother of the child are the defendants. From the judgment of the trial court awarding custody to the plaintiff with reasonable visitation to the grandmother, this appeal ensued. The facts do not appear to be in dispute. On September 11,1979, a daughter was born to the plaintiff and the child's mother, who were nineteen and sixteen years old respectively at the time. The parents were never married but the plaintiff acknowledged paternity of the child. The plaintiff attended the University of Connecticut from September, 1978, until his graduation in May, 1982, when he received a B.S. degree in business administration. During his undergraduate years, the plaintiff maintained a relationship with the child. The mother has led a nomadic existence and the child has been under the care of the defendant grandmother since 1983. Because the grandmother, age forty-two, has been employed full time, she was obliged to obtain aid to dependent children to pay for weekday child care. In June, 1983, the plaintiff became employed as a psychiatric aide in a community health center, and was married in December, 1984. The plaintiff's wife is employed as an assistant manager of a department store and is amenable to becoming a stepmother. The grandmother has been satisfactorily caring for the child with sporadic appearances by the mother. In 1984, the plaintiff had difficulty in exercising his visitation rights and the situation became exacerbated. This custody action followed. Both parties provide suitable accommodations for the child and the trial court found that both the grandmother and the plaintiff were fit and capable of caring for the child. The family relations officer recommended that the defendant grandmother be awarded custody. The trial court awarded custody to the plaintiff with reasonable visitation rights accorded to the grandmother. The court gave no visitation rights to the defendant mother. The defendant mother appealed, claiming that the trial court erred in granting custody to the plaintiff when it was in the best interests of the child to remain with the defendant grandmother. The defendant mother claims that the trial court abused its discretion by reaching a conclusion which is not supported by the evidence. The trial court may exercise broad discretion to determine what is in the best interests of the child. Our review in cases involving family matters is limited and is warranted only if the trial court clearly abused its discretion. Cappetta v. Cappetta, 196 Conn. 10,16-17, 490 A.2d 996 (1985); Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978); Evans v. Santoro, 6 Conn. App. 707, 714, 507 A.2d 1007 (1986). Our authority cannot be substituted for the authority of the trial court because of a mere difference of opinion, and, unless there is a clear abuse of discretion, our interference with the trial court's action is unwarranted. Presutti v. Presutti, 181 Conn. 622, 627,436 A.2d 299 (1980). In a controversy between a parent and a stranger, the parent has the stronger right to custody unless the child's welfare clearly requires that custody be placed in the stranger. Hao Thi Popp v. Lucas, 182 Conn. 545, 551, 438 A.2d 755 (1980). "The term 'stranger' means anyone not a parent. It may include relatives, friends, or child care agencies." Id., 551 n.3; In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662 n.12, 420 A.2d 875 (1979). Because the trial court is in a better position than the Appellate Court to assess the surrounding circumstances, appearance and demeanor of the parties in a domestic relations matter, its decision should not be disturbed unless it abused its discretion; every reasonable presumption should be given in favor of its correctness. Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979); Holden & Daly, Connecticut Evidence § 35, pp. 62-64. The defendant grandmother relied heavily on the recommendation of the family relations officer that custody be awarded to the grandmother. "We have never held, and decline now to hold, that a trial court is bound to accept the expert opinion of a family relations officer. As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Yontef v. Yontef 185 Conn. 275, 281, 440 A.2d 899 (1981). The defendant mother made no showing legally sufficient to require reversal of the trial court's custody order. The trial court found that the plaintiff was a fit custodial parent who enjoyed a positive relationship with his child and felt that contact should be maintained with the grandmother. It is the trial court that must exercise its discretion to determine what is in the best interests of a child. On the record before us, we do not find that the trial court abused its discretion by awarding custody to the plaintiff. There is no error. In this opinion the other judges concurred. Subsequent to oral argument in this court, the defendant mother moved to reargue pursuant to Practice Book § 3111H on the ground that the trial court lacked subject matter jurisdiction because the action was not commenced as a habeas corpus action as required by General Statutes § 46b-1 (8). We deny the motion to reargue. General Statutes § 46b-l (8) provides that "[mjatters within the jurisdiction of the superior court deemed to be family relations matters shall be matters affecting or involving . (8) habeas corpus and other proceedings to determine the custody and visitation of children . " (Emphasis added.) Thus, while habeas corpus is the usual method of bringing a custody and visitation claim before the court; see, e.g., Evans v. Santoro, 6 Conn. App. 707, 709, 507 A.2d 1007 (1986); it is not the exclusive method, and the court had subject matter jurisdiction to entertain this action.

Spallone, J. The named defendant state of Connecticut is appealing from the judgment of the trial court rendered after the acceptance of the report of an attorney state trial referee. In his report, which was accepted in full by the trial court, the attorney trial referee found the following facts. On September 12, 1982, at approximately 8:06 p.m., the plaintiff was walking from east to west on a drawbridge known as the Washington Street bridge in Norwalk, Connecticut. This bridge is maintained by the state and was being operated by Isaac Lee, a state employee. The drawbridge operates in the following manner: Before the bridge is opened, a warning system of lights, horns and bells signals that the bridge is about to open. Just before the bridge opens, gates are lowered so as to block any access to the bridge by either vehicles or pedestrians. The two "spans" of the bridge (those sections of the bridge that are movable) are held closed by a mechanism called "span locks." The span locks must be disengaged before the bridge can be opened. When the span locks are disengaged the warning bells cease. Between the gates and the spans are stationary areas that do not rise when the bridge is opened. The plaintiff and his companion had passed the warning gate when it came down behind them. The bridge operator saw the plaintiff on the wrong side of the gate and blew a horn in an attempt to warn him. Although the plaintiff did not respond to the warning, the bridge operator proceeded to raise the bridge in order to allow a large vessel to pass. After the vessel had passed, the operator began to lower the bridge. Before the bridge was closed, however, the operator caused the bridge to be opened a second time. The operator failed to operate any warning devices before opening the bridge the second time. After the bridge had been raised again, the plaintiff fell from the east span and landed on the west span. As a result of the fall the plaintiff suffered serious physical injuries. The attorney referee found that the actions of the bridge operator constituted actionable negligence and that this negligence was the sole proximate cause of the plaintiff's injuries. In a letter from the commissioner of claims of the state of Connecticut, dated July 13,1983, the plaintiff was advised that "the matter can now be sued directly in the court in the event you are unable to obtain settlement by the insurance carrier." Because the state had no insurance coverage from which he could benefit, the plaintiff, construing the claims commissioner's letter as permission to sue, issued a writ, summons and complaint against the defendants on September 27, 1983. The complaint was in two counts, the first alleging negligence and the second alleging a highway defect. The second count was stricken by the court, J. Healey, J., and a trial was held on the first count before an attorney trial referee. The attorney referee issued his report containing his findings and recommending that judgment enter for the plaintiff against the state in the amount of $85,000. The trial court overruled the state's objection to the referee's report and rendered judgment for the plaintiff in accordance with the report. The state has appealed and claims that the trial court erred (1) in finding that the claims commissioner granted the plaintiff permission to sue, (2) in permitting this action under General Statutes § 4-160 when the plaintiff had a cause of action under General Statutes § 13a-144, (3) in failing to sustain the defendants' first special defense in that permission to sue was not granted because the claims commissioner lacked jurisdiction, and (4) in failing to find that the plaintiff's injuries were caused by his own contributory negligence. In its first two claims of error, the state contends that the trial court erred in concluding that the claims commissioner had properly authorized the plaintiff's negligence suit. The state argues that the claims commissioner lacked jurisdiction to authorize this action because the commissioner has no authority to hear or determine claims that are "otherwise authorized by law." General Statutes § 4-142 (2). The state asserts that because the plaintiff's claim could have been brought under the Defective Highway Statute, General Statutes § 13a-144, the plaintiff's action was "other wise authorized by law" and therefore could not be properly permitted by the claims commissioner. Chapter 53 of the General Statutes, § 4-141 et seq., creates the office of claims commissioner and establishes the procedure for redressing claims arising from the actions of the state and its officers and employees. See General Statutes § 4-165. Pursuant to General Statutes § 4-160 (a), the claims commissioner is authorized to permit a claim against the state when the commissioner "deems it just and equitable." If the claims commissioner authorizes suit, the state waives its sovereign immunity. General Statutes § 4-160 (a); McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981). Under General Statutes § 4-142 (2), however, the claims commissioner has no authority to hear and determine "claims upon which suit is otherwise authorized by law." We note that General Statutes § 4-160, under which the claims commissioner may grant permission to sue the state, does not contain the same explicit restriction over the claims that the commissioner is allowed to hear that is set forth in General Statutes § 4-142. Even if we assume, however, that § 4-160 contains an implicit limitation restricting the claims commissioner from granting permission to sue the state with respect to claims that are "otherwise . . . authorized by law"; General Statutes § 4-142 (2); we would find no merit to the state's claim in this instance. General Statutes § 13a-144, which the state claims would have authorized the plaintiffs negligence claim, provides that a person may bring suit against the state if that person is injured "through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk . . . .''The plaintiff's negligence claim, however, was not related to a defective highway, bridge, or sidewalk, but was related solely to the conduct of the bridge operator. Cf. Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). The trial court, therefore, properly concluded that the plaintiff could not bring a claim for the bridge operator's negligence under General Statutes § 13a-144, and that the claims commissioner had jurisdiction over the plaintiffs negligence claim. In its remaining claims of error, the state attacks the attorney trial referee's finding that the claims commissioner had provided the plaintiff permission to sue the state and that the plaintiff's injuries were caused by the negligence of the bridge operator rather than the plaintiff himself. Our review of these factual findings is limited to a determination of whether they are clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061; Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987). It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to deter mine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984). There was ample evidence submitted in this case to justify the finding that the claims commissioner's letter of July 13,1983, gave the plaintiff permission to sue the state under General Statutes § 4-160. Furthermore, the evidence was sufficient to support the finding that the bridge operator's negligence was the sole proximate cause of the plaintiff's injuries. There is no error. In this opinion the other judges concurred. General Statutes § 4-142 provides in part: "There shall be a claims commissioner who shall hear and determine all claims against the state except: . (2) claims upon which suit otherwise is authorized by law . . . . " General Statutes § 13a-144 provides in part: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. ." The plaintiff's original complaint contained a separate count alleging a violation of General Statutes § 13a-144. This count, however, was stricken by the court before trial on the ground that the plaintiff had failed to comply with the time prescriptions of that statute. See footnote 2, supra.

Daly, J. In this appeal from the judgment dissolving the marriage of the parties, the plaintiff challenges the trial court's division of assets and award of alimony as being unreasonably disproportionate. The trial court found the following facts. The parties were married on December 2, 1972. This was the fourth marriage for the defendant, a retired airline pilot, who had been told by the plaintiff before their marriage that she was divorced from her husband, owned a home in Bethel and enjoyed a $500 weekly income from her grandmother's estate in Austria. The defendant subsequently learned that such was not true. The trial court found the plaintiffs credibility to be totally lacking on the basis of the fact that her financial representations to the defendant were untrue. The plaintiff, although suffering from arthritis, was found to be employable. The defendant was in poor health at the time of the dissolution. The plaintiff was found to be the cause of the breakdown of the marriage which was dissolved on November 5,1984, by the trial court, Geen, J. After a division of certain personalty, the trial court awarded the plaintiff periodic alimony in the amount of $250 a week for a maximum of two years and the proceeds of the sale of certain stock holdings. The defendant was also ordered to assume certain of the plaintiffs medical bills. The plaintiff claims on appeal (1) that the irretrievable breakdown of the marriage was not a result of her conscious acts, and (2) that the monetary award to her was inadequate. As a result of certain postjudgment motions filed by the plaintiff, the trial court awarded the plaintiff $150 per week in temporary alimony pending resolution of the appeal. The defendant was subsequently ordered to pay all of the plaintiff's medical expenses not covered by the defendant's insurance policy as long as they did not exceed written estimates which were filed in court. The order was conditioned on the plaintiff's signing a release allowing the defendant to make withdrawals during 1985 from his pension fund. The plaintiff amended her issues challenging the trial court's refusal to grant postjudgment relief by refusing to modify the alimony award from $150 to $250 per week and in requiring her to release the 1985 pension fund payment to the defendant. In dissolution of marriage cases, we allow the trial court broad discretion in determining whether it cor rectly applied the law and made reasonable conclusions based on the facts presented. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); Tirado v. Tirado, 7 Conn. App. 41, 43, 507 A.2d 470 (1986). The trial court is "in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action, in which personal factors such as the demeanor and the attitude of the parties are so significant." Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982); Pickman v. Pickman, 6 Conn. App. 271, 277, 505 A.2d 4 (1986). The trial court is in the position to weigh and interpret the evidence before it in order to pass upon the credibility of witnesses. We, as a reviewing court, do not retry the facts. Leo v. Leo, supra. The trial court chose to believe the defendant's evidence. "The trier of the facts is free to accept or reject, in whole or in part, the evidence of either party." Holmes v. Holmes, 2 Conn. App. 380, 382, 478 A.2d 1046 (1984). In support of her claim that the temporary alimony was inadequate, the plaintiff offered expert medical testimony that she is 25 percent permanently disabled by arthritis. " 'The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court.' " Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981). The facts cannot be retried on appeal. "This is particularly true with respect to financial awards in a dissolution action where 'great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.' " Hirst v. Hirst, 2 Conn. App. 348, 350, 478 A.2d 618 (1984). In dissolution actions, the trial court may exercise broad discretion in awarding alimony and dividing property. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982). "While alimony, in whatever form, or an assignment of property is not to be considered either as a reward for virtue or as a punishment for wrongdoing, a spouse whose conduct has contributed substantially to the breakdown of the marriage should not expect to receive financial kudos for his or her misconduct." Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). We disagree with the plaintiffs claim that the trial court, in making its award of alimony and its assignment of property, gave inordinate weight to the cause of the breakdown. There is no provision in the governing statutes requiring that awards of alimony be distributed equally between the parties. Tutalo v. Tutalo, supra, 253. The trial court structured the division of property in a way which returned to the defendant his contribution to the marriage. Weiman v. Weiman, 188 Conn. 232, 235, 449 A.2d 151 (1982). We find that the trial court fully considered in its memorandum of decision the criteria set out in General Statutes § 46b-81 and that the decision regarding the financial award was reasonable and supported by the evidence. Tirado v. Tirado, supra. In the amendment to the appeal, the plaintiff further claimed that the trial court abused its discretion in not increasing the temporary alimony pending the appeal from $150 to $250 per week and in ordering her to sign a release for the 1985 pension withdrawal. The plain tiff sought no articulation of the order of September 16, 1985. It may well be that the trial court decided that the release of the pension fund was necessary for the defendant to make his alimony payments or to have funds available for the plaintiff's potential medical expenses. The established rule in a modification action is that the decision of the trial court shall be attributed great weight and every consideration given in support of its correctness. McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). " '[T]he power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.' " Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984); Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). The plaintiff relies on Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983), for the claim that she was not given adequate notice of the court's order to sign the approval consent form. Connolly is distinguishable from the present case because it involved an action under subsection (b) of General Statutes § 46b-86 which requires notice and hearing in order to modify dissolution judgments in situations where a party receiving alimony is living with another person. "Because § 46b-86 (a) is narrowly written it cannot reasonably be construed as giving notice of grants of judicial authority outside its own parameters. Moreover, the principle of constructive notice cannot be extended to subsection (b) of § 46b-86 because to do so would negate the notice and hearing requirements expressly provided therein by the legislature." Connolly v. Connolly, supra, 477. Because the plaintiffs counsel did not object to the failure of the defendant to testify as to his ability to pay alimony without reaching into the pension fund, it would appear that both parties obviously acquiesced in the procedure regarding the consent form. "If coun sel has full knowledge of improper conduct (or what he perceives to be improper procedure) he cannot remain silent, hoping for a favorable ruling, and then be heard to complain when the order is unsatisfactory. See Holden & Daly, Conn. Evidence § 12." Walsh v. Walsh, 190 Conn. 126, 132, 459 A.2d 515 (1983). There is no error. In this opinion the other judges concurred. According to the September 16,1985 order, the defendant was entitled to receive a lump sum from his pension each year. This required the waiver or consent of the plaintiff spouse under the provisions of the Pension Reform Act of 1984, effective January 1, 1985. General Statutes § 46b-81 provides in pertinent part: "[T]he superior court may assign to either the husband or wife all or any part of the estate of the other. . . . (c) In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates."

Peters, C. J. This case concerns the scope of a trial court's authority to modify, in contempt proceedings, a final remedial order enforcing an administrative determination that the alleged contemnor has engaged in a pattern of discriminatory conduct. The present proceedings began with a complaint by the defendant Antoinette Mason to the defendant commission on human rights and opportunities (hereinafter the CHRO) pursuant to General Statutes § 31-127 (now § 46a-82). The complainant charged that the plaintiff department of health services (hereinafter the DOHS) had deprived her of a promotion because of racial discrimination in violation of General Statutes § 31-126 (a) (now § 46a-60 [a] [l]) and had engaged in wrongful retaliation in violation of General Statutes § 31-126 (d) (now § 46a-60 [a] [4]). The CHRO found in favor of the complainant and ordered the DOHS to appoint her to a specifically designated laboratory position to which the DOHS had appointed another person. On appeal by the DOHS to the Superior Court, the CHRO order was upheld, and this court subsequently denied certification. Thereafter, the DOHS reorganized its laboratories and appointed the complainant to a position other than that designated in the CHRO order. Alleging that this DOHS appointment constituted noncompliance with its order, the CHRO filed a motion asking that the DOHS be held in contempt. The trial court denied this motion and the defendants have appealed. We find error. The underlying facts are undisputed. On June 14, 1977, Antoinette Mason filed a complaint of racial discrimination with the CHRO. After an investigation and a hearing, the CHRO hearing tribunal determined, on January 31,1980, that the DOHS had engaged in a pattern and practice of racial discrimination against Mason and had unlawfully denied her a promotion in favor of a less qualified white person, Janet Kapish. To remedy this history of discrimination, the CHRO ordered that Mason be appointed to the position of assistant director, health laboratory division (public health chemistry and biophysics section). Recognizing that Kapish was an innocent and good faith beneficiary of the discriminatory practices engaged in by the DOHS, the CHRO order instructed the DOHS to transfer Kapish to another available position at the same salary and with the same benefits that she would have received as assistant director. The DOHS appealed the decision and order of the hearing tribunal to the Superior Court, and the CHRO cross-petitioned for enforcement of its order. On September 30,1982, the Superior Court, Barry, J., entered a decree enforcing the hearing tribunal's order and directing DOHS "to comply with said.order in all respects." A petition for certification filed by the DOHS was denied on December 7, 1982. The specific position to which Mason became entitled by virtue of the court order was that of assistant director, health laboratory division (public health chemistry and biophysics section). While judicial proceedings were pending, the title of this position, then held by Kapish, was changed to assistant director, health laboratory division (environmental chemistry section). The DOHS then created a new position denominated assistant director, health laboratory division (organic chemistry section) for Mason. As a result of this reorganization dividing up the work of the prior public health chemistry and biophysics section, Mason was placed in a position which did not include all of the responsibilities and duties included in the prior laboratory section at the time of the court order. The DOHS created the two new assistant director positions for two reasons: to carry out the court order of appointment for Mason while continuing Kapish in an available position with the same salary and benefits as an assistant director, and to improve working procedures within the laboratory in response to expansion in its work load and areas of responsibility. During the contempt proceedings, in which Kapish was given intervenor status, the defendants sought to prove that the DOHS reorganization did not comply with the court order of September, 1982. The trial court, Kremski, J., concluded, however, that the DOHS was not in contempt. Acknowledging that the DOHS reorganization placed Mason in a position with fewer responsibilities and duties than the position described in the court order, the court nonetheless viewed the reorganization as consistent with its own interpretation of the court order. That order, according to the court, imposed on the DOHS a dual obligation: to appoint Mason to an assistant directorship in the laboratory and to appoint Kapish to a position comparable in responsibility to her previous position. In discharging its obligation, the DOHS properly implemented a reorganization that not only responded to its legal obligation under the court order but also took into account the present needs of a department whose work load had significantly expanded since the inception of this litigation in 1977. In effect, the court held that substantially changed circumstances required a modification of the court order directing the DOHS to appoint Mason to the position of assistant director, health laboratory division (public health chemistry and biophysics section) because that position no longer existed. The CHRO and Mason, who filed separate appeals to this court, urge us to overturn the judgment of the trial court on a number of grounds. Both appellants maintain that the trial court erred : (1) in its construction of the September, 1982 court order; (2) in its factual findings about the appropriateness of the positions offered to Mason and to Kapish, and in the subsidiary evidentiary and procedural rulings that led to these factual findings; and (3) in its conclusion that the reorganization of the DOHS precluded appointment of Mason to the position specified in the 1982 court order. Mason argues, in addition, that the trial court erred in permitting Kapish to intervene as a party plaintiff. In light of our disposition of the case, these issues need not be specifically addressed. The determinative question in this case is the scope of the trial court's authority, in contempt proceedings, to modify a specific and final remedial order resulting from an administrative finding that the alleged contemnor has engaged in a pattern of discriminatory conduct. In contempt proceedings involving family matters, "[b]y virtue of General Statutes § 46b-8 and Practice Book § 464 (a), a trial court is authorized to grant the affirmative relief of modifying an order for support and alimony to one who is in contempt of such an order." Greenwood v. Greenwood, 191 Conn. 309, 314, 464 A.2d 771 (1983); Sanchione v. Sanchione, 173 Conn. 397, 403, 378 A.2d 522 (1977). A similar view prevailed at common law. Lasprogato v. Lasprogato, 127 Conn. 510, 513, 18 A.2d 353 (1941). Furthermore, in dealing with judgments that decree injunctive relief, we have held that "courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so." Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969); Collens v. New Canaan Water Co., 155 Conn. 477, 494, 234 A.2d 825 (1967). That power must, however, be exercised in a manner consistent with " 'the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. . . .' Maggio v. Zeitz, 333 U.S. 56, 69, 68 S. Ct. 401, 92 L. Ed. 476 (1948)." Cologne v. Westfarms Associates, 197 Conn. 141, 148, 496 A.2d 476 (1985). The question is the applicability of these principles, enunciated in cases in which trial courts had plenary authority to fashion the underlying decrees, to the enforcement of final remedial orders that result from administrative proceedings. Although this issue is one of first impression, we believe that the deference to administrative decision making that is reflected in our Uniform Adminis trative Procedure Act counsels against judicial modification of administratively derived remedial orders in contempt proceedings. Our starting point must be the well established principle that, even "[w]hen agency action is overturned . . . because of invalid or insufficient findings . a court must ordinarily remand the matter under consideration to the agency for further consideration. Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976); Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974); Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952)." Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980); see also Konigsberg v. State Bar of California, 366 U.S. 36, 43-44, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S. Ct. 437, 84 L. Ed. 656 (1940). Remand for agency consideration is particularly appropriate, we have held, when the issue before the court is one raising important considerations of policy that the agency has not previously had the opportunity to consider. See Fellin v. Administrator, 196 Conn. 440, 450, 493 A.2d 174 (1985). It is the CHRO that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be. When a remedial order of the CHRO has been tested and validated through the judicial process, we hold today that such an order cannot be collaterally modified at the instance of a party resisting judicial enforcement of that order. Undeniably, a court adjudicating contempt proceedings must retain the authority to decide whether a remedial order is so vague and unclear that it is inappropriate to impose sanctions for disobedience of the order. See Adams v. Vaill, supra, 485-86; Labbadia v. Bailey, 147 Conn. 82, 86, 157 A.2d 237 (1959). The problem in this case, however, is not ambiguity. At the heart of the controversy that divides the parties is the exactitude of the remedial order that Mason be appointed to a specifically designated assistant directorship in the DOHS laboratory. Judicial authority to deal with ambiguity does not encompass judicial reconsideration of clear and unequivocal remedial orders, even on the ground of a substantial change of circumstances, when those remedial orders represent the culmination of fully litigated administrative proceedings. Because the trial court's decision that the DOHS was not in contempt resulted from an erroneous view of its authority to modify the express terms of the remedial order of September, 1982, its judgment cannot stand. We have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute. See Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230, 487 A.2d 201 (1985); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982); Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976). The federal case law recognizes that appellate courts must inquire into the interpretative reasoning that led a trial court to conclude that a remedial order had not been violated. N.L.R.B. v. Warren Co., 350 U.S. 107, 110-13, 76 S. Ct. 185, 100 L. Ed. 96 (1955); Eaton v. Courtaulds of North America, Inc., 578 F.2d 87, 90-92 (5th Cir. 1978). When, as here, the trial court's reasoning was erroneous, its conclusion that the questioned conduct did not constitute a contempt is equally erroneous and must be overturned despite the narrow scope of appellate review of contempt proceedings; see Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978); Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). In accordance with the principles we have set out above, the case must be remanded to the CHRO to determine whether a substantial change in circumstances requires modification of its earlier remedial order. See Civil Service Commission v. Commission on Human Rights & Opportunities, supra, 231. There is error, the judgment is set aside and the case is remanded to the trial court with direction to remand the case for further consideration by the commission on human rights and opportunities. In this opinion the other judges concurred. At the time the complaint was filed, June 14, 1977, General Statutes § 31-127 (now amended as § 46a-82) provided: "Sec. 31-127. procedure. Any person claiming to be aggrieved by an alleged unfair employment practice may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unfair employment practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission. The commission, whenever it has reason to believe that any person has been engaged or is engaged in an unfair employment practice, may issue a complaint. Any employer whose employees, or any of them, refuse or threaten to refuse to comply with the provisions of this chapter may file with the commission a written complaint under oath asking for assistance by conciliation or other remedial action. The submission of a claim to the arbitration process shall not bar a person from filing a complaint under this chapter and, in considering such claim, the commission and the hearing tribunal may admit in evidence any decision resulting from such arbitration and accord it such weight as may be appropriate under the facts and circumstances of the case. After the filing of any complaint, the chairman of the commission shall refer the same to a commissioner or investigator to make investigation of such complaint and, if such commissioner or investigator determines after such investigation that there is reasonable cause for believing that an unfair employment practice has been or is being committed as alleged in such complaint he shall endeavor to eliminate the unfair employment practice complained of by conference, conciliation and persuasion. In the conduct of such investigation the commission may issue subpoenas requiring the production of employment records relating to the complaint under investigation. No commissioner or investigator shall disclose what has occurred in the course of such endeavors, provided the commission may publish the facts in the case and any complaint which has been dismissed and the terms of concilation when a complaint has been adjusted. In case of failure to eliminate such practice, the investigator or investigating commissioner shall certify the complaint and the results of his investigation to the chairman of the commission and to the attorney general. The chairman of the commission shall thereupon appoint a hearing tribunal of one member of the commission or one hearing examiner to hear such complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of such complaint, as the same may have been amended, requiring the person, employer, labor organization or employment agency named in such complaint, hereinafter referred to as the respondent, to answer the charges of such complaint at a hearing before such tribunal, at a time and place to be specified in such notice. The place of any such hearing may be the office of the commission or another place designated by it. The case in support of the complaint shall be presented at the hearing by the attorney general, who shall be counsel for the commission, or the counsel appointed under the provisions of section 31-125a, as the case may be; and no commissioner who previously made the investigation or caused the notice to be issued shall participate in the hearing except as a witness, nor shall he participate in the deliberations of the tribunal in such case. Any endeavors or negotiations for concilation shall not be received in evidence. The respondent may file a written answer to the complaint and appear at such hearing in person or otherwise, with or without counsel, and submit testimony and be fully heard. The tribunal conducting any hearing may permit reasonable amendment to any complaint or answer and the testimony taken at such hearing shall be under oath and be transcribed at the request of any party. If, upon all the evidence, the tribunal finds that a respondent has engaged in any unfair employment practice, it shall state its findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and further requiring such respondent to take such affirmative action, including, but not limited to, hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, as in the judgment of the tribunal will effectuate the purpose of this chapter, provided, liability for back pay shall not accrue from a date more than two years prior to the filing or issuance of such complaint and, provided further, interim earnings, including unemployment compensation and welfare assistance or amounts which could have been earned with reasonable diligence on the part of the person to whom back pay is awarded shall be deducted from the amount of back pay to which such person is otherwise entitled. If, upon all the evidence, the tribunal finds that the respondent has not engaged in any alleged unfair employment practice, it shall state its findings of fact and shall similarly issue and file an order dismissing the complaint. The commission shall establish rules of practice to govern, expedite and effectuate the foregoing procedure. Any complaint filed pursuant to this section must be so filed within one hundred and eighty days after the alleged act of discrimination." At the time the complaint was filed, General Statutes § 31-126 (a) (now amended as § 46a-60 [a] [1]) provided: "Sec. 31-126. unfair employment practices. It shall be an unfair employment practice (a) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry or physical disability, including, but not limited to, blindness of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment." At the time the complaint was filed, General Statutes § 31-126 (d) (now amended as § 46a-60 [a] [4]) provided: "Sec. 31-126. unfair employment practices. It shall be an unfair employment practice . . . (d) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any unfair employment practice or because he has filed a complaint or testified or assisted in any proceeding under section 31-127." Although the remedial order included provisions in addition to Mason's designation as assistant director, laboratory division (public health chemistry and biophysics section), these other aspects of the remedial order are not before us on the present appeals. Relevant sections of the order dealing with the respective positions of Mason and Kapish provide: "1. The complainant, Mrs. Mason, shall be appointed to the position of Assistant Director of the Laboratory Division (Public Health, Chemistry Biophysics Section). . . . "8. In the event the respondent can properly transfer Ms. Kapish (if she is still employed by them) to a position of equal pay they shall do so except that at the respondents [sic] option it may continue Ms. Kapish at any other available position at the salary and with the benefits she would have received as assistant director." The defendants offered evidence of a substantial lack of equivalence between Mason's new assistant directorship and the position to which she was to have been promoted. Because of objections by the plaintiff, the defendants were unable to offer evidence about alternate positions in the DOHS to which Kapish might have been appointed. It is doubtful that, in the absence of a valid reorganization, the DOHS could have relied on the desirability of providing an appropriate position for Kapish as a defense in contempt proceedings for its failure to appoint Mason to the assistant directorship specifically designated in the September, 1982 court order. Although we held in Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230, 487 A.2d 201 (1985), on a direct appeal of a remedial order, that the victim of a discriminatory practice is not entitled to relief at the expense of innocent incumbent employees, that holding furnishes no basis for a collateral attack on a final judgment. Even if the original remedial order had erroneously failed to reconcile the designated position for Mason with its announced concern for Kapish, the DOHS was obligated to obey the order as specifically written, just as it would have been obligated to obey any other injunctive order issued by a court with jurisdiction over the subject matter and the parties. Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985).

Peters, J. This appeal arises out of a sale of building materials and supplies. The plaintiff seller, Steleo Industries, Inc., sued the defendant buyer, Sherman Cohen, to recover the unpaid balance of the purchase price of goods delivered to and accepted by the defendant. The defendant, by his answer, special defenses and counterclaim, put into issue the conformity of the goods and sought to recover damages incurred in their repair. The trial court found the issues for the seller on its complaint in the amount of $5934.99 plus interest, and for the buyer on his counterclaim in the amount of $4000. It therefore rendered a judgment in favor of the plaintiff for $1934.99 plus interest. The plaintiff has appealed. Despite the brevity of the trial court's memorandum of decision, the basic facts about the underlying contract between the plaintiff and the defendant are reasonably clear. The buyer built a costly home in Greenwich for which the seller supplied much of the building materials. Before the present litigation, the buyer had already paid the seller some $63,000. The goods presently in dispute were properly billed in the amount of $5934.99. What was centrally in dispute was not the delivery of the goods, their acceptance or their price, but rather whether the goods were conforming goods or were defective. The plaintiff raises four issues on this appeal. Did the trial court err: (1) in finding that the goods delivered by the plaintiff were defective? (2) in finding that the plaintiff had been notified that the goods were defective? (3) in finding that the defendant incurred reasonable repair costs of $4000? (4) in failing to award attorney's fees to the plaintiff? Because the contract between the parties was a contract for the sale of goods, the law governing this transaction is to be found in article 2 of the Uniform Commercial Code. General Statutes § 42a-2-102. Under article 2, the rights and liabilities of the parties are determined, at least in part, by the extent to which the contract has been executed. The buyer's acceptance of goods, despite their alleged nonconformity, is a watershed. After acceptance, the buyer must pay for the goods at the contract rate; General Statutes § 42a-2-607 (1); and bears the burden of establishing their noncon formity. General Statutes § 42a-2-607 (4). Acceptance, even with knowledge of the nonconformity of the goods, does not, however, constitute an election to waive all claims with respect to the accepted goods. General Statutes § 42a-2-607 (2). The buyer who elects to keep nonconforming goods has a remedy in damages; §42a-2-714; provided that he has given timely notice of breach to the seller; §42a-2-607 (3) (a); and he may exercise that remedy by deducting all or any part of his claimed damages from any part of the unpaid contract price otherwise due to the seller under the same contract. General Statutes §42a-2'-717. See White & Summers, Uniform Commercial Code (2d Ed. 1980) § 8-2. These legal principles furnish the background against which the plaintiff's claims on this appeal must be tested. The plaintiff does not challenge the trial court's conclusions of law concerning their applicability. Instead, the plaintiff's first three assignments of error contest the trial court's factual findings of defect, notice and repair costs. Our review of such claims is limited to a determination of whether the decision of the trier was clearly erroneous in light of the evidence and the pleadings in the whole record. Practice Book, 1978, § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). With regard to the finding of defects challenged by the plaintiff's first claim of error, there was testimony which the trier might have found credible that doors became warped and delaminated, that lumber was excessively knotty, and that other lumber shrank so as to cause mitered joints on specially constructed beams to come apart. This evidence was sufficient to support the finding that the seller had delivered goods which were, at least in part, nonconforming. It is important to note, in this connection, that a buyer of goods is entitled to recover damages for goods which, in breach of warranty, are not of merchantable quality; General Statutes §4 42a-2-314 and 42a-2-714 (2); by showing that they fail to conform to the contract "in any respect." General Statutes § 42:a-2-601. He does not have to meet the higher standard of showing that the nonconformity of the goods "substantially impairs [their] value to him," which is the statutory standard governing revocation of acceptance. General Statutes § 42a-2-608 (1); see White & Summers, Uniform Commercial Code (2d Ed. 1980) § 8-3. We find no error in the trial court's determination that the defendant had sustained his burden of proof that the goods were not fully conforming and that the plaintiff was therefore in breach. See General Statutes § 42a-2-607 (4). With regard to the trial court's finding of notice, challenged by the plaintiff's second claim of error, there was similarly enough evidence to support that finding. There was testimony of complaints to John Sandor, the plaintiff's mill estimator, and to Paul Devon, the plaintiff's mill superintendent. They themselves acknowledged that they had received complaints, both from the defendant's workmen and from the defendant himself. The standard by which notice is measured for the purposes of §42a-2-607 (3) (a) is not as rigorous a standard as that which governs notice of rejection under <§§ 42a-2-602 and 42a-2-605. As the official comment to § 2-607 points out, and the cases have held, the reason that notification is required to preserve the buyer's remedy of damages for accepted goods is to alert the seller that the transaction is still trouble some rather than to particularize the buyer's entitlement to damages. See, e.g., Alafoss h. f. v. Premium Corporation of America, Inc., 599 F.2d 232, 235 (8th Cir. 1979); Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813, 825-27 (6th Cir. 1978); Automated Controls, Inc. v. MIC Enterprises, unpub'd memorandum, Civ. No. 76-0-389, 27 U.C.C. Rep. 661, 673-74 (D. Neb. July 31, 1978), aff'd per curiam, 599 F.2d 288 (8th Cir. 1979); Carlson v. Rysavy, 262 N.W.2d 27, 29-30 (S.D. 1978); Vintage Homes, Inc. v. Coldiron, 585 S.W.2d 886, 889 (Tex. Civ. App. 1979); White & Summers, Uniform Commercial Code (2d Ed. 1980) § 11-10. Although the notification was oral, it was sufficient to alert the plaintiff to the possibility that it might be answerable to the defendant for breach of contract and of warranty. The plaintiff has not, on this appeal, specifically contested the timeliness of the notification. The trial court was therefore not in error in finding that the defendant had given adequate notice of breach to the plaintiff. The third claim on this appeal challenges the finding that the defendant incurred costs of $4000 to repair the nonconforming goods received from the plaintiff. A buyer who is suing for losses arising out of his acceptance of nonconforming goods ordinarily measures his damages by the difference between the value of the goods accepted and the value of the goods if they had been as warranted. General Statutes § 42a-2-714 (2). The plaintiff does not dispute that costs of repair may be an appropriate adjunct to this statutory standard under General Statutes § 42a-2-714 (3) and 42a-2-715. See also Johnson v. Healy, 176 Conn. 97, 106, 405 A.2d 54 (1978). Again, the only issue is whether the defendant produced sufficient evidence to support the trier's award of $4000 on his counterclaim. See Willametz v. Goldfeld, 171 Conn. 622, 628, 370 A.2d 1089 (1976). The defendant offered the testimony of Emery Varjassy, his painter, to support his unitemized bill of $2500 and of Mario Diacri, his carpenter, to support his unitemized bill of $1500. Both of these workmen had general responsibilities for the construction of the defendant's home; neither had been hired for the special purpose of making repairs occasioned by the plaintiff's delivery of defective goods. There were therefore no contemporaneous time records of repair work, and their bills represented instead their good faith reconstruction, after the fact, of their efforts to adapt and to fix the defective doors, lumber and beams received from the plaintiff. Once the court accepted the testimony of defective deliveries, it was entitled to give credence to the testimony about the time reasonably required to make needed repairs. There was no testimony that the work done was inappropriate or that the hourly rates charged by Varjassy and Diacri were exorbitant. There was no error therefore in the court's finding that the defendant was entitled to recover $4000 on his counterclaim. The plaintiff's final claim of error asserts that the court should have awarded attorney's fees to the plaintiff in accordance with the terms of the written agreement between the parties. It is undisputed that the agreement provided that the defendant should pay . . reasonable attorney's fees in the amount of 20% of the sum referred for collection." It is equally undisputed that the plaintiff's attorney, through his own neglect, omitted to offer testimony of the reasonableness of such fees during the plaintiff's case in chief. The plaintiff eon sistently conceded in the trial conrt that the attorney's fees clause was not self-executing and could not be enforced without an evidentiary showing of reasonableness. In the light of these concessions., we find no error in the trial court's refusal to award attorney's fees. See Lebowitz v. McPike, 151 Conn. 566, 568, 201 A.2d 469 (1964); Braithwaite v. Lee, 125 Conn. 10, 13-14, 2 A.2d 380 (1938). The trial court, furthermore, did not abuse its discretion in denying the plaintiff's motion to open its case in chief, after it had rested, in order belatedly to intro* duce the relevant evidence. There is no error. In this opinion the other judges concurred.

Borden, J. The defendant appeals from the judgment of conviction, after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). He claims that the trial court erred (1) by improper restriction of his right to voir dire prospective jurors, (2) by denying his motions for judgment of acquittal based on insufficiency of the evidence to support his conviction, (3) by admitting the testimony of a witness relating to the defendant's knowledge of the nature of the substance involved, and (4) in the court's charge to the jury on the issue of possession. We find no error. The jury could reasonably have found the following facts: The defendant was employed at the Georgia-Pacific facility in Newtown. In early April, 1984, Maureen Keenan, a delivery supervisor for United Parcel Service (UPS), in Brookfield, supervised the delivery of an overnight package sent from Miami, Florida, and addressed to the defendant at the Georgia-Pacific facility. Keenan described the package as approximately six to eight inches square. She noticed that the package was sent COD but had no COD charge indicated on the outside of the package. She therefore did not know how much to collect on delivery. Because it was an overnight package which she wanted to deliver promptly, Keenan, in accordance with company policy, opened the package to look for a packing slip. There was no such slip. In delivering the package to the defendant at Georgia-Pacific, she opened the package over the protest of the defendant, who did not want her to do so and whom she described as having an excited demeanor. In the package were protective packaging material and a sealed plastic baggie, one to two inches by four inches in size, containing a white powdery substance. She gave the baggie to the defendant, who called Miami to find out the shipping charge. Later in the same month, Keenan made a second delivery of a similar package to the defendant at Georgia-Pacific. This package was similar to the first in size, was an overnight COD package and had been sent from the same person and address in Miami. Still later in the same month, a similar third package arrived at UPS for delivery to the defendant. It was from the same address in Miami. When Keenan saw the package, she called David Olson, a UPS security officer. Olson opened the package. It contained a Tupperware plastic container in which, in turn, was a clear plastic bag. The bag contained a white powdery substance later determined to constitute 27.8 grams, or .98 ounces, of cocaine. After meeting with the police, Olson, accompanied by two members of the Newtown police department, went to Georgia-Pacific to deliver the package to the defendant. Olson arrived at the Georgia-Pacific front desk and told the person there that he had a package for the defendant. The defendant came to the desk, and Olson identified himself as a UPS employee with a COD package from Miami. The defendant gave Olson the ten dollars COD charge, signed the UPS delivery record, and Olson handed the package to the defendant, who took it into his hands. The police officers then arrested the defendant. The amount of cocaine involved, 27.8 grams, could yield, at a minimum, 278 individual one hundred milligram dosages. By dividing the 27.8 grams into smaller dosages or by adding dilutants, the number of individual dosages could be increased. A fifty milligram dosage would yield a very strong physiological response, and a one hundred milligram dosage would be even more potent and could be fatal to the user. I The defendant's first claim, namely, that the trial court improperly restricted his right to voir dire prospective jurors, requires little discussion. The defendant has made no more than a "minimal pass at complying with" the requirements of proper presentation of such a claim pursuant to Practice Book § 3060F (d) (3). See Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984). General assertions in his brief regarding the subject matters which he wished to explore, coupled with three transcript references, are insufficient. Id. We, therefore, decline to review this claim. II The defendant next claims that the evidence was insufficient to sustain his conviction in two respects: (1) that there was insufficient evidence of his knowledge of the narcotic character of the content of the package; and (2) that there was insufficient evidence of his intent to sell the cocaine. We disagree. The two-fold test for determining the sufficiency of the evidence to justify a conviction is well established. We first view all of the evidence in the light most favorable to the verdict. We then determine whether a jury could have reasonably concluded, from that evidence and all the reasonable inferences which it yields, that the defendant was guilty beyond a reasonable doubt. State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986). We agree with the defendant that in order to establish illegal possession of narcotics the state must prove, not only that the defendant "exercised dominion and control over the substance, [but that he] had knowledge of its presence, and had knowledge of its narcotic character." State v. Williams, 169 Conn. 322, 335, 363 A.2d 114 (1975). We also agree that mere acceptance of a package containing narcotics is an insufficient basis for an inference of knowledge of its contents; otherwise "the recipient of the package would be liable to conviction, not because of the criminality of his own behavior but because of the wholly unilateral act of the sender." State v. Richards, 155 N.J. Super. 106, 114, 382 A.2d 407 (1978); see Illinois v. Andreas, 463 U.S. 765, 769 n.3,103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). The state's case here, however, did not depend solely upon the defendant's acceptance of the package containing the contraband. This was not an unexpected package sent to the defendant. The jury was not powerless to infer the defendant's knowledge of its contents. This was the third similar small package from the same source and address in Miami within less than one month. This package contained a small plastic bag which, in turn, contained a white powdery substance determined to be cocaine. In the first package was a small plastic bag containing a white powdery substance. When that package was delivered, the defendant did not want Keenan to open it, and exhibited an excited demeanor when she did so. It is by now common knowledge that cocaine is often packaged as a white powder in small plastic bags. While it was not a necessary inference that the first two recent similar packages sent to the defendant also contained cocaine, that was a permissible inference for the jury to draw. 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"). Thus, the jury could also infer that the defendant knew that this similar third package, having been sent to him from the same source within such a brief period of time, also contained cocaine. There was also sufficient evidence of the defendant's intent to sell the cocaine. The concept of a sale of an illicit drug is not confined to an exchange for value, but "is any form of delivery which includes barter, exchange or gift, or offer therefor . . . ." General Statutes § 21a-240 (50). Intent may be inferred from conduct. State v. Avila, 166 Conn. 569, 579, 353 A.2d 776 (1974). "Possession of large quantities of prohibited narcotics will support a conclusion that it was possessed for distribution or for sale." Id. Here, there was evidence that the amount of cocaine which the defendant possessed could yield at least 278 highly potent, even fatal, dosages, and an even greater number of smaller or diluted dosages. There was also evidence that this was the third similar delivery to him within less than one month. "The illegal sale of drugs is a criminal activity which is not necessarily confined to a [particular] period, as if it were inherently akin to the traditional Thanksgiving-to-Christmas retail sales period. It often . . . involves a course of conduct which continues over a long period of time." State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). Although it would have been a permissible inference that the defendant was simply a heavy personal user, it was also a permissible inference that he intended to deliver some or all of the cocaine to others. State v. Dumlao, supra. The jury could reasonably infer that the defendant intended to "sell" the cocaine, within the meaning of that term as defined in General Statutes § 21a-240 (50), and that this third shipment was part of the process of building up or replenishing his inventory. III The defendant's third claim of error involves the admission of Keenan's testimony regarding the delivery of the first two packages and the contents of the first package. Although the defendant concedes the relevance of Keenan's testimony, he claims that its prejudicial effect outweighed its probative value. His argument is without merit. Keenan's testimony was highly relevant to the defendant's knowledge and intent. See State v. Murrell, 7 Conn. App. 75, 80, 507 A.2d 1033 (1986). The defendant has not shown that the court abused its broad discretion in performing its classic function of weighing probative value against prejudicial effect. Id., 81. IV This leaves for consideration the defendant's final claim, namely, that the trial court, in its charge to the jury on the concept of possession, took from it the option of finding that the defendant did not have dominion and control of the package. We disagree. In performing its required function of relating the law of the case to the evidence; see State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983); the court charged on the issue of possession as follows: "If you find the State has not proven beyond a reasonable doubt that Mr. Olson of UPS left the box either on the counter, between himself and [the defendant] or in [the defendant's] hand, then you must find that the defendant is not guilty. However, if you find beyond a reasonable doubt that the defendant received the package from Mr. Olson after paying the COD charges, [that the defendant] signed the UPS receipt indicating delivery of the package and that Mr. Olson had left the box either on the counter or in the defendant's hand, then you must find delivery was made of the box addressed to the defendant which placed the defendant in the possession and control of the box." (Emphasis added.) The defendant excepted to the court's use of the word "must" as emphasized above. This case comes within the familiar principle that jury instructions need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury's guidance. State v. Storlazzi, supra, 464. The ultimate test is whether the charge in its entirety fairly presents the case to the jury. Id., 466. The charge should relate the law to the evidence sufficiently to give the jury a practical guide. Id., 467. Possession requires dominion and control. State v. Williams, supra. The state's claim is that when the defendant paid the COD charges for the package and signed the UPS receipt for it, and when Olson either placed it in the defendant's hand or left it on the counter, the defendant was in possession of it because he had dominion and control over it. That is a perfectly valid legal claim, because at that point UPS had done all it could do to effect delivery of the package to the defendant, the defendant had done all he was required to do to accept delivery, and the package was for all legal and practical purposes in his possession. The signed receipt acknowledged delivery. All that remained to perfect delivery of the box was for Olson to release it into the defendant's hands or within his reach or accessibility. We fail to see how, under this view of the state's evidence, the defendant could not be found to have been in possession of the box. The court did not, as the defendant claims, remove from the jury's consideration the option of finding that the defendant did not have possession of the box. It instructed the jury that if it had a reasonable doubt about whether the defendant took possession of the box as claimed by the state, it must find the defendant not guilty. The court did, however, relate the law of possession to the evidence. Although the use of the word "must" may have been, as the state suggests, infelicitous, we cannot conclude that it was erroneous. In State v. Storlazzi, supra, our Supreme Court approved a similar jury instruction in which the trial court related the law to the evidence. In that case, the defendant was charged with risk of injury to a minor child. General Statutes § 53-21. An essential element of that offense was the doing of "any act likely to impair the health or morals of any child." State v. Storlazzi, supra, 464-65 n.9. After referring to the state's evidence, the trial court charged the jury that "[t]his is the type of activity that Connecticut General Statutes [§] 53-21 seeks to protect children from. And, that is the type of activity which is likely, if it did take place, to impair the health or morals of a child." Id., 467. The trial court also instructed the jury that it "must find the defendant guilty of . . . risk of injury to, or impairing the morals of a child," if the jury found certain facts based on the evidence which the court reviewed at length in its charge. (Emphasis added.) Id. The Supreme Court concluded that "[t]he instructions, read in their entirety, did not direct or advise the jury how to decide the matter, and fairly presented the case to the jury in such a way that no injustice was done to the defendant. Indeed, the instructions comported with the requirement that an allusion to the evidence is necessary to furnish the jury with a practical guide as to how to apply the law to the evidence." Id., 467. Likewise, the trial court in the present case did not err merely by furnishing the jury with such a practical guide. Furthermore, the court instructed the jury that it was solely their duty to find the facts, that its comments on "the propriety or lack of propriety of your finding certain facts from the evidence . . . are merely suggestions for you to approve or disapprove in the exercise of your own sound judgment," and that its references to the facts were only for the purpose of relating the law to the evidence. "The instructions, read in their entirety, did not direct or advise the jury how to decide the matter, and fairly presented the case to the jury in such a way that no injustice was done to the defendant." Id. There is no error. In this opinion the other judges concurred. Indeed, after the court's original charge, the jury specifically asked the court whether a sale included "any form of distribution to one or more persons . . . such as presenting a gift?" The court responded appropriately, and reminded the jury that the defendant was not charged with making a sale, but with possession with intent to sell. Perhaps a more neutral phrasing would have been "may," or "such findings would be sufficient to establish that the defendant had dominion and control of the box."

Bogdanski, J. The issue dispositive of this appeal is whether the trial court erred in granting the plaintiff's motion for summary judgment on the ground that the defendant's counter-affidavit failed to present any triable issue of fact. The plaintiff's complaint, which sought to foreclose a judgment lien, alleged that on April 27, 1973, the plaintiff obtained a judgment against the defendant in the sum of $25,000, and to secure said sum, she caused to be filed a judgment lien against the defendant's real estate situated in Darien. The defendant filed an answer denying the allegations of the complaint and, by way of special defense, alleged that because the judgment of April 27,1973, was procured by fraud the judgment lien was invalid. The plaintiff thereupon moved for summary judgment asserting that there was no genuine issue as to any material fact and filed an affidavit with other documentary proof in support of her motion setting forth the following facts: On April 27, 1973, she obtained a judgment against the defendant in the Superior Court at Stamford in the amount of $25,000. On July 24, 1973, she caused to be filed a judgment lien against the defendant's real estate; that judgment lien remains unsatisfied, and the plaintiff is in possession of the said premises. Schedule A attached to the affidavit recited that on March 9,1973, the plaintiff had filed a motion in the Superior Court for a judgment after default resulting in the following order: "ORDER Granted — $11,200 on First Count; $14,505.98 on the Second and Third Count. Zarrilli, J. 4/27/73." Schedule B of the affidavit recited that on June 22, 1973, in the case of Dorothy H. Farrell v. Alva Gene Farrell, Superior Court, Judicial District of Fairfield at Stamford, No. 16973, a judgment lien was duly recorded on property located in Darien. Schedule C shows a recording of a quitclaim deed from the plaintiff to one William Selsberg, Trustee, on April 18, 1977, and schedule D shows that the said William Selsberg, Trustee, quitclaimed the same premises to the plaintiff on the same day. The defendant filed a counter-affidavit signed by Richard H. G. Cunningham, his attorney. In examining that affidavit the trial court observed that some of the allegations of the counter-affidavit appeared to be an attack upon the underlying judgment because of purported fraud in securing the judgment. Even granting that such an attack may be made on the judgment, the trial court held that our summary judgment rules require the affidavit to "set forth such facts as would be admissible in evidence." Practice Book, 1978, § 381. The court then found that paragraphs three, four, five and seven in the counter-affidavit were conclusory, setting forth no facts from which the court could infer the conclusions asserted. The court also found that paragraphs six and eight reasserted allegations of defenses previously ordered expunged by the court. It thereupon granted the summary judgment from which the defendant appealed to this court. When a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by § 380 of the 1978 Practice Book, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him. Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). Such affidavits, documents and pleadings will be considered in determining whether there is a genuine issue as to any material fact. 10 Wright & Miller, Federal Practice & Procedure § 2722; 73 Am. Jur. 2d, Summary Judgment § 32. Until 1963, our summary judgment procedure in Connecticut was narrowly restricted. The 1963 Practice Book, however, greatly expanded the scope of the procedure with the adoption of new rules substantially similar to the procedure provided in the federal rules. Plouffe v. New York, N.H. & H. R. Co., 160 Conn. 482, 487, 280 A.2d 359 (1971); Fed. R. Civ. Proc. 56 (c). The presence, therefore, of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. A party must substantiate his adverse claim by specifically shoving that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). Since an evidentiary showing is indispensable, general averments will not suffice to show a triable issue of fact. Moreover, mere conclusions are insufficient as is evidence which would be inadmissible upon the trial, such as hearsay. Indeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists. In sum, to oppose a motion for summary judgment successfully, the defendant must recite specific facts in accordance with Practice Book, 1978, § 380 and 381 which contradict those stated in the plaintiff's affidavits and documents. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22 (1968). The record reveals that the defendant failed to comply with the provisions of Practice Book, 1978, § 381. We thus affirm the action of the trial court in concluding that the defendant's counter-affidavit failed to meet the requirements of law. There is no error. In this opinion the other judges concurred. "AFFIDAVIT STATE OF CONNECTICUT) ) ss. Stamford, July 13, 1978 FAIRFIELD COUNTY ) I, Richard II.G. Cunningham, being duly sworn, hereby depose and say: 1. I make this statement of my own personal knowledge. 2. I am the attorney for the Defendant in the above-entitled matter. 3. I have deposed the plaintiff in the above-entitled matter and her answers are not consistent with the "Affidavit of Debt" attached hereto which was signed in the action on which the Judgment Lien is premised. 4. On the basis of my own personal knowledge of contradictory statements of the Plaintiff, the claimed "agreement" of the Plaintiff's Affidavit of April 27th, 1973, did not exist, and said affidavit was false. 5. On the basis of my own personal knowledge, the statement made by the Plaintiff in the affidavit of April 27th, 1973, that the Defendant was bound by a Louisiana Court decision to pay support in the amount of $175 per month, was false. 6. On the basis of my own seareh of the Land Records of the Town of Darien, Connecticut, at the time of April 27th, 1973, the parties were joint tenants of the property in question. 7. The "Judgment" of April 27th, 1973, if not otherwise defective, is invalid because of the fact that it eliminated certain obligations of the Plaintiff to the Defendant as joint tenants and was procured by fraud on the court. 8. The Judgment of April 27th, 1973 was superceded by a Judgment of Dismissal, a copy of which is attached hereto. 9. Further the deponent testifieth not. Richard H.G. Cunningham" Practice Book, 1978, § 381 requires that supporting and opposing affidavits should be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. An attorney should not ordinarily become a witness on behalf of his client in the same cause on a material matter. While the attorney is not disqualified from testifying, it is ethically improper. Miller v. Urban, 123 Conn. 331, 334, 195 A. 193 (1937); Code of Professional Responsibility, DR 5-101. "[Practice Book, 1978] Sec. 380 —proceedings upon motion. A motion, for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the court otherwise directs. The adverse party prior to the day the ease is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings." The 1963 amendment to the Federal Rule of Civil Procedure 56(e) which provides that on a properly supported motion for summary judgment, an adverse party may not rest on his pleadings, but must set forth specific facts showing a genuine issue for trial, is not intended to modify the burden of the moving party. The purpose of the 1963 amendment was to overturn a line of eases, primarily in the Third Circuit, holding that a party opposing summary judgment could successfully create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation to a well pleaded complaint. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159 n.20, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). "[Practice Book, 1978] Sec. 382. •—when appropriate documents are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just."

Borden, J. The state appeals, with the permission of the trial court, from the judgments of that court dismissing with prejudice the two informations against the defendant. The decisive issue is whether, in the light of the recent case of State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986), a trial court may dismiss an information on the ground that the affidavit supporting the arrest warrant did not establish probable cause. We hold that a trial court may not, and we find error. The defendant, who was on probation, was arrested pursuant to a warrant, supported by affidavit, and charged with sexual assault in the fourth degree and risk of injury to a child. Shortly thereafter, he was arrested and charged with violation of probation. That arrest was also pursuant to a warrant supported by an affidavit which restated in shorter form essentially the allegations recited in the first affidavit. The defendant moved to dismiss both informations on the ground that the underlying affidavits did not establish probable cause. On April 1, 1985, the trial court concluded that the affidavits did not establish probable cause in either case and dismissed both informations, with prejudice, pursuant to Practice Book § 815 (9). These combined appeals followed. The state argues that State v. Fleming, supra, which was decided on January 7,1986, subsequent to the decision of the trial court in this case, mandates reversal. In Fleming, the court overruled State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965) (insufficient arrest warrant affidavit deprives court of personal jurisdiction over the defendant), and held that "an illegal arrest imposes no jurisdictional barrier to a defendant's subsequent prosecution . . . . " State v. Fleming, supra, 262-63. Thus, Fleming established that the insufficiency of an arrest warrant affidavit to establish probable cause cannot serve as the basis for a motion to dismiss an information. It is clear that Fleming controls this case. The defendant argues that the state should not be permitted to rely on Fleming in this appeal because the state did not question the validity of Licari in the trial court. We disagree. We have recognized that the rule requiring claims on appeal to have first been made at trial "applies to the state as well as to the defendant." State v. Martin, 2 Conn. App. 605, 612, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). In this case, however, the reasons for that rule do not suggest that it be applied to bar consideration of Fleming, and sound appellate discretion counsels otherwise. "The policies behind the requirement that claims be made at trial in order to be reviewed on appeal"; State v. Cosby, 6 Conn. App. 164,173, 504 A.2d 1071 (1986); are principally to permit the trial court to correct any errors before it is too late, and thus to conserve judicial resources and to avoid the spectacle of the trial court proceedings becoming "a Kafkaesque academic test which [the trial judge] may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him." Id., 174. Although prior to Fleming our Supreme Court had hinted that the continued vitality of Licari was suspect; see, e.g., State v. Heinz, 193 Conn. 612, 629, 480 A.2d 452 (1984); State v. Gallagher, 191 Conn. 433, 438-39, 465 A.2d 323 (1983); when the trial court rendered its decision in this case, Licari was still the law and the trial court was obligated to apply it. Thus, there is no reason to believe that, had the state argued the inapplicability of Licari in the trial court, the decision of the trial court would have been any different. Furthermore, while this appeal was pending, Fleming was decided, unequivocally stripping the trial court's ruling of its theoretical underpinnings. To permit the trial court's ruling to stand and thus to end these prosecutions on a basis which is no longer the law would be to deny "recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws." Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984). The defendant also argues that the trial court's ruling was based on Practice Book § 815 (9) and that Fleming did not eliminate that Practice Book provision. Practice Book § 815 (9) provides for dismissal of an information because of "[djefenses or objections based on the insufficiency of the affidavit relied upon for the issuance of the arrest warrant. ." The defendant argues in effect that Practice Book § 815 (9) provides a sufficient independent basis for the trial court's action without regard to Fleming. We disagree. Practice Book § 815 (9) was specifically based on the now abandoned rule of Licari. See Orland, Connecticut Criminal Practice § 815.2. Thus, the reason for the rule no longer exists. See Southland Corporation v. Vernon, 1 Conn. App. 439, 446 n.6, 473 A.2d 318 (1984). To accept the defendant's argument would be to render Fleming a nullity. There is error in each case, the judgments dismissing the informations are set aside and the cases are remanded for further proceedings according to law. In this opinion the other judges concurred.

Peters, J. This appeal concerns the applicability of principles of waiver and res judicata to a defendant's claim of double jeopardy. The defendant, Guillermo Aillon, is charged by separate indictments with three murders alleged to have occurred in August of 1972. His two previous trials on those charges failed to result in a final judgment of either conviction or acquittal. The defendant by motion in the trial court sought dismissal of the charges against him, claiming that a third trial would subject him to double jeopardy in violation of the fifth amendment to the United States constitution. The trial court's refusal to permit an evidentiary hearing on this claim and its consequent denial of the defendant's motion to dismiss are the basis for the defendant's present appeal to this court. In the trial court, the defendant's motion to dismiss was denied because the court concluded that the defendant had waived his right to the defense of double jeopardy by failing to raise this claim in advance of his second trial. Alternatively, on this appeal, the state urges that the action of the trial court may also be sustained because a previous adjudication of the double jeopardy issue, after the defendant's second trial, precludes reconsideration of that claim now. Because it is evident that the lengthy history of State v. Aillon forms the core of the arguments advanced by both the defendant and the state, a review of that history is necessary. In 1973, after the defendant's first trial, a jury found him guilty of the three counts of murder with which he is presently charged. Thereafter, upon discovering that the trial judge had engaged in an ex parte conversation with a juror during the course of deliberations, the defendant successfully petitioned for a new trial. On the state's appeal, this court set aside the order for a new trial. Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975). We agreed with, the lower court, J. Shea, J., that the ex parte conversation had intruded upon the defendant's constitutional right to be present at every stage of the trial; id., 546; and to be assisted by counsel; id.; and we also agreed that it was therefore the state's burden to demonstrate that the constitutional error was harmless beyond a reasonable doubt. Id., 548. We found error, however, in the lower court's exclusion from the evidence of juror testimony as to conditions which might have mitigated the prejudicial effect of the impropriety. Id., 553-54. We therefore remanded for further proceedings. A second hearing on the defendant's petition for a new trial ensued, but this time the lower court, O'Sullivan, J., denied it. Upon a new appeal by the defendant, we set the judgment aside and directed that the petition for new trial be granted. Aillon v. State, 173 Conn. 334, 340, 377 A.2d 1087 (1977). Since the record contained no credible evidence as to the contents of the ex parte conversation; id., 339; we concluded that the lower court was in error in determining that the conversation was harmless beyond a reasonable doubt. Id., 340. The defendant's second trial commenced on October 26, 1978. At no time prior to that date did he raise a claim that his retrial was barred by the prohibition against double jeopardy. The second trial ended with a declaration of mistrial after the jnry failed to return a verdict. Thereafter the defendant moved for a judgment of acquittal. The motion for acquittal raised three claims: double jeopardy, insufficiency of the evidence, and acquittal required in the exercise of sound judicial discretion. The defendant's double jeopardy claim was based on the legal theory that, the first trial having ended in the functional equivalent of a mistrial, and the second trial having ended in a mistrial per se, further prosecution should be prohibited. In characterizing the first trial as the functional equivalent of a mistrial, the defendant alleged that the guilty verdict in his first trial "resulted from the judge requiring the jury to deliberate for an unreasonable length of time." The trial court, Quinn, J., considered the defendant's claims on the merits and denied the motion for acquittal. The defendant appealed. In his brief, he persisted in characterizing the first trial as the functional equivalent of a mistrial and, in support of that theory, referred to the trial judge's improper conversation with the juror, and to "the first trial judge's improper coercion of the jury to break its declared deadlock." In holding that a third trial was not barred by double jeopardy, we accepted, arguendo, the defendant's characterization of the first trial as a mistrial. State v. Aillon, 182 Conn. 124, 135, 438 A.2d 30 (1980). Notwithstanding such a view, we were not persuaded that the fact of two mistrials posed a bar to reprosecution where, as in the present case, "the defendant has exercised his right to control the course of the proceedings." Id., 137-38. More than a year after our rejection of the defendant's first double jeopardy claim, the defendant made the motion to dismiss which is the subject of this appeal. In that motion, the defendant renewed his argument that a third trial was barred by double jeopardy. Again the claim was based on the ex parte conversation in the first trial. The defendant argued that judicial overreaching in that trial had foreclosed the defendant's right to have his guilt or innocence determined by the particular tribunal summoned to sit in judgment on him. To establish the factual basis for the claim of judicial overreaching, the defendant asserted that the two previous factual findings concerning the ex parte conversation were res judicata with respect to the motion to dismiss. In addition, he moved for a third evidentiary hearing to establish the bad faith on the part of the first trial judge which allegedly motivated the ex parte conversation. In denying the motion, the trial court relied on State v. Jones, 166 Conn. 620, 630, 353 A.2d 764 (1974), for the proposition that the proper time for bringing the double jeopardy motion, based entirely on events which transpired during the first trial, was before the commencement of the second trial, and that, in failing to move in a timely manner, the defendant had waived the defense. The trial court noted that the motion's factual basis was known to the defendant before the second trial, and that the motion's legal basis had previously been articulated in the courts. The defendant has raised three issues on appeal. First, relying on language in State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422 (1971), that a new trial "is 'new' in every sense"; id.; he argues that the declaration of a mistrial at the end of the second trial rendered that second trial a nullity in every respect. Thus, argnes the defendant, he should be entitled to raise the present claim regardless of his failure to do so before the second trial. Second, he claims that the alleged waiver was not voluntary, knowing and intelligent and therefore was constitutionally invalid. Third, he challenges the trial court's conclusion that the legal theory underlying his motion to dismiss was articulated before the second trial commenced. We do not reach the merits of the defendant's claim that he has not waived his claim of double jeopardy. Even if we were to resolve the waiver issue in the defendant's favor, and thereby hold that he remained entitled to raise the issue of judicial overreaching after his second trial, we would nonetheless be obliged to hold that the rejection of his previous claim of double jeopardy, affirmed by us in State v. Aillon, 182 Conn. 124, 438 A.2d 30 (1980), is res judicata with respect to the claim he now wishes to advance. We therefore affirm the order of the trial court denying the defendant's motion for dismissal of the charges against him and for an evidentiary hearing. Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), Judgments §19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3. In principle, res judicata applies to criminal as well as civil proceedings. Sealfon v. United States, 332 U.S. 575, 578, 68 S. Ct. 237, 92 L. Ed. 180 (1948); Steele v. United States No. 2, 267 U.S. 505, 507, 45 S. Ct. 417, 69 L. Ed. 761 (1924); United States v. Oppenheimer, 242 U.S. 85, 87, 37 S. Ct. 68, 61 L. Ed. 161 (1916); State v. Camera, 132 Conn. 247, 249, 43 A.2d 664 (1945); see also Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Wilson, 180 Conn. 481, 486, 429 A.2d 931 (1980) (applying the related doctrine of collateral estoppel to criminal oases). Res judicata may operate to preclude relitigation by a criminal defendant as well as by the state. Steele v. United States No. 2, supra; see also United States v. Colacurcio, 514 F.2d 1, 6 (9th Cir. 1975); State v. Wilson, supra; People v. Scott, 93 Misc. 2d 1074, 1082-83, 405 N.Y.S.2d 169 (1978) (applying the doctrine of collateral estoppel to preclude a defendant from relitigating in a second prosecution an issue determined adversely to him in a prior prosecution). Nonetheless, in applying the doctrine of res judicata to a defendant's constitutional claim, special policy considerations must be taken into account. The interest in achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights. Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Clark v. Nickeson, 321 F. Sup. 415, 420 (D. Conn. 1971). Whether two claims in a criminal case are the same for the purposes of res judicata should therefore be considered "in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, supra, 579; United States v. Kramer, 289 F.2d 909, 915 (2d Cir. 1961); cf. Vestal, "Issue Preclusion and Criminal Prosecutions," 65 IowaL. Rev. 281 (1980). In the present case, the predicate for application of the doctrine of res judicata is established by the valid final judgment denying, on the merits, the defendant's previous claim of double jeopardy. State v. Aillon, 182 Conn. 124, 126, 138, 438 A.2d 30 (1980). A judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest. 1 Restatement (Second), Judgments §13, comment e. We note that, for the purposes of appeal, a denial of a claim of double jeopardy is a final judgment. State v. Seravalli, 189 Conn. 201, 206n, 455 A.2d 852 (1983); State v. Moeller, 178 Conn. 67, 69, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979). Although the standards for finality regarding appellate review and res judicata are not necessarily congruent; 1 Restatement (Second), Judgments § 13, comment b; there was nothing tentative or conditional about the denial of the defendant's first double jeopardy claim, and the claim was given careful consideration by the lower court, whose judgment was then affirmed on appeal. See United States v. Ajimura, 598 F.2d 510, 513 (9th Cir. 1979) (precluding, via res judicata, a second pretrial claim of double jeopardy). What remains to be determined is whether the present claim of double jeopardy is sufficiently similar to the previous claim to warrant our giving pre-clusive effect to the prior judgment. Bearing in mind the special consideration to which a defendant's constitutional claims are entitled, we conclude nonetheless, on the present record, that the defendant may not relitigate the question of double jeopardy. The defendant's previous double jeopardy claim had as a factual basis the first trial judge's improper contact with a juror. From that basis, the defendant argued unsuccessfully that the first trial was the functional equivalent of a mistrial, and that two successive mistrials barred reprose-cution. The present claim relies on precisely the same facts, sought to be supplemented with evidence purporting to show the judge's bad faith, to advance a legal argument only slightly different; i.e., that the judge's misconduct foreclosed the defendant's right to be judged by the first tribunal convened to judge him. This slight shift in eviden-tiary basis and substantive theory of law does not constitute a new claim. 1 Restatement (Second), Judgments §25, comments b, d; accord Steele v. United States No. 2, 267 U.S. 505, 507, 45 S. Ct. 417, 69 L. Ed. 761 (1924). That identical grounds for relief may he supported by different factual allegations or different legal arguments or couched in different language renders those grounds no less identical. Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). No valid reason has been alleged as to why the defendant could not have brought the present claim when the prior one was brought. Even if we confine ourselves to cases of the United States Supreme Court, we agree with the trial court that the principle that judicial overreaching may bar reproseeution had repeatedly been enunciated before the defendant made his motion for acquittal in 1979. E.g., Lee v. United States, 432 U.S. 23, 33-34, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 611, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976); United States v. Jorn, 400 U.S. 470, 485 n.12, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); United States v. Tateo, 377 U.S. 463, 468 n.3, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); Downum v. United States, 372 U.S. 734, 736, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); Gori v. United States, 367 U.S. 364, 369, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961). The defendant conceded at oral argument that there was no procedural bar to the conjunction of the present motion to dismiss with the 1979 motion for acquittal. Two evidentiary hearings have already investigated the incident in question. The trial judge's misconduct has been the basis for a successful motion to set aside the first verdict; it has been the basis for an unsuccessful claim of double jeopardy; it cannot now be the basis for yet a renewed claim of double jeopardy. There is no error. In this opinion the other judges concurred. In granting the petition after an evidentiary hearing the court, .7. Shea, <7., found that at 10 p.m. on the jury's final night of deliberations, one of the jurors had asked to speak to the trial court judge " 'with regard to a personal matter.' " Aillon v. State, 168 Conn. 541, 544, 363 A.2d 49 (1975). "A short time later, the trial judge, accompanied by the sheriff, appeared at the doorway of the jury room, and juror Bead started to relate her problem to the judge. The judge, however, requested that she step out and he escorted her to the back of the jury box. The ensuing conversation lasted only a few minutes. Juror Bead, who appeared nervous and upset, explained that she wanted to go home to Massachusetts but that some of the jurors wanted to adjourn for the evening although she and others wanted to continue deliberating. She then asked the judge, 'Can we stay?' The judge responded, 'Yes, you can stay.' "The other jurors could not hear the conversation, although one juror testified that he thought he heard the trial judge say, 'You have to stay.' What juror Bead said on her return to the jury room is disputed, but some jurors felt that she said the judge had told them to remain; others felt that the judge merely indicated that they could stay. At any rate, when the foreman asked what the trial judge had said, juror Bead responded, in the presence and hearing of the other jurors, 'Wo can stay or we can go home but if we go home we come back tomorrow, the next day and the next day.' The jury thereupon continued deliberating. Six hours later, at 4:25 a.m. on Saturday, September 1, 1973, the jury reached their verdict of guilty on each of the three counts of murder. "Although the plaintiff and his counsel were present in the courthouse at all times on the evening in question, the trial judge did not inform them of either the note or the ensuing conversation with juror Bead." Id., 544-45. This was the second time that this court had reviewed the case. Our first encounter was a decade ago, before the first trial, when we ordered a new hearing on the defendant's motion for pretrial bail. State v. Aillon, 164 Conn. 661, 662-63, 295 A.2d 666 (1972). The motion for judgment of acquittal contained, inter alia, the following allegations: "4. The first trial started on May 18, 1973 and ended in the early morning hours of September 1, 1973. "5. During the jury deliberations in connection with the first trial, the jury reported that it was 'unable to come to a unanimous decision.' The Judge gave the 'Chip Smith' charge and allowed the jury to deliberate until 4:37 A.M. This amounted to a period of about eighteen and one-half hours of continuous deliberations after which a guilty verdict was returned. "6. The judge . . . was aware of the fact that following the 'Chip Smith' charge, some of the jurors who had been deliberating between eleven and twelve hours at that time, were tired and wanted to go home for the night. Aillon v. State, 168 Conn. 541, 544 [363 A.2d 49] (1975), Aillon v. State, 173 Conn. 334, 336 [377 A.2d 1087] (1977). He never informed counsel for the defendant of that fact, and the jury verdict as a result of the first trial resulted from the judge requiring the jury to deliberate for an unreasonable length of time. The decision of Hon. John Shea in connection with the defendant's new trial petition referred to the 'obvious weariness and strain some of the jurors must have felt.' Aillon v. State, 168 Conn. 541, at 545 [363 A.2d 49 (1975)]. The deliberations in the first trial covered a span of forty-eight hours. "9. Furthermore, there were two complete trials on defendant's new trial petition in this matter. As a result of the first hearing, Hon. John Shea granted the defendant's petition for a new trial. The State appealed to the Supreme Court and a new trial of that petition was ordered." The only issue considered on appeal was the claim of double jeopardy. The other claims were dismissed as being from other than a final judgment. State v. Aillon, 182 Conn. 124, 126, 438 A.2d 30 (1980). The defendant intended to offer the testimony of two witnesses. The first was a newspaper reporter who, the defendant alleged, would testify as to repeated statements by the first trial judge demonstrating his prejudice, bias and contempt for the defendant. The second was the clerk of the first trial court who, the defendant alleged, would testify as to the first trial judge's failure to include in the record the note from the jury which initiated the ex parte conversation. See footnote 1, supra. Although we do not reach the merits of the defendant's second claim, we point out that this court has never held that a waiver of the defense of double jeopardy, to be constitutionally valid, must be knowing, voluntary and intelligent. See State v. Aillon, 182 Conn. 124, 130-31 n.5, 438 A.2d 30 (1980). While the cited scholarly sources restrict their scope to civil matters, the principles they articulate are applicable to criminal proceedings as well. 1 Eestatement (Second), Judgments (1982) p. 2. See Gaitan v. United States, 295 F.2d 277, 279-80 (10th Cir. 1961), cert. denied, 369 U.S. 857, 82 S. Ct. 939, 8 L. Ed. 2d 15 (1962). Collateral estoppel, or issue preclusion, is the doctrine that bars relitigation, in a second action between the same parties brought upon a different claim, of issues already determined in the first action. Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L. Ed. 195 (1876); 1 Eestatement (Second), Judgments § 27 (1982); James & Hazard, Civil Procedure (2d Ed.) § 11.3. The doctrine of collateral estoppel, unlike that of res judicata, operates to bar only matters actually litigated in the prior action. 1 Eestatement (Second), Judgments, supra; James & Hazard, supra, § 11.17. 1 Restatement (Second), Judgments §25, comment b, provides in part: "A mere shift in the evidence offered to support a ground held unproved in a prior action will not suffice to make a new claim avoiding the preclusive effect of the judgment." 1 Restatement (Second), Judgments §25, comment d, provides: "d. Successive actions changing the theory or ground. Having been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred." In Steele v. United States No. 1, 267 U.S. 498, 499, 45 S. Ct. 414, 69 L. Ed. 757 (1924), the defendant had unsuccessfully challenged the legality of a search, arguing that the accompanying warrant was not issued upon probable cause, that it did not particularly describe the place to be searched or the property to be seized, and that the search conducted under the warrant was unreasonable. Id. A second claim, challenging the competency of the evidence of probable cause, was barred by res judicata. Steele v. United States No. 2, 267 U.S. 505, 507, 45 S. Ct. 417, 69 L. Ed. 761 (1924). Sanders, although it does not involve the doctrine of res judicata per se, analyzes the federal statutory provisions; 28 U.S.C. § § 2244, 2255; which permit courts to refuse to hear repetitive applications for post-conviction relief. Controlling weight may be given to a denial of a prior application only if, inter alia, the ground presented by the subsequent application was determined adversely to the applicant in the prior application. Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). Thus, where it had been previously determined on direct appeal that the jury which convicted the defendants had not been improperly influenced by news accounts, the related fact that the trial judge had questioned the jurors in camera, to assay the effect of the publicity, could not be the basis for an application for postconviction relief. Polizzi v. United States, 550 F.2d 1133, 1136 (9th Cir. 1976); see 4 Wharton, Criminal Procedure (12th Ed. 1976) § 649; 3 Wright, Federal Practice & Procedure (1982) § 602. During oral argument on November 3, 1982, the following colloquy occurred: "The Court: And this argument might have been made when the prior double jeopardy issue was raised in this court? "Counsel for Defendant: No. "The Court: It might have been made? "Counsel: It might not have been made. There was no eviden-tiary basis for it. "The Court: Okay. But at the time when the double jeopardy issue was first raised at the end of the second trial, there was then as much of an opportunity as there is now to raise this issue. "Counsel for Defendant: No, because when that was raised at the end of the second trial it was in connection with a motion for judgment of acquittal. That has to do only with the sufficiency of the evidence. In order to raise the double jeopardy issue that we now seek to raise, we are required to put on evidence to show exactly what was in the mind of [the first trial judge]. "The Court: I'm not making myself clear. This issue might have been raised to the extent that you wanted to raise it with an evidentiary hearing. It might, however, have been in conjunction with the hearing at that time. "Counsel for Defendant: Well, it would not have been in connection with the motion for judgment of acquittal. Could we, after the mistrial, the second time, have filed a motion to dismiss, before Judge Quinn, on double jeopardy grounds? 1 suppose we could have done it before anybody, and we've done it. That's what it's all about. We have done that. I don't think we're required to do it at the conclusion of the mistrial. I think we're only required to do it prior to the start of the third trial. "The Court: Well, do you feel that if we were to decide this issue against you, you eould then go back in the trial court and file another motion on double jeopardy, on some double jeopardy ground that you presently perhaps haven't thought of, and then come baek up here again another year from now? "Counsel for Defendant: Well, I think that I've thought of the only remaining double jeopardy issue here. But, to answer your question: I think, yes."

Pakskey, J. This case involves a claim for damages caused by the installation of inadequate and defective septic tank systems. Judgment was rendered for the plaintiff and the defendant has appealed. The defendant assigns error in the trial court's finding that the failure of the septic tank systems was proximately caused by the defendant's negligence. The defendant also claims that the amount of damages awarded was erroneous because it was based on an improper standard. We find no error. The court found the following facts: On or about April 1, 1978, the plaintiff entered into two building contracts, one with Michael Pankiw and the other with Carmelo Franco, to build for each of them a dwelling on the property each owned. The lots of the owners were adjoining and located on Village Hill in the town of Lebanon. Each agreement obligated the plaintiff to install a septic system in connection with the construction of the residences. Sometime in May, 1978, the plaintiff contacted the defendant, a licensed septic installer, and asked him if he could put in a septic system at the rear of each house and how much it would cost. The defendant replied that he could but that he had to consult the town sanitarian. About a week later the defendant stated he would put the systems in for $2400. The plaintiff then told the defendant to put them in and when they were completed the contract price was paid. At that time, the plaintiff had very little knowledge about installation of septic systems and relied on the defendant to put in a reliable system in accordance with the state public health code. The septic system on the Franco lot began to overflow and cause offensive odors in the early fall of 1978 and the septic system on the Pankiw lot began to overflow and cause offensive odors in February, 1979. The plaintiff complained to the defendant in each instance. On May 9 and May 21, 1979, the plaintiff sent the defendant letters demanding that the septic systems be corrected. The defendant ignored each letter. Thereafter, the plaintiff hired James Burns to remedy the situation at a cost of $5412. The old systems had to be ripped out and new systems installed. Burns used thirty-seven loads of fill and nine loads of loam for one lot and twenty-nine yards of fill for the other lot in installing the septic systems. When the defendant contracted to do the jobs in May, 1978, he relied on the opinion of the town sanitarian as to the size and layout of the systems. There was a brook to the rear of the two lots in question. After consultation with the sanitarian, the defendant, on the Franco lot, instead of laying out the system according to the state code, "squeezed" the lines so that the three lines running from the distribution box were closer to each other than the state code permitted. After consultation with the town sanitarian, he also installed one tank nearer to the dwelling than the code permitted. While digging the trench on the Franco lot, ground water appeared in the trench but he continued with the installation of the systems. In the fall of 1979, the defendant did examine the Franco system but no corrective measures were taken. When the defendant was notified of the failure of the Pankiw septic system he requested a Mr. Sehur of the state health services to investigate. Schur's opinion, based on percolation tests made on each lot, was that a plan by an engineer would be necessary as the properties in their present condition were unsuitable for sewage disposal. An engineer engaged by the defendant testified to the same effect. The accuracy of their opinion was, however, put into doubt because of the location of the holes for the percolation tests upon which they relied; the plaintiff's witnesses testified that it was inappropriate to dig test holes between the brook and the septic system's leeching fields. The engineer's opinion was based solely on Schur's report and the assumption that the systems were installed according to the state code. In July, 1979, Manuel Cardoza, Jr., the principal sanitarian of the state department of health, upon inspection of the Franco and Pankiw septic systems, found that in both cases the systems were not only poorly constructed but that the distribution boxes, tile lines and trenches were in a number of instances installed in violation of the provisions of the public health code. It was his opinion that the septic failure was due to poor workmanship and the violation of the code. The trial court found that the defendant was negligent in the execution of his contract with the plaintiff, that such negligence resulted in the failed systems in question, and that the cost of correcting the faulty systems was $5412. It rendered judgment accordingly. "The existence of a duty of care is an essential element of negligence. . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). A builder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions. Id., 381; Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975). The defendant was and held himself out to be a licensed septic installer. The plaintiff, on the other hand, had very little knowledge about installation of septic systems and relied on the defendant to put in a reliable system in accordance with the state public health code. The defendant undertook to install an adequate septic system on each lot and he failed to do so. Not only did he breach the code but the systems, when exposed in July, 1979, revealed the poor workmanship of their installation which had resulted in their failure. Although the defendant disputes this conclusion, the trier's conclusion, which finds support in the evidence, must stand. Coburn v. Lenox Homes, Inc., supra, 386. The trial court was also correct in assessing damages. The defendant was under a duty to install adequate septic systems. He negligently failed to do so. The cost of correcting this faulty situation, as reflected in the repair bill, may be utilized as proof of the measure of the plaintiff's loss proximately resulting from the defendant's negligence. Scribner v. O'Brien, Inc., supra, 405. There is no error. In this opinion the other judges concurred.

Cotter, C. J. The sole issue raised in this appeal is whether the trial court's failure to give the "no unfavorable inference" instruction mandated by General Statutes § 54-84 (b) is reversible error even when the defendant's trial counsel failed to object to its omission from the charge delivered by the trial court. Because we find error in the trial court's failure to give the required instruction to the jury, we do not discuss the facts except insofar as they relate to the jury instruction here at issue. At the close of the state's case, defense counsel informed the court that the defendant would not testify. The court inquired into the defendant's understanding of his decision not to testify, counsel proceeded with the argument to the jury, and thereafter the court gave its instructions to the jury. The defense counsel took various exceptions to the charge, but did not object to the court's failure to give the "no unfavorable inference" instruction contained in General Statutes § 54-84 (b). The general rule is that, "[o]nly in [the] most exceptional circumstances . . . will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court." State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); accord, State v. Williams, 182 Conn. 262, 267, 438 A.2d 80 (1980); State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Rogers, 177 Conn. 379, 418 A.2d 50 (1979); State v. Adams, 176 Conn. 138, 406 A.2d 1 (1978). The Practice Book provides that this court "shall not be bound to consider error as to . . . the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing." Practice Book, 1978, § 854. Although the defendant failed either to request the instruction or to object to its omission, this court will exercise the discretion provided in § 854 and will consider the defendant's claim. Our exercise of discretion is predicated on the fact that, in this case, the legislature statutorily established a new procedure concerning the rights of accused persons who choose to exercise their fifth amendment right not to testify. Where the legis latnre has chosen specific means to effectuate a fundamental right, failure to follow the mandatory-provisions of the statute is plain error, reviewable by this court. Practice Book, 1978, § 3063; Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980). See State v. Hernandez, 154 Conn. 698, 700, 229 A.2d 30 (1967). General Statutes § 54-84 (b) reversed prior case law which held that a defendant who did not testify at trial was not entitled to have the jury instructed that his failure to testify should not he considered as an inference against him. State v. Lane, 179 Conn. 327, 426 A.2d 297 (1979); State v. Branham, 171 Conn. 12, 368 A.2d 63 (1976); State v. Ford, 109 Conn. 490, 146 A. 828 (1929); State v. Colonese, 108 Conn. 454, 143 A. 561 (1928). The present statute clearly requires that the court instruct the jury that no unfavorable inferences may he drawn from the defendant's failure to testify. State v. Anonymous (1980-10), 36 Conn. Sup. 583, 421 A.2d 872 (1980). We hold today that this charge must he given unless the defendant requests otherwise. In so holding, we do no more than reaffirm the clear intent of the legislature as expressed in the words of the statute. General Statutes § 54-84 (b); 20 H. R. Proc., Pt. 11, 1977 Sess., pp. 4543-45; 20 S. Proc., Pt. 5, 1977 Sess., pp. 2067-69. As a means of complying with the statute, we suggest that prior to delivering the charge to the jury, the trial court, in the absence of the jury, inquire of the defendant and of counsel if they would like the court to instruct the jury that jurors may not draw unfavorable inferences from the defendant's failure to testify. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. "[General Statutes] See. 54-84. . . . (b) Unless the aeeused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In eases tried to the court, no unfavorable inferences shall be drawn by the court from the accused's silence." Practice Book, 1978, § 3063 provides: "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court." In exceptional circumstances, this court will review a claimed error in the jury instructions whieh was not properly preserved below. See State v. Williams, 182 Conn. 262, 267, 438 A.2d 80 (1980) (claim of deprivation of fair trial); State v. Williams, 173 Conn. 545, 559, 378 A.2d 588 (1977) (appellate counsel's criticism of trial counsel); State v. Bennett, 171 Conn. 47, 59, 368 A.2d 184 (1976) (claim of deprivation of fair and impartial trial guaranteed by the sixth and fourteenth amendments); State v. Van Valkenburg, 160 Conn. 171, 174, 276 A.2d 888 (1970) (federal constitutional rights); State v. Dortch, 139 Conn. 317, 325, 93 A.2d 490 (1952) (capital case). Our holding rests upon the conclusion that this case presents a similarly exceptional situation. We emphasize that this holding does not expand the limitations on review delineated in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and is expressly limited to its precise facts. Here the statute in question had been in effect for four months, yet seems to have escaped the attention of the trial court and the state as well as defense counsel. Had there been any indication that defense counsel had made a strategic decision to sit silently at the close of the charge, and then raise this claim of error if the verdict proved unpalatable; Gigliotti v. United Illuminating Co., 151 Conn. 114, 121, 193 A.2d 718 (1963); we would have refused to review the defendant's claim. Nothing we have said today in any way reduces the responsibility of trial counsel to make all objections to the trial court so that correction may be made at the time of trial. State v. Yorczyk, 167 Conn. 434, 437, 356 A.2d 169 (1974); Prystash v. Best Medium Publishing Co., 157 Conn. 507, 512, 254 A.2d 872 (1969); Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 85, 245 A.2d 129 (1968); Towhill v. Kane, 147 Conn. 191, 193, 158 A.2d 251 (1960). By way of comparison, the parallel federal statute, 18 U.S.C. $ 3481, states that the failure of the accused to testify ". . . shall not create any presumption against him." The United States Supreme Court found that the statute was "an implied direction" that the trial judge instruct the jury accordingly if the defendant so requests. Bruno v. United States, 308 U.S. 287, 60 S. Ct. 198, 84 L. Ed. 257 (1939). The Supreme Court held that refusal to grant such an instruction was not merely a technical error. The court stated that "the right of an accused to insist on a privilege which Congress has given him" is a matter of "a very different order of importance"; Bruno v. United States, supra, 294; and reversed the conviction because the trial judge failed to give the requested "no inference" instruction. In contrast to the federal statute at issue in Bruno, the Connecticut statute specifically states that the instruction shall be given unless the defendant requests otherwise. The state argues that the charge, even if given, would only have emphasized the defendant's failure to take the witness stand. The short answer to this argument is provided by Justice Frankfurter: "To the suggestion that it benefits a defendant who fails to take the stand not to have the attention of the jury directed to that fact, it suffices to say that, however difficult it may be to exercise enlightened self-interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose. And when it is urged that it is a psychological impossibility not to have a presumption arise in the minds of jurors against an accused who fails to testify, the short answer is that Congress legislated on a contrary assumption and not without support in experience. It was for Congress to decide whether what it deemed legally significant was psychologically futile. Certainly, despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify us in disregarding the will of Congress by a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause 'shall not create any presumption against him.' " Bruno v. United States, 308 U.S. 287, 294, 60 S. Ct. 198, 84 L. Ed. 257 (1939). Accord, United States v. Garguilo, 310 F.2d 249, 252 (2d Cir. 1962) (Friendly, J.). The wisdom of the Connecticut legislature in such matters is no less entitled to our respect.

David M. Shea, J. In this suit on a debt the plaintiff obtained judgment against the defendant after a default had been entered following the denial of the defendant's motion to erase for lack of service upon him. The defendant has appealed and has assigned as the only error claimed the denial of his motion to erase. The plaintiff initiated this proceeding by obtaining an ex parte order for a prejudgment remedy of garnishment of any assets of the defendant held by two of his debtors. It appears from the return that after serving the two debtors the sheriff searched for the defendant in several towns, including Cheshire where the summons indicated that he resided, but was unable to locate him in order to make service upon him. The return further recites that service was made upon the secretary of the state as the agent and attorney for the defendant pursuant to statute, and that service was also made upon the defendant by registered mail sent to his last-known place of abode in New Haven, but the letter was returned marked "addressee unknown." The claim of the plaintiff that service upon the defendant through the secretary of the state and by registered mail sent to his last-known address is authorized by General Statutes § 52-59b (c) is unsound. The statute expressly applies only to nonresidents of this state. Not only is there nothing in the record to indicate that the defendant is a nonresident, but the summons and the sheriff's return indicate that he was a resident, although his address was unknown to the plaintiff. The defendant is correct in contending that no valid service has been made upon him which would give the court jurisdiction over his person. There is no substitute for "in hand" or abode service in accordance with General Statutes § 52-54, where jurisdiction over the person of a resident individual is sought, except with respect to suits for damages caused by motor vehicles. See General Statutes § 52-63. The trial court concluded that the motion to erase should be denied because the court had acquired jurisdiction quasi in rem with respect to any assets of the defendant held by his two debtors, who were properly served. "Constructive service of process upon a defendant in a proceeding against specific property of that defendant within the jurisdiction will enable the court to render a decree binding on the property." Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173 (1960), overruled on other grounds, Hodge v. Hodge, 178 Conn. 308, 422 A.2d 280 (1979). "The court acts by virtue of its jurisdiction over the garnishee and its power to compel him to satisfy the execution to the extent of his indebtedness." Parker, Peebles & Knox v. El Saieh, 107 Conn. 545, 554, 141 A. 884 (1928). In exercising quasi in rem jurisdiction the court is adjudicating the rights of persons in respect to specific property. Shaffer v. Heitner, 433 U.S. 186, 207, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). It is essential, therefore, that reasonable notice be given and that an opportunity to participate in the proceeding be afforded to the persons whose rights may be affected. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The misguided attempt of the plaintiff to serve the defendant under the authority of § 52-59b (c) was wholly ineffectual to satisfy this requirement. See Hyde v. Richard, 145 Conn. 24, 25, 138 A.2d 527 (1958). General Statutes § 52-68 authorizes the issuance of orders of notice to the parties of the institution or pendency of all complaints "when the . . . residences of any such persons in interest are unknown to a party instituting the proceeding." From the record it appears that the plaintiff filed an application for a first order of notice in accordance with this statute one week before the memorandum of decision denying the motion to erase was filed. Unquestionably the court would have been empowered to issue an order of notice to the defendant and ultimately to perfect its quasi in rem jurisdiction over any of his assets in the hands of the garnishees. The mere filing of the motion to erase did not deprive the court of its ability to take the additional procedural steps which were necessary before it might adjudicate the interest of the defendant in the property which was in the custody of the court by virtue of the garnishment. See Felletter v. Thompson, 133 Conn. 277, 281, 50 A.2d 81 (1946). A motion to erase may be granted only where the lack of jurisdiction appears on the record. Practice Book, 1963, § 94. The trial court properly denied the motion in this ease because the record then indicated a valid garnishment of property of the defendant which would ripen into quasi in rem jurisdiction over the defendant's interest in that property once the requisite notice, which the plaintiff was seeking to provide, had been given to the defendant. There is no error. In this opinion Cotter, C. J., Peters and Parskey, Js., concurred. Bogdanski, J., concurred in the result. The judgment file recites that the default was entered for failure to appear. The record indicates, however, that the defendant appeared specially on November 3, 1976, to file his motion to erase and that a general appearance was filed on July 13, 1977, after the motion to erase had been denied but before judgment had been entered. We are not concerned with this discrepancy because the only error assigned or briefed is the ruling of the court upon the motion to erase. In any event a judgment file may be corrected at any time to reflect what actually transpired. Pelton v. Goldberg, 81 Conn. 280, 283, 70 A. 1020 (1908). General Statutes § 52-59b (c) provides as follows: "Any nonresident individual, or foreign partnersMp, or his or its executor or administrator, over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the secretary of the state as its attorney and to have agreed that any process in any civil action brought against such nonresident individual or foreign partnership, or his or its executor or administrator, may be served upon said secretary and shall have the same validity as if served upon such nonresident individual or foreign partnership personally. Such process shall be served by the officer to whom the same is directed upon said secretary by leaving with or at the office of said secretary, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon said secretary addressed to such defendant at his last-known address. The officer serving such process upon said secretary shall leave with said secretary, at the time of service, a fee of five dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in any such action. The secretary of the state shall keep a record of each such process and the day and hour of service." This application was never acted upon because, after it was assigned for the short calendar of July 8, 1977, the defendant filed a general appearance. The general appearance not only indicated that the defendant had actual notice of the pendency of the action, but also that he waived the necessity of any further attempt to serve him. Brown v. Allen, 166 Conn. 174, 176-77, 348 A.2d 666 (1974). It did not, however, preclude him from contesting the denial of his motion to erase upon appeal. Coyne v. Plume, 90 Conn. 293, 297, 97 A. 337 (1916).

Parskey, J. The defendant's sole claim in this appeal is that he was twice placed in jeopardy in violation of the fifth and fourteenth amendments to the United States constitution when he was tried by a jury comprised of five members of the original jury panel and one juror who was added to the panel after the original jurors and alternate had been sworn in. These proceedings began after the defendant was charged in a substituted information with second degree sexual assault in violation of General Statutes § 53a-71 (a) (1). He pleaded not guilty and was tried by a jury. Jury selection began on July 12, 1979. Members of the venire panel were informed, as a group, of the nature of the case, the charges against the defendant and the names and addresses of the defendant and all of the witnesses expected to testify in the case. Following individual voir dire, a panel of six jnrors and one alternate were sworn in and the substituted information and the bill of particulars were read to them. Before the state called its first witness, however, the state's attorney informed the court that he had learned that one of the jurors was acquainted with one of the state's witnesses. At the same time the clerk of the court told both the state's attorney and defense counsel that another juror knew the defendant's uncle. At the court's direction, each of these two jurors was individually questioned by counsel. On the basis of these voir dire examinations, the court excused both jurors on its own motion. Although the defendant indicated to the court that he wanted the first juror excused, he did not press any argument to the effect that the second juror should not be excused as a result of the juror's relationship to the defendant's uncle. The state urged the court to excuse only the second juror. After both jurors were excused, four members of the original jury and one alternate juror remained. Two new jurors were then selected; one became a member of the jury along with the original alternate and the second became the new alternate. During this process, the defendant continued to object, moving to dismiss the charges on the ground that adding jurors in this fashion twice placed the defendant in jeopardy in violation of the fifth amendment to the United States constitution. The trial proceeded with the new jury, ending with the jury being dismissed because they were hopelessly deadlocked. From the denial of his renewed motion to dismiss on the ground of double jeopardy, the defendant appealed to this court. The fifth amendment to the United States constitution provides, in pertinent part "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This clause, which is applicable to the states through the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); establishes the constitutional standards concerning the guarantee against double jeopardy. Crist v. Bretz, 437 U.S. 28, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978); Benton v. Maryland, supra, 795. Because under these standards jeopardy attaches when a jury panel is selected and sworn; Crist v. Bretz, supra, 38; the defendant argues that, once the original jury panel was reduced to five, the trial judge had no alternative but to declare a mistrial and, therefore, that by adding jurors to the remaining members of the original panel, the defendant was put to trial by the court before a second jury. The fact that jeopardy has attached does not mean, however, that a subsequent termination of the trial necessarily mandates a dismissal of the charge on the basis of the double jeopardy clause. There are occasions where, due to manifest necessity, a criminal case may be retried before another jury. Downum v. United States, 372 U.S. 734, 735-36, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949). The inability of the jury to agree, such as ultimately occurred in this ease, is the classic example of such necessity. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824). Discovery by the trial judge during a trial that a member or members of the jury were biased for one side or another has also been held to warrant discharge of the jury and direction of a new trial. Wade v. Hunter, supra; Thompson v. United States, 155 U.S. 271, 274, 15 S. Ct. 73, 39 L. Ed. 146 (1894); Simmons v. United States, 142 U.S. 148, 154-55, 12 S. Ct. 171, 35 L. Ed. 968 (1891). "The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury." Crist v. Bretz, supra, 35. Where, for reasons amounting to manifest necessity, the chosen panel is no longer available, the defendant's interest in that jury can no longer be protected and therefore the double jeopardy clause does not bar a retrial. It should be observed that this is not a case of either prosecutorial or judicial overreaching; see United States v. Jorn, 400 U.S. 470, 485, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); nor does the record support a claim that in dismissing the jurors for cause the judge failed to exercise judicial discretion scrupulously to serve the ends of public justice. Id. See also Arizona v. Washington, 434 U.S. 497, 513-16, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The first juror was excused after the court learned that one of the jurors had been an employee of one of the state's witnesses and that the juror's husband had received commissions for representing that witness as a real estate agent. The second juror was excused when the court learned that he was a good friend of the defendant's uncle, Sala Roy, that he knew that another uncle, Ranie Roy, had gone to prison and that he did not wish to be a juror in the case knowing that the defendant was related to Ranie and Sala Roy. The defendant requested the disqualification of the first juror and did not object to the disqualification of the second juror. The defendant's only objection was interposed when, as a result of these disqualifications, the court was confronted with a jury of five and directed that two addional jurors be drawn instead of declaring a mistrial. Because a five-member jury is constitutionally impermissible in a criminal trial; Burch v. Louisiana, 441 U.S. 130, 138, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); Ballew v. Georgia, 435 U.S. 223, 239, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978); the defendant's trial could not continue with the original jury. Under these circumstances, which amounted to a manifest necessity whether so designated by the court or not; Arizona v. Washington, supra, 516-17; had the trial court declared a mistrial, the defendant could have been tried before another jury without offending the double jeopardy clause. Further, because we find that the manifest necessity standard has been met in this case, we conclude that the continuation of the trial with the additional jurors was not barred by the double jeopardy clause. The fact that the court continued with the trial instead of declaring a mistrial does not alter our analysis of the double jeopardy problem, although the practice of adding jurors, as was done in this case, could raise a due process question. "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." State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). We need not address the due process implications of the court's action because the trial was ultimately aborted due to the jury deadlock. We note, however, that when new jurors are added to an existing sworn panel, the method of juror selection, the number of peremptory challenges allowed, and whether any testimony or other evidence has been presented are among the most obvious areas of concern. There is no error. In this opinion the other judges concurred. None of the information elicited during the second voir dire examination came to light during the original jury selection process. The reading of the witnesses' names had not jarred the first excused juror's memory regarding her acquaintance with one of the state's witnesses. The witness, however, recognized the juror by sight at the courthouse. The second juror did not recall his acquaintance with the defendant's uncle until the night after his original voir dire examination. At this time the defendant raised the double jeopardy problem, pointing out that if the second juror was excused the trial should end because jeopardy had already attached when the original jury was sworn in.

Daly, J. The respondent mother has appealed from the judgment committing her three year old daughter, Cynthia, to the temporary custody of the commissioner of the department of children and youth services (DCYS), pursuant to General Statutes § 46b-129 (d), for the maximum period of eighteen months for placement with the child's paternal grandmother who lived at the time in Puerto Rico. On January 30, 1985, following a plea of nolo contendere, the trial court found that Cynthia had been neglected by her mother (respondent) and father. The state claimed that, on September 1,1984, the child had suffered burns to 55 percent of her body as a result of being immersed in boiling hot water by a male companion of the respondent. The male companion is not the natural father of Cynthia but is the father of the respondent's two other, younger children. As a result of this incident, the male companion was charged with the offense of injury or risk of injury to a minor. From the time of Cynthia's birth in July, 1981, until November, 1983, the maternal grandmother greatly assisted in the care of Cynthia, as the respondent and child lived in the home of the maternal grandmother during that time. On two occasions, in 1982 for two months, and in 1983-84 for five months, the respondent sent Cynthia to Puerto Rico to stay with the child's father and paternal grandparents. Upon learning of the child's injury, the paternal grandmother left her home and family in Puerto Rico and came to Connecticut to be with the child. The paternal grandmother visited Cynthia in the hospital, nursed and cared for her upon the child's release, and brought her to the hospital for subsequent treatments. During this time, the paternal grandmother was living in New Britain where the child often stayed or visited with her. During the thirty-seven month period after Cynthia's birth until her hospitali zation, the respondent had full responsiblity for the care of her daughter for only four months. Neither the respondent nor the father contested the neglect charges. At the conclusion of the dispositional phase of the proceedings, the trial court committed the child to the custody of DCYS for eighteen months for placement with the paternal grandmother, currently residing in Puerto Rico. In her appeal, the respondent claims that the trial court erred as follows: (1) in ruling that the petitioner established by a fair preponderance of the evidence that commitment of the minor child to DCYS is in the child's best interests; (2) in denying the respondent's motion to dismiss for the failure of the petitioner to establish by a fair preponderance of the evidence that commitment of the minor child to DCYS is in the child's best interests; (3) in finding that the respondent was not denied her due process rights by the admission of hearsay testimony through the social study summary of facts and the summary of the DCYS worker; (4) in failing to grant the respondent's motion for a psychological evaluation of a nonparty pursuant to General Statutes § 17-38 (a); (5) in denying the respondent's motion for continuance of the dispositional hearing pending the resolution of criminal charges pending against the respondent's male companion, so as to permit him to testify at the dispositional hearing; (6) in ordering the minor child to be committed to DCYS with placement with the paternal grandmother in Puerto Rico absent efforts to reunify the child and her mother; (7) in terminating de facto the respondent's parental rights by granting the commitment of the child to DCYS for placement in Puerto Rico with the paternal grandmother; and (8) in refusing to grant an administrative hearing in accordance with General Statutes § 46b-129 (d) (3) relative to the out-of-state placement. I "After a judicial determination that a child is 'uncared for, neglected or dependent' the Superior Court has available three possible options from which to choose regarding custody of that child: (1) to 'commit [the child] to the commissioner of children and youth services'; (2) to 'vest such child's or youth's care and personal custody' in a third party until the child reaches the age of eighteen; or (3) to permit the natural parent to retain custody and guardianship of the child, with or without protective supervision by DCYS. General Statutes § 46b-129 (d)." (Footnote omitted.) In re Juvenile Appeal (85-BC), 195 Conn. 344, 353, 488 A.2d 790 (1985). The respondent contends that the state failed to substantiate the child's commitment to DCYS by a fair preponderance of the evidence. " 'We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.' " Knight v. Breckheimer, 3 Conn. App. 487, 490, 489 A.2d 1066 (1985), quoting Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). " 'We cannot retry the facts or pass upon the credibility of the witnesses.' " Pandolphe's Auto Parts, Inc. v. Manchester, supra, 220. "It is well established that the trial court is in the best position to determine the credibility of witnesses and the weight to be accorded their testimony." Colonial Bank of Waterbury v. Forish, 6 Conn. App. 289, 291, 505 A.2d 11 (1986); Holden & Daly, Connecticut Evidence § 125 (a). "In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action." Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985). There was evidence before the trial court that the respondent had cared for Cynthia for only four out of the thirty-seven months prior to her hospitalization for the burn injury. There was ample evidence that the paternal grandmother has exhibited a strong sense of responsibility toward the child and could continue to provide her with a stable and loving environment. The paternal grandmother has maintained a continuous bond with the child through extended visits. She left Puerto Rico, regularly visited Cynthia in the hospital and cared for her needs after her release. The paternal grandmother is an experienced caretaker, having raised a family of her own. On the other hand, the respondent must bear the responsibility of caring for her two children by her male companion, the alleged abuser of Cynthia. If the child remained with the respondent, the male companion would inevitably come in contact with the abused child. The psychologist, the DCYS social worker and a counselor all were in accord that the DCYS placement with the paternal grandmother in Puerto Rico would be in the best interests of the child. Our review of the record reveals that the state satisfied its burden of proof by a fair preponderance of the evidence. The trial court's conclusion as to the placement of the child with DCYS was, therefore, legally correct and factually supported. See In re Rebecca W., 8 Conn. App. 92, 510 A.2d 1017 (1986). II The respondent claims that the trial court erred in failing to grant her motion for dismissal. Practice Book § 302 provides in relevant part: "If, on the trial of any issue of fact in a civil action tried to the court, the plain tiff has produced his evidence and rested his cause, the respondent may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ." If we assume, arguendo, that the motion was appropriate in a dispositional hearing of neglect and timely even though made at the end of the entire testimony, a judgment of dismissal is proper when the trier cannot make a reasonable finding in favor of the plaintiff based on the evidence produced. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609, 440 A.2d 810 (1981). "The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor." Id., 609-10. Treating the evidence in that manner, we conclude that the denial of the judgment of dismissal was proper because the evidence not only satisfied the prima facie requirement but also met the state's burden of proof by a fair preponderance. Ill The respondent claims that she was denied her due process rights since extensive hearsay evidence was admitted through the social study summary of facts and the testimony of the DCYS social worker. It should be noted at the outset that in juvenile proceedings certain procedural informalities are constitutionally permissible, allowing, for example, the liberal interpretation of the formal rules of evidence as long as due process standards are observed. In re Juvenile Appeal (85-2), 3 Conn. App. 184, 190, 485 A.2d 1362 (1985). More importantly, the respondent did not object at the trial to any of the evidence which she challenges on appeal. Indeed, she introduced much of the evidence through cross-examination of the social worker. She can hardly be heard now to complain of its admission. IV The trial court denied the respondent's motion requesting that her male Mend be ordered to submit to a psychological examination pursuant to General Statutes § 17-38a. By employing the word "may" as opposed to the mandatory "shall," the statute calls upon the court's discretion. The trial court's action which involves the exercise of judicial discretion will not be disturbed unless there is a clear abuse of that discretion .In re David E., 4 Conn. App. 653, 656, 496 A.2d 229 (1985). We determine that there was no abuse of discretion because the male friend was facing, as a result of the burn incident, a criminal charge of injury or risk of injury to a minor child. V The respondent claims that the trial court erred in refusing to continue the matter until the criminal case against her male friend was resolved so that he could testify at the dispositional hearing. A motion for continuance falls within the purview of the trial court's discretion which will not be upset absent a showing of clear abuse of that discretion. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). "Every reasonable presumption in favor of the proper exercise of the trial court's discretion will be made." Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); Rose v. Messier, 1 Conn. App. 563, 565, 474 A.2d 100 (1984). The right to a continuance is not absolute and no mechanical tests come into play for determining whether the denial of a continuance violates due process standards. " 'The answer must be found in the cir cumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' " State v. Beckenbach, supra, 47-48; State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983); In re Juvenile Appeal (85-2), supra, 189. Time is of the essence in child custody cases. State v. Anonymous, 179 Conn. 155, 171, 425 A.2d 939 (1979). The failure to continue a matter until the father's unscheduled release date from prison was upheld in a termination of parental rights case. In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 439, 446 A.2d 808 (1982). Here, the male friend's criminal disposition date was speculative. Hence, there was no error in denying the request for a continuance. VI In support of her claim that DCYS failed to make reasonable efforts to reunite the family, the respondent cites the Adoption Assistance and Child Welfare Act of 1980. The act, however, is an appropriations act and does not apply to individual actions or judicial findings as the respondent argues, but merely sets forth general guidelines for a state's continued eligibility to receive funds for foster care maintenance. 42 U.S.C. § 601, 627, and 670-672. The respondent's claim lacks merit and need not be considered further. VII The respondent next claims that the commitment of Cynthia to DCYS and her placement with the paternal grandmother in Puerto Rico constituted a de facto termination of parental rights. " 'It is important to note . . . that the ultimate standard underlying the whole statutory scheme regulating child welfare is the "best interests of the child." The public policy of this state as enunciated in General Statutes § 17-38a (a) is "[t]o protect children whose health and welfare may be adversely affected through injury and neglect . to provide a temporary or permanent nurturing and safe environment for children when necessary . . . . " ' " In re Juvenile Appeal (Docket No. 10155), supra. " 'This furthers the express public policy of this state to provide all of its children a safe, stable nurturing environment.' " (Citation omitted.) Id., 440. We find, under these circumstances, that the court did not err in concluding that the respondent is currently unable to provide the protection her daughter needs and that the child's best interests therefore require placing her in the custody of DCYS. Although the placement of the child with the paternal grandmother was phrased as part of the court order, the actual commitment of the child pursuant to General Statutes § 54-129 was to the commissioner. The trial court's placement of the child with the paternal grandmother was, in legal effect, a suggestion to the commissioner that he, in his discretion and in the child's best interests, so place the child. The respondent's parental rights have not been terminated de jure or de facto by the placement with the paternal grandmother in Puerto Rico. Connecticut still retains jurisdiction of the child under the Interstate Compact on the Place ment of Children, General Statutes § 17-81a, article V (a), which provides in relevant part: "The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency's state . . . . " VIII General Statutes § 46b-129 (d) provides in pertinent part: "Said commissioner may place any child or youth so committed to him in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents of such child are notified in advance of such placement and given an opportunity to be heard . . . . " (Emphasis added.) The respondent claims that, in order for the child to be placed in Puerto Rico, she was entitled to a separate administrative hearing. The respondent was notified on the first date of the dispositional hearing that it was the position of DCYS that the child be placed in Puerto Rico with the paternal grandmother. The case having been litigated on that basis, the respondent had an opportunity to be heard in this regard and to participate in the hearing as a witness. Under these circumstances, no separate hearing was required. There is no error. In this opinion the other judges concurred. The court also noted its "expectations" that the grandmother return the child to Connecticut at least once a year for a period of at least three weeks, that DCYS make available to the mother support services for reunification with the child, and that, if the mother visits Puerto Rico, extremely liberal visitation be granted her with the child. Cynthia's natural father resides in Puerto Rico. General Statutes § 17-38a (f) provides in pertinent part: "In proceedings in the superior court under this section, (1) the court may order the child, the parents, the guardian, or other persons accused by a competent witness with abusing the child, to be examined by one or more competent physicians, psychiatrists or psychologists appointed by the court . . . . " 42 U.S.C. § 672 (a) of the Adoption Assistance and Child Welfare Act of 1980 provides in pertinent part: "Each State with a plan approved under this part shall make foster care maintenance payments . . . with respect to a child who would meet the requirements of section 606 (a) of this title or of section 607 of this title . . . if — (1) the removal from the home occurred pursuant to a voluntary placement agreement entered into by the child's parent or legal guardian, or was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and . . . that reasonable efforts of the type described in section 671 (a) (15) of this title have been made . " 42 U.S.C. § 671 provides in pertinent part: "In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which — (15) . . . provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home . . . . "

O'Connell, J. The plaintiff, Morning Star Holding Company, a corporation involved in commercial and residential construction, instituted this action for foreclosure of a mechanic's lien against the defendants' newly constructed house. The complaint alleged breach of contract and monies owed under the doctrine of quantum meruit. The defendants counterclaimed, alleging breach of contract, faulty workmanship and breach of implied warranties. The matter was heard by an attorney trial referee and judgment was rendered by the trial court in accordance with his findings of fact. Judgment was rendered for the plaintiff on the complaint in the amount of $9260.16, and for the defendants on the counterclaim in the amount of $11,525. The plaintiff appeals from the judgment for the defendant on the defendant's counterclaim. Prior to the rendition of judgment, the plaintiff filed an objection to the referee's finding of facts, relating to the award of $6700 in damages for the replacement of the house's siding and $3500 for the replacement of its roof. The objection was untimely filed and was denied by the trial court. On appeal, the plaintiff claims the trial court erred (1) in accepting the referee's report over its objection, and (2) in awarding monetary damages for the replacement of the house's roof and siding. We find no error. The plaintiff first claims error in the trial court's acceptance of the referee's report despite the plaintiff's objection. Practice Book § 441 provides in pertinent part that "[objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding . . . ." The referee's finding in the present case was filed on August 20, 1986. The plaintiff's objection was not filed until September 12,1986, nine days beyond the deadline established by § 441. While we note in passing that in light of § 441 the trial court properly denied the plaintiffs objection to the acceptance of the referee's report, we need not address this claim of error, as the plaintiff has failed to brief this argument on appeal. " '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.' " Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); Fullerton v. McGowan, 6 Conn. App. 624, 625 n.1, 507 A.2d 473 (1986). The plaintiff also challenges the trial court's award of damages for the replacement of the house's siding and roof. The plaintiff's failure to file a timely objection to the acceptance of the referee's finding also impacts upon the scope of our review of the remaining claim of error. "In the absence of a timely objection to the report, our review is strictly limited to ' "determining whether the subordinate facts found by the attorney referee were sufficient to support the referee's ultimate factual conclusions." ' Ross v. Renzulli, 9 Conn. App. 87, 90, 516 A.2d 149 (1986), quoting Blessings Corporation v. Carolton Chronic & Convalescent Hospital, Inc., 7 Conn. App. 364, 367, 508 A.2d 829 (1986)." J. M. Rosa Construction Co. v. New Haven Redevelopment Agency, 9 Conn. App. 481, 485, 519 A.2d 1227 (1987). We conclude that the facts are sufficient. There is no error. In this opinion the other judges concurred. While New England Savings Bank is also named as a defendant as the holder of the mortgage on said premises, we wilt refer to the homeowners as the defendants.

Per Curiam. The defendant appeals from the trial court's acceptance of an attorney factfinder's report, and the subsequent rendering of judgment for the plaintiff. We find no error. The defendant alleges that the trial court erred in rendering judgment for the plaintiff on the complaint and the counterclaim where (1) the facts ruled on were not supported by the evidence, (2) the subordinate facts found were in conflict with the ultimate factual conclusions, and (3) the facts found and the conclusions reached were inadequate to support the judgment. The defendant's claims of error are no more than a sweeping attack on the factual findings of the court. Although we are loath to repeat ourselves, we must again declare our disapproval of such claims. "Our review of the factual findings of the trial court is limited to the determination of whether, in view of the evidence and pleadings in the whole record, those findings are clearly erroneous." Cotton v. Cotton, 11 Conn. App. 189, 192, 526 A.2d 547 (1987). "Unless there were no facts upon which the court could base its finding, we as an appellate body cannot retry the case or substitute our judgment for that of the trial court." (Emphasis added.) Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983), citing Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). The outcome of this contractual dispute rested heavily on the testimony of the various witnesses, and it is not for us to say who provided the more credible evidence. "It is settled law that the credibility of witnesses and the weight to be accorded to their testimony is entirely a matter for the discretion of the trier of fact." Filosi v. Hawkins, 1 Conn. App. 634, 641, 474 A.2d 1261 (1984); see also Edens v. Kole Construction Co., 188 Conn. 489, 494-95, 450 A.2d 1161 (1982), and cases cited therein. Our review of the record, transcripts and briefs clearly indicate that the factual findings and conclusions of the trial court are amply supported by the evidence. See Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980). There is no error.

Spallone, J. The defendant takes this appeal from the judgment rendered after he was convicted by the court of two counts of sexual assault in the second degree, a violation of General Statutes § 53a-71 (a) (1), and two counts of risk of injury to a minor, a violation of General Statutes § 53-21. The defendant claims that the trial court (1) found against the weight of the evidence that the defendant was guilty beyond a reasonable doubt on all four counts, (2) found the defendant guilty on the basis of insufficient evidence, (3) erroneously denied the defendant's motion for a psychiatric examination of the victim, (4) erroneously found the minor victim competent to testify, and (5) erroneously excluded testimony by the defendant's mother of an alleged extortion attempt. The defendant, an adult male, runs a nursery business and a golf driving range on his family farm located in Windsor. The victim, a twelve year old boy, and his older brother were spending the fourth of July weekend on the farm. The trial court found that while the victim and the defendant were alone in a room in the farm house, the defendant, at about 1 a.m. on July 4, 1984, performed fellatio upon the victim. Further, the court found that shortly after 2 p.m., on the same day, the defendant again performed fellatio upon the victim. The trial court, having found that the acts were committed, concluded that all the elements constituting the crimes of sexual assault in the second degree and risk of injury to a minor had been met in each of the separate incidents and found the defendant guilty as charged. The court found the minor victim to be a "refreshingly honest boy" and doubted the credibility of certain witnesses for the defense. The court viewed the premises and concluded that "ample time and [an] area protected from view existed for the [second] criminal act to occur." The defendant's first and second claims of error essentially raise the same issue, i.e., the sufficiency of the evidence to support a finding of guilty on all four counts of the information. We have the benefit of the trial court's memorandum of decision in which the court has provided express and explicit findings of fact that serve not only to support its legal conclusions but also to negate the defendant's first two claims of error. Our review of the evidence in this case fully supports the findings made by the court. The test to be applied in determining whether the evidence is sufficient to sustain a finding of guilty by a trial court has been enunciated by our Supreme Court when it stated: " ' " '[T]he issue is whether the [trier] 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. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983), quoting State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983). The evidence which is presented at the trial must be given a construction most favorable to sustaining the finding of the trial court as the finder of fact. Id. We hold that the trial court had before it ample evidence to find the defendant guilty on all four counts of the information. The defendant's third and fourth claims of error are also without merit. The trial court was not bound to order a mental examination to determine the victim's competency to testify merely because counsel for the defense requested that it be done, nor did the court improperly exercise its discretion in finding that the minor victim was competent to testify. The competency of a witness is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Manning, 162 Conn. 112, 115-16, 291 A.2d 750 (1971); State v. Orlando, 115 Conn. 672, 675, 163 A. 256 (1932); see State v. Vars, 154 Conn. 255, 268, 224 A.2d 744 (1966). The testimonial capacity of a child witness is a matter for the court to determine upon inquiry. State v. Segeberg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In determining the competency of a minor to testify, the trial court must consider the witness' (1) maturity to receive correct impressions by his senses, (2) ability to recollect and narrate events intelligently, (3) ability to appreciate the moral duty to tell the truth, and (4) ability to comprehend the facts sought to be developed. State v. Brigandi, 186 Conn. 521, 534-35, 442 A.2d 927 (1982). Our analysis of the record discloses that the trial court properly applied these principles when it ruled on the minor witness' competency to testify. Not only did the trial court conduct an examination of the witness, it allowed the defendant to question the witness relative to his competency. There has been no showing that the court abused its discretion in denying the defendant's request that the victim undergo a psychiatric examination or in its finding that the victim was competent to testify. The defendant's final claim of error relating to the trial court's evidentiary ruling also fails. In an effort to establish a motive for the victim to lie, the defendant offered the testimony of his mother concerning an alleged extortion attempt relating to the sexual assault charges. The testimony was ruled to be hearsay and was excluded. Even if it were error to exclude the testimony because it was not offered for the truth of the matters contained therein, but was offered in an effort to establish motive, such exclusion would be harmless error. The case was being tried to the court. The court in its memorandum of decision found the child witness to be highly credible. There was no connection established in the evidence between the child and the third party whose statement was offered to indicate that the child would fabricate the story for the benefit of the third party. Such a scenario is speculation at its worst. Trials deal with facts and with inferences logically and rationally drawn therefrom. The quest for truth is ill served when the court is asked to engage in speculation. We find no error in this case, particularly when we are presented, as we have been here, with the trial court's meticulously drawn memorandum of decision which is completely supported by the evidence and is in accordance with the law. There is no error. In this opinion the other judges concurred.

Borden, J. The defendant appeals from the judgment of conviction of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). This conviction was based on his conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, fol lowing the denial of his motion to suppress evidence seized from his suitcase at Bradley International Airport in Windsor Locks. The principal issue is whether the trial court erred in finding that the facts of this case are distinguishable from the facts in Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983), in which the Supreme Court held that a similar airport search was tainted. We find no error. In a thorough and analytical memorandum of decision, the trial court found the following facts: The defendant was returning to his home in Hartford from a vacation in Florida. He walked up to the Delta Airlines ticket terminal in the Fort LauderdaleHollywood International Airport approximately five minutes before the scheduled departure time of flight 560 to Bradley Airport. He paid with cash for a one way ticket. He glanced about from side to side and appeared nervous as he asked the attendant if he could carry his single piece of luggage onto the plane. When told that he could not, he repeated his request. He finally checked his suitcase and watched anxiously as it was conveyed to the airplane. Deputy Sheriff Daniel DeCoursey, of the sheriffs department of Broward County, Florida, believed that the defendant's nervous mannerisms matched the so-called "drug courier profile," a group of characteristics developed by law enforcement agencies and used to identify persons who illegally transport narcotics along the nation's airways. The defendant, unaware that he had aroused suspicion, boarded the plane. DeCoursey telephoned to inform the Connecticut state police that he believed that the defendant possessed illegal narcotics. In response to DeCoursey's call, two undercover Connecticut state police officers who were assigned to Bradley Airport, Detective David Hutchinson and Sergeant William Burke, awaited the arrival of the defendant's flight. They saw him leave the plane and walk 300 yards from the jetway to the main concourse. As he walked, the defendant's constant glancing over his shoulder caused him to stand out from the other passengers. His extreme nervousness continued as he waited at the baggage terminal. A narcotics detection dog positioned along an interior baggage conveyor registered a weak response to the defendant's suitcase. The dog's handler then radioed this response to Hutchinson and Burke. The defendant picked up his suitcase and began to walk in a direction away from the public exits. Hutchinson and Burke, both dressed in plain clothes, approached him. Hutchinson asked to see the defendant's driver's license and ticket receipt and, noticing that the defendant's hands were trembling and that he was sweating profusely, asked him why he was nervous. The defendant answered that he was nervous because of his unexpected confrontation by two state policemen. He handed his license and receipt to Hutchinson. Hutchinson indicated that he would like to search the suitcase, and asked the defendant if he would mind moving to a location out of public view. There was no indication that the officers would have insisted on retaining the defendant had the defendant been unwilling to leave the baggage area. Instead, the defendant, possibly to avoid embarrassment and preferring to continue the encounter, if at all, in a more private location, replied that he would not mind. With Hutchinson in possession of the defendant's license and ticket receipt and the defendant carrying the suitcase, the three men walked approximately twenty feet to a room secured by a punch-type cipher lock. Hutchinson punched in the combination and opened the door to a small room without chairs. They entered the room. Hutchinson returned the defendant's license and receipt to him. Hutchinson had had possession of the license and receipt for approximately two minutes. Although the room was not locked from the inside, the defendant believed that it was. The defendant stood near a wall with his suitcase, next to Hutchinson, while Burke stood back. Neither officer touched the defendant or exhibited a weapon. After a brief conversation, Hutchinson asked the defendant if he could search the suitcase. The defendant consented orally. Up to the time when he consented, he had been in the room for three minutes. Hutchinson reached into the suitcase and found an envelope containing white powder. He then placed the defendant under arrest. The entire encounter between the police officers and the defendant lasted no longer than five minutes. Neither police officer displayed a weapon or physically contacted the defendant. Neither attempted to intimidate him, either physically or verbally, by tone of voice or general demeanor. Both were courteous and asked, but did not demand, that the defendant comply with their request. Neither advised the defendant that he might refuse their request. There was no evidence of coercion. On the basis of these facts, the court concluded that the defendant was "seized," within the meaning of the fourth amendment, near the baggage terminal shortly before being taken to the room, and that he was not free to leave thereafter. The court also concluded that the seizure was based on reasonable and articulable suspicion, that the scope of the seizure was permissible, and that the defendant's consent to search the suitcase was voluntarily given. Accordingly, the court denied the motion to suppress. This appeal followed. I The defendant first gives a glance at the argument that the initial seizure was unlawful, but he does not seriously press this claim in his brief. We agree with the state that the trial court did not err in concluding that the initial seizure of the defendant was reasonable. The degree of the match between his behavior in the Florida airport and the drug courier profile; see footnote 2, supra; was further corroborated by his nervous behavior after leaving the plane at Bradley Airport, the weak but not exculpatory response of the narcotics trained dog, and the defendant's additional extreme nervousness upon being approached and questioned by Hutchinson and Burke. In the aggregate, these facts and observations were sufficient to give the police officers reasonable and articulable suspicion to stop the defendant. State v. Mitchell, 7 Conn. App. 46, 57-60, 507 A.2d 1017 (1986), rev'd in part, 204 Conn. 187, 527 A.2d 1168 (1987). Thus, the stop was justified at its inception. Id. The defendant's principal argument is that the scope of the stop exceeded its permissible limits and resulted in the functional equivalent of an arrest based on less than probable cause. In this regard, the defendant relies solely on Florida v. Royer, supra. We disagree. We conclude that the trial court was correct in reading Royer as distinguishable from the facts of this case. In Royer, the defendant had aroused the suspicion of two narcotics agents in the Miami airport as he proceeded to board a plane, having checked his luggage. They approached him and asked to speak to him. Upon their request, but without his oral consent, Royer gave them his airline ticket and driver's license. On the basis of certain discrepancies in these items and on observations of Royer's increased nervousness, the officers identified themselves as narcotics investigators and told him that they suspected him of transporting narcotics. They did not return his ticket and identification, but asked him to accompany them to a small room approximately forty feet away. Without responding, Royer went with them to the room. Without his consent, one of the officers retrieved Royer's two suitcases from the plane and returned them to the room. Royer was asked if he would consent to a search of the suitcases. He did not respond orally, but produced a key and unlocked one of the suitcases, and did not object to one of the detectives opening the other by force. Marihuana was found in both suitcases, and Royer was arrested. The entire episode took about fifteen minutes from the time the officers approached him to his arrest. A plurality of the United States Supreme Court, (White, Marshall, Powell and Stevens, Js.), "agreefd] that had Royer voluntarily consented to the search of his luggage while he was justifiably being detained on reasonable suspicion, the products of the search would be admissible against him." (Emphasis added.) Id., 502. The same plurality, however, held that, under the facts of that case, the permissible scope of an investigative stop had been exceeded. They ruled "that at the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowed on mere suspicion of criminal activity"; id., 502; and that "[a]s a practical matter, Royer was under arrest." Id., 503. Therefore, because "Royer was being illegally detained when he consented to the search of his luggage . . . the consent was tainted by the illegality and was ineffective to justify the search." Id., 507-508. In a concurring opinion, Justice Powell "agree[d] with the plurality that as a practical matter [Royer] was then under arrest, and his surrender of the luggage key to the officers cannot be viewed as consensual." Id., 509 (Powell, J., concurring). Justice Powell relied on the facts that, after accompanying "the officers to a more private place" and before surrendering the key to his luggage, "Royer then found himself in a small windowless room — described as a 'large closet' — alone with two officers who, without his consent, already had obtained possession of his checked luggage. In addition, they had retained his driver's license and airline ticket." (Emphasis added.) Id., 508. Both the Royer plurality and Justice Powell agreed that each airport stop and search case must pivot on its own facts. "We do not suggest that there is a litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop. Even in the discrete category of airport encounters, there will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment." Id., 506-507. "As the plurality opinion emphasizes, ante, at 506-507, the facts and circumstances of investigative stops necessarily vary." Id., 508. The Supreme Court has subsequently read the Royer case as turning on the facts that "government agents stopped the defendant in an airport, seized his luggage, and took him to a small room used for questioning, where a search of the luggage revealed narcotics. The court held that the defendant's detention constituted an arrest. [Florida v. Royer, supra, 503 (plurality opinion), 509 (Powell, J., concurring), 509 (Brennan, J., concurring in the result)]. As in Dunaway [v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979)] though, the focus was primarily on facts other than the duration of the defendant's detention — particularly the fact that the police confined the defendant in a small airport room for questioning." (Emphasis added.) United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 1574, 84 L. Ed. 2d 605 (1985). There are two critical factual distinctions between this case and Royer. First, in this case, the trial court found that the officers would not have insisted upon taking the defendant to the room had he been unwilling to leave the baggage area, that the defendant knew that a search of his luggage was contemplated before he had accompanied the officers to the room, that the defendant in order to avoid possible embarrassment preferred to continue the encounter in a more private place, and that the defendant agreed after two minutes of questioning to relocate to an area out of the public view. Thus, unlike Royer, in this case, it can not be fairly said of the defendant that the police officers "took him to a small room-for questioning"; United States v. Sharpe, supra (emphasis added); in the same sense in which Royer was taken to the room. Nor was this defendant "confined, in a small room"; id. (emphasis added); in the same sense that Royer was confined. This defendant was in the room by his own consent. We are aware that the trial court in this case also found that the "defendant was seized near the baggage terminal shortly before being taken to the private room . . . . " (Emphasis added.) This finding, however, which was made in the context of the identification of the point at which the defendant was "seized," in constitutional parlance, must be read together with the later, more expansive findings of the trial court on the same issue. Those later findings are that "[t]here is no indication that the officers would have insisted had Van Der Werff been unwilling to leave the baggage area. Rather, it appears that Van Der Werff, possibly to avoid embarrassment, preferred to continue the encounter, if at all, in a more private location. The scope of this temporary detention was not impermissibly enlarged merely because the defendant agreed after two minutes of questioning to relocate twenty feet to an area out of the public view." Thus, the gist of the trial court's findings in this regard is that, unlike the defendant in Royer, who was not told that his luggage was to be searched when he was taken to the room and who gave no oral consent to the relocation to that room, the defendant in this case was told, before accompanying the police to the room, that they wished to search his luggage, and consented to having that done out of the public's eye. The second critical factual difference from Royer is that in this case the defendant retained possession of his suitcase until the moment that Hutchinson searched it. Indeed, the trial court's factual findings do not even indicate that the defendant ever relinquished his hold on the suitcase. The findings were as follows: The defendant "stood near a wall with his suitcase, next to Hutchinson ." "After some brief conversation Hutchinson asked if he could search the suitcase, and the defendant orally consented . . . ." "Hutchinson reached in and found a single envelope containing white powder." Thus, unlike in the Royer case it cannot be said in this case that the defendant was with officers "who, without his consent had obtained possession of his checked luggage." Florida v. Royer, supra, 508 (Powell, J., concurring). Nor can it be said of the defendant that the police "seized his luggage. ." United States v. Sharpe, supra. These two factual aspects sufficiently distinguish this case from Florida v. Royer, supra, on which the defendant relies. We agree with the trial court that the scope of the investigative stop was not impermissibly expanded by the consensual relocation of the defendant, who retained control of his luggage until the moment of the consent, for a distance of twenty feet from the baggage terminal to the private room. Thus, the defendant's consent to the search was not tainted by an illegal detention. II This leaves for consideration the defendant's final argument. He claims that, even if the initial stop was justified and its scope not impermissibly enlarged, there was insufficient evidence to support the court's finding of a voluntary consent to the search of his suitcase. We disagree. Whether a search was based on consent, which the state has the burden of establishing, requires a finding of voluntariness, as opposed to an acquiescence to lawful authority. State v. Cardona, 6 Conn. App. 124, 134, 504 A.2d 1061 (1986). The consent must be free and voluntary, which is a question of fact to be determined from the totality of the circumstances. Id. The ultimate question "is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice." State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986). The trial court's finding must stand unless it is clearly erroneous. Id. Here, the court found that the state met its burden of proof to establish that the defendant's consent to search the suitcase was voluntary. Although he was not advised that he need not comply with the requests, and although knowledge of the right to refuse to consent is an important element in the voluntariness determination; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978); such advice is not a prerequisite to a voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In support of its finding of voluntariness, the court also found that both officers were in plain clothes. Neither displayed a weapon, made physical contact with the defendant or intimidated him in any way. Both were courteous and asked, but did not demand, that he comply with their requests. There was no coercion. We cannot conclude that the trial court's finding of a voluntary consent to search was clearly erroneous. There is no error. In this opinion the other judges concurred. The defendant's written plea of nolo contendere in the record does not indicate that it was made "conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress evidence based on an unreasonable search or seizure," as required by General Statutes § 54-94a. The parties, however, have treated it as such a conditional plea, and we review it accordingly. The judgment file, moreover, incorrectly states that the defendant "said that he was guilty." The judgment file should be corrected to recite the defendant's nolo contendere plea. The drug courier profile is "an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs." United States v. Mendenhall, 446 U.S. 544, 547 n.1, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Although the defendant concedes that he did not raise a state constitutional claim in the trial court, and although he did not raise it in his initial brief in this court, in his reply brief he indicated that he would do so at oral argument. That effort was no more, however, than a passing reference to State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), for the proposition that we are free to interpret our own constitution differently from the United States constitution. We do not regard the defendant to have adequately raised and briefed a state constitutional claim. We therefore confine our discussion to the theory on which the case was tried and decided in the trial court, and briefed in this court. Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984). Nowhere in his brief did the defendant challenge the evidentiary sufficiency of these critical factual findings. He first did so part way through his oral argument in this court, after opening his argument with the statement that he agreed with the findings of the trial court. We do not believe that such a belated attempt to raise such an important claim properly presents the issue to us. We therefore disregard this claim of the defendant, and take the factual findings of the trial court as expressed in its memorandum of decision and as briefed by the parties. "Care must be taken . to examine . . . [the] findings of fact that the trial court actually made in its decision to deny the motion to suppress." State v. Brown, 198 Conn. 348, 360, 503 A.2d 566 (1986) (Healey, J., dissenting). This consensual aspect of the relocation of the defendant also distinguishes this part of the case from our analysis in State v. Mitchell, 7 Conn. App. 46, 507 A.2d 1017 (1986), rev'd in part, 204 Conn. 187, 527 A.2d 1168 (1987). In Mitchell, we noted that "[Relocation of a temporarily detained suspect is permissible incident to an investigative stop if it does not make the stop unreasonably more intrusive. [United States v. Vanichromanee, 742 F.2d 340, 345 (7th Cir. 1984).] An important factor in evaluating such a relocation is whether it is to a more police-oriented institutional setting, such as a police station or interrogation room. Id." State v. Mitchell, supra, 63. There, we were discussing a relocation of a seized suspect by the police without the suspect's consent. In this case, the trial court found in effect that the defendant consented to the relocation to a more private place.

Borden, J. The defendant appeals from the judgment of the trial court ordering him to pay an award of postjudgment attorney's fees and expenses. The defendant raises five claims of error, all of which we have fully considered and reject as without merit. Four of the defendant's five claims concern either the factfinding or the discretionary function of the trial court. The defendant has failed to demonstrate that the facts found are clearly erroneous, or that the court abused its discretion. The only claim of the defendant which warrants discussion is that the court erred by granting the plaintiff's motion for attorney's fees without taking evidence as to the financial circumstances of the parties at the time of the hearing on the motion. On the facts of this case, we disagree. After a trial, the original judgment of dissolution was rendered on August 22, 1984. This was followed by numerous and lengthy postjudgment proceedings brought by the defendant to challenge that judgment, both in the trial court, and by way of several attempts to appeal which were ultimately dismissed. In February, 1986, the plaintiff moved in the trial court for an award of attorney's fees and expenses incurred as a result of those postjudgment proceedings. The court heard this motion on June 24, 1986, and awarded attorney's fees and expenses to the plaintiff. At the hearing on the motion, neither party proffered a financial affidavit or other evidence as to their financial circumstances at that time. Ordinarily, it is error for the court, in ruling on a motion for postjudgment attorney's fees, to refuse to consider the parties' current financial positions where there was "timely and adequate objection . . . on that basis." Fisher v. Fisher, 4 Conn. App. 97, 101-102, 492 A.2d 525 (1985); Caracansi v. Caracansi, 4 Conn. App. 645, 651, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Here, however, the defendant made no such objection, and made no such claim to the court. In fact, the defendant made clear, both in oral argument to the trial court and in a written brief on the matter, that "the substance of our argument is that counsel fees in this situation are discretionary with the Court, and we don't feel that they are merited at this point . . . . " Neither party offered testimony or objected to the lack of testimony. Both parties in effect invited the court to focus solely on the merits of the plaintiff's request, without reference to their current finances. " 'If counsel has full knowledge of improper conduct (or what he perceives to be improper procedure) he cannot remain silent, hoping for a favorable ruling, and then be heard to complain when the order is unsatisfactory. See Holden & Daly, Conn. Evidence § 12.' " Carter v. Carter, 8 Conn. App. 356, 360-61, 512 A.2d 979 (1986), quoting Walsh v. Walsh, 190 Conn. 126, 132, 459 A.2d 515 (1983). Under these circumstances, we decline to review the defendant's claim. There is no error. In this opinion the other judges concurred.

Per Curiam. A jury found the defendant, Wayne V. Corvo, guilty of the crime of illegal possession of heroin, in violation of G-eneral Statutes §19-481 (a). From the judgment rendered the defendant has appealed raising the single issue of whether the trial court committed error in charging the jury on the definition of "possession." At the trial there was evidence presented to prove that the defendant and two other persons went to Willimantie in a motor vehicle for the purpose of purchasing heroin for their own use. A state policeman stopped the vehicle and the defendant was observed in the left rear seat with a belt around his arm. A syringe, tweezers, bottle cap cooker, and a tinfoil package containing a residue of heroin were all found in the rear passenger compartment of the vehicle where the defendant was seated. The court read the pertinent portion of the applicable statute defining the crime with which the defendant was charged and correctly instructed the jury that "[t]o establish that the defendant had possession . it was necessary to prove that he had exercised dominion and control over the substance, had knowledge of its presence and had knowledge of its narcotic character." The court also explained the meaning of constructive possession. The only exception taken to the charge was that the court confused the word "control" with "possession." There is no merit to this claim. The court correctly charged the jury. State v. Williams, 169 Conn. 322, 335, 363 A.2d 72; State v. Avila, 166 Conn. 569, 573, 353 A.2d 776; State v. Harris, 159 Conn. 521, 531, 271 A.2d 74, cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630. Furthermore, viewing the charge as a whole it had no tendency to mislead the jury. State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288. There is no error.

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

Barber, J. The plaintiff brought this action against Dwan Lincoln-Mercury, Inc., hereinafter referred to as Dwan, and Ford Motor Company, hereinafter referred to as Ford. The complaint, in one count against both defendants, alleges the sale of a Lincoln Continental automobile and sets forth claims of breach of warranty and revocation of acceptance. The defendants Dwan and Ford each filed an answer denying the allegations of breach of warranty and revocation of acceptance, and a special defense claiming that the plaintiff could not properly maintain the action and recover damages because of the limitations set forth in the basic written warranty. In addition, Dwan filed a counterclaim seeking damages for storage of the automobile after its return. The case was tried to a jury of six. At the conclusion of the evidence, the defendant Dwan moved for a directed verdict as to the claim for revocation of acceptance on the grounds that such revocation was not timely, that there was no evidence of nonconformity substantially impairing the automobile's value, and that Dwan had made all repairs and performed its obligation as required by the warranty. The defendant Ford moved for a directed verdict on the plaintiff's claim for revocation of acceptance on the grounds that there was no evidence that the plaintiff, as buyer, bought the automobile from Ford or that Dwan was the agent of Ford insofar as the sale of the automobile was concerned, that there was no evidence that the auto mobile purchased from Dwan had a nonconformity which substantially impaired its value, and that there was no evidence that the plaintiff ever gave notice to the defendant of his revocation of acceptance. Both defendants also argued for a directed verdict on the breach of warranty claim asserting that no evidence was introduced by the plaintiff that the automobile which he purchased from Dwan was worth substantially less than the value for which the plaintiff had contracted. The court granted those motions, in effect, only as to the plaintiff's claim of breach of warranty because of lack of evidence on damages, and submitted the plaintiff's claim on revocation of acceptance to the jury. The court also directed a verdict for the plaintiff on the defendant Dwan's counterclaim. The jury returned a verdict for the plaintiff to recover of both defendants, "on rescission," the purchase price of the automobile with interest, and returned a directed verdict for the plaintiff on the counterclaim. Motions were filed to set aside the verdicts, and Ford moved for judgment notwithstanding the verdict against it, which the court denied. Both defendants have appealed. Dwan claims that the verdict against it is against the evidence because there was no evidence that the value of the automobile was substantially impaired or that the plaintiff attempted to revoke within a reasonable time. Dwan also claims that the court erred in its instructions to the jury on the issue of revocation of acceptance, and that the court committed error in directing a verdict for the plaintiff on the counterclaim. Ford claims that the verdict against it is against the evidence on the ground that there is no evidence that Dwan was the agent of Ford in connection 'with the sale of the automobile and no evidence that the automobile was substantially impaired or that the plaintiff gave notice to Ford of his revocation of acceptance. Ford also claims that the court erred in its instructions to the jury on the issues of revocation of acceptance, agency and certain statements made by a witness, as well as in admitting into evidence certain letters from Ford to the plaintiff. When a verdict is attacked on the ground that it is against the evidence, the question on appeal is whether on the basis of the evidence introduced and viewing that evidence in a light most favorable to the plaintiff, a jury could have reasonably found a defendant or defendants liable. Duley v. Plourde, 170 Conn. 482, 485-86, 365 A.2d 1148; Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270. There was evidence from which the jury could reasonably have found the following facts: On or about March 25, 1970, the plaintiff entered into and signed an agreement with Dwan to purchase a 1970 Lincoln Continental automobile, which had been manufactured by Ford, and paid Dwan the total purchase price for the automobile. The following day, after being notified that the automobile was ready for delivery, the plaintiff went to pick up the automobile from Dwan but refused to do so because it was dirty and a door was out of alignment. The following day the plaintiff took the automobile, a warranty booklet, and other printed matter which was inside the vehicle. In 1970, the defendant Dwan was an authorized Lincoln Continental dealer under a written sales and service franchise agreement with the defendant Ford to sell and service automobiles. This agreement states that Dwan is not the agent of Ford. The purchase order signed by the plaintiff also recites that it is understood by the buyer that "there is no relationship of principal and agent between the dealer [Dwan] and the manufacturer [Ford]." The back of the purchase order agreement contained a stipulation, which the plaintiff acknowledged he had read as part of the agreement, that there are no warranties applicable to the automobile, except the most recent printed Ford Motor Company warranty or warranties, "and they shall be expressly in lieu of any other express or implied warranty, condition or guarantee on the new vehicle, chassis or any part thereof, including any implied warranty of merchantability or fitness and of any other obligation on the part of Ford Motor Company or the Selling Dealer." The basic Ford warranty provides that with respect to each 1970 passenger automobile built by Ford the dealer will repair or replace any part, except tires and tubes, that is found to be defective in factory materials or workmanship in normal use within twelve months from the date of original retail delivery or original use by Ford or any of its dealers, whichever is earlier. The day after the plaintiff took delivery of the automobile he noticed that the motor and transmission were leaking oil and that the cigarette lighter and windshield wiper did not work. The next morning the automobile was brought in to Dwan, the windshield wiper was fixed and the plaintiff was told that he should make a list of his problems and Dwan would take care of them. Within a week, the electric windows did not operate and paint blistered on the vehicle. Between the time that the plaintiff took delivery in March, 1970, until May 3, 1971, Dwan had attempted to repair the automobile eight times as shown by Dwan's records. Between October 25, 1970, and May, 1971, the automobile became undriveable five times on the road and was towed to Dwan for repairs. At one time when the ear was driven, the plaintiff received an electrical shock. Subsequently, an alternator was replaced and a fan belt repaired. Soon after the plaintiff purchased the automobile and until May, 1971, the plaintiff corresponded directly with Ford relating his problem with respect to the vehicle. On October 27, 1970, the plaintiff met with a representative of Ford and was assured, in the presence of Dwan's service manager, that his automobile would be repaired to the plaintiff's satisfaction. The last repair order for the automobile was May 3, 1971, when, two weeks after an alternator was replaced, the automobile had to be towed and a fan belt repaired. Upon being informed that the automobile had been repaired, the plaintiff told Dwan to keep it because the vehicle was dangerous and he wanted his money back or another automobile. After that, the plaintiff never picked up his vehicle. In May, 1971, after the automobile had been in the garage six to eight weeks in one year of ownership, after being told each time that the automobile was in good working order, after Ford sent its representative to ascertain the problem and have the vehicle put in good working condition, and after the automobile had been towed to the garage five times, the plaintiff refused, in May, 1971, to accept any further assurance from Dwan and Ford that the automobile was in good and safe order and refused to take delivery of the vehicle after the last purported repairs. I The defendant Dwan states the basic issue on its appeal to be " [wjhether the plaintiff as a purchaser of an automobile is entitled to rescind or revoke acceptance of the contract of sale of such automo bile and thereby recover the purchase price from the defendant Dwan Lincoln-Mercury, Inc., when there is no evidence that the value of the automobile was substantially impaired." Although Dwan claims error in the instructions to the jury, it has not complied with the provision of the Practice Book which provides that when error is claimed in the charge to the jury, the brief of the appellant shall include not only a verbatim statement of all relevant portions of the charge but also all relevant exceptions to the charge. Practice Book § 631A (c) (2). Under the circumstances, we assume that the instructions were correct. See State v. Grayton, 163 Conn. 104, 114, 302 A.2d 246, cert. denied," 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495. The Uniform Commercial Code-Sales is the law of this state. Before its enactment, breach of warranty and rescission were considered alternate remedies. Vitale v. Gargiulo, 144 Conn. 359, 364, 131 A.2d 830. The code is much more comprehensive and explicit. See White & Summers, Uniform Commercial Code § 8-1. It generally avoids the use of the ambiguous term "rescission"; White & Summers, op. cit.; 67 Am. Jur. 2d, Sales, § 215; and provides a specific remedy permitting a buyer under proper conditions to force the seller to retake nonconforming goods even if the buyer has already accepted them. 3 Williston, Sales (4th Ed.) § 25-6 (2). Under the code, a buyer's revocation of acceptance is a distinct course of action not to be confused with rescission by mutual consent; see Uniform Commercial Code § 2-209, comment 3; nor is it an alternative remedy for breach of warranty. See Uniform Commercial Code § 2-608, comment 1. When a buyer justifiably revokes acceptance, he may cancel and recover so much of the purchase price as has been paid. General Statutes § 42a-2-711. On the other hand, the basic measure of damages for breach of warranty is the difference between the value of the goods accepted and the value that they would have had if they had been as warranted. § 42a-2-714. Section 42a-2-608 of the General Statutes sets up the following conditions for the buyer who seeks to justify revocation of acceptance: (1) a nonconformity which substantially impairs the value to the buyer; (2) acceptance (a) with discovery of the defect, if the acceptance is on the reasonable assumption that the nonconformity will be cured, or (b) without discovery of the defect, when the acceptance is reasonably induced by the difficulty of the discovery or the seller's assurances; (3) revocation within a reasonable time after a nonconformity was discovered or should have been discovered; and (4) revocation before a substantive change occurs in the condition of the goods not caused by their own defects. The buyer has the burden of establishing any breach with respect to the goods accepted. §42a-2-607 (4). "Revocation of acceptance is possible only where the nonconformity sub stantially impairs the value of the goods to the buyer. For this purpose the test is not what the seller had reason to know at the time of contracting; the question is whether the non-conformity is such as will in fact cause a substantial impairment of value to the buyer though the seller had no advance knowledge as to the buyer's particular circumstances." Uniform Commercial Code § 2-608, comment 2. Whether goods are substantially impaired by nonconformity and whether revocation of acceptance is given within a reasonable time are questions of fact subject to the jury's determination. Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So. 2d 638; Frontier Mobile Homes Sales, Inc. v. Trigleth, 256 Ark. 101, 505 S.W.2d 516. The reason why a "substantial impairment of value" must exist before a buyer may justifiably revoke his acceptance is to preclude revocation for trivial defects or defects which may easily be corrected. See Rozmus v. Thompson's Lincoln-Mercury Co., 209 Pa. Super. 120, 224 A.2d 782. Each case must be examined on its own merits to determine what is a "substantial impairment of value" to the particular buyer. Tiger Motor Co. v. McMurtry, supra, 291. The facts of Tiger, similar to those stated here, disclose a situation where, after the plaintiff had bought and accepted an automobile, it consumed an excessive amount of oil, provided low gas mileage, and continued to jump or misfire, even after the installation of new equipment such as a new fuel pump, a new carburetor, new piston rings, and a "short block." The court held that the evidence supported the conclusion of the trier of fact that there had been a substantial impairment of value to the complainant buyer and that the buyer was justified in revoking Ms acceptance a year after the sale. Similarly, the jury in the present case could reasonably have concluded from the evidence before it that the nonconformity of the automobile purchased by the plaintiff substantially impaired its value to the plaintiff and that he was entitled to a return of the purchase price from Dwan. Not only must there be a substantial impairment of value to the buyer, but the revocation must take place "within a reasonable time after the buyer discovers or should have discovered" the defect. General Statutes § 42a-2-608 (2). "What is a reasonable time for taking any action [under the code] depends upon the nature, purpose and circumstances of such action." §42a-l-204 (2). Although the plaintiff did not revoke his acceptance until fourteen months after the sale, it is significant that he was in almost constant touch with the dealer concerning the condition of the vehicle, relying on the dealer's continued assurances that the automobile would be repaired satisfactorily. When it became apparent to the buyer that repeated attempts at adjustment had failed, he unequivocally notified Dwan that he was revoking his acceptance. Under the circumstances of this case, involving an almost continuous series of negotiations and repairs, the delay in the notice did not prejudice the dealer and the delay was not unreasonable. See Tiger Motor Co. v. McMurtry, supra; Gramling v. Baltz, 253 Ark. 361, 485 S.W.2d 183; Irrigation Motor & Pump Co. v. Belcher, 29 Colo. App. 343, 483 P.2d 980; White & Summers, Uniform Commercial Code § 8-3. Under the Uniform Commercial Code, the dealer did have the right to attempt to cure any defects in the automobile ; § 42a-2-508; but this opportunity does not last for an indefinite period of time. See Tiger Motor Co. v. McMurtry, snpra; 3 Williston, Sales (4th Ed.) §25-6 (3). "One policy of the Code is to encourage the parties to work out their differences and so to minimize losses resulting from defective performance." White & Summers, op. cit. § 8-2 n.15. Continued use of the automobile was inevitable while there was an attempt to cure the defects as they became apparent and such use did not defeat the revocation in this case. The jury could have reasonably concluded that the revocation was timely and justifiable. The plaintiff was, therefore, entitled to recover the amount of the purchase price which he had already paid. § 42a-2-711. This basic remedy for justifiable revocation was not effectively limited by the warranty provision that the buyer was only entitled to the repair and replacement of defective parts. The code provides that it shall be liberally construed; § 42a-l-102; and recognizes that it is the very essence of a sales contract that at least minimum adequate remedies be available. § 42a-2-719; Uniform Commercial Code § 2-719, comment 1. In this case, the limited remedy of the warranty had failed of its essential purpose because even after numerous attempts to repair, the automobile still did not operate as a new automobile should, free from defects. See Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir.). The code provides that "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." § 42a-2-719 (2). The court did not err in directing the verdict on the counterclaim of the defendant Dwan. Dwan did not customarily store automobiles, had never told the plaintiff that he would be charged for storage, and had never billed the plaintiff for storage. There was insufficient evidence of a good faith claim for storage charges to send this issue to the jury. The motion for directed verdict was properly granted. Senderoff v. Housatonic Public Service Co., 147 Conn. 18, 22,156 A.2d 517. There is no error on the appeal of the defendant Dwan. II The defendant Ford states the basic issue on its appeal to be "[wjhether the plaintiff, a purchaser of an automobile, can rescind or revoke acceptance of the automobile and recover the purchase price as to the defendant Ford Motor Company, the manufacturer of the automobile, when there was no evidence that Ford either sold or contracted to sell the automobile to the plaintiff." A "seller" is defined as a person who sells or contracts to sell goods. § 42a-2-103 (1) (d). The plaintiff contends that, in making the sale of the automobile to the plaintiff, Dwan was acting as the agent of Ford. This contention and the trial court's instructions on agency confuse the plaintiff's claim for revocation of acceptance with the plaintiff's claim for breach of warranty, which was not submitted to the jury. "[Njormally dealers in new automobiles, although commonly spoken of as agents, are purchasers from the manufacturers, their only attribute as agents being authority to extend to the purchasers from them the limited warranty of the manufacturers." Restatement (Second), 1 Agency § 14J, comment e; 1 Williston, Sales (4th Ed.) § 2-1. The existence of an agency relationship is generally one of fact. Cleaveland v. Gabriel, 149 Conn. 388, 394,180 A.2d 749; see Nowak v. Capitol Motors, Inc., 158 Conn. 65, 68, 255 A.2d 845. The simple issue raised in this case is whether there was any evidence from which the jury could reasonably have concluded that Dwan was acting as the apparent agent of Ford in the actual sale of the automobile to the plaintiff. Despite the written limitation of any agency relationship in the sale of the automobile, which was communicated to the plaintiff, the plaintiff argues that by acts of Ford, Dwan became the apparent agent of Ford. It is an acknowledged principle of agency law that a principal may limit the powers of his agent and that all parties who deal with the. agent with knowledge of the limitation are bound by its terms. Fischer Co. v. Morrison, 137 Conn. 399, 402, 78 A.2d 242; 3 Am. Jur. 2d, Agency, § 77. Upon a careful review of the facts in this case, we are convinced that there was no evidence to support a conclusion that Dwan was the agent of Ford in the actual sale of the automobile. General Motors Corporation v. Earnest, 279 Ala. 299, 184 So. 2d 811. The statute allows revocation only against the person who sells or contracts to sell goods. Dwan was not the agent of Ford insofar as the sale of the automobile was concerned. To be entitled to the remedy of revocation, there must be a buyer-seller relationship, and that relationship was absent in this case. Ford's contractual relationship was with Dwan. See Voytovich v. Bangor Punta Operations, Inc., 494 F.2d 1208, 1211 (6th Cir.), holding that a buyer of a substantially nonconforming motorboat could directly sue the manufacturer for breach of warranty but that only the dealer-seller could be sued for revocation. Accordingly, the trial court should have granted the defendant's motion for a directed verdict or, pursuant to § 255 of the Practice Book, granted the motion for judgment notwithstanding the verdict. This conclnsion is dispositive of Ford's appeal, and it is therefore unnecessary to consider the other claims of error pursued by Ford in its brief. There is error on the appeal of the defendant Ford, the judgment as to this defendant only is set aside and the case is remanded with direction to render judgment in favor of the defendant Ford Motor Company. In this opinion the other judges concurred. General Statutes § 42a-2-101 to 42a-2-725, inclusive. "[General Statutes] Sec. 42a-2-608. revocation of acceptance in whole or in part. (1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption. that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of diseovery before acceptance or by the seller's assurances. (2) Bevoeation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it. (3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them."

The motion by the defendant Torrington Scrap, Inc., to dismiss the appeal from the Court of Common Pleas in Litchfield County is granted.

The defendant's motion to dismiss the appeal from the Superior Court for the judicial district of Waterbury is denied.

Shea, J. In each of these thirty-one habeas corpus actions, the petitioner claims that his conviction is constitutionally flawed because the pool of veniremen available for selection of a petit jury for his trial and, in some instances, for selection of the grand jury that indicted him, was tainted by a disproportionate paucity of members of his minority group in violation of his right to equal protection of the laws, as guaranteed by the fourteenth amendment to our federal constitution. All the petitioners rely upon the decision of the United States Court of Appeals for the Second Circuit in Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), holding that the town quota system for selecting veniremen established by General Statutes (Rev. to 1975) § 51-220 had resulted in underrepresentation of black people in the pool of prospective jurors and grand jurors serving New Haven County in 1975, when the trial of the petitioners in that case took place, and that this disparity violated the principle of equal protection. A similar claim presented to this court on appeal as a violation of the right to a jury composed of a fair cross section of the community under the sixth amendment to our federal constitution, together with many other jury composition claims, had been rejected in State v. Haskins, 188 Conn. 432, 436-41, 469, 450 A.2d 828 (1982). Unlike the situation in Alston, however, none of these petitioners presented any effective challenge to the array of grand or petit jurors before trial, as required by Practice Book § 811, and, accordingly, they would ordinarily be deemed to have waived the infirmities now relied upon to set aside their convictions, as Practice Book § 810 provides. The habeas court ruled, neverthe less, that there had been no such waiver because the evidence did not indicate that the petitioners had deliberately bypassed their right to challenge the array of prospective jurors or grand jurors. The court also rejected an alternative claim of the petitioners that the failure of their attorneys to raise and pursue challenges to the array constituted ineffective assistance of counsel in violation of the sixth amendment to our federal constitution. Proceeding to the merits of the claim of disproportionate representation in the jury pools, the court concluded that the petitioners had not established any underrepresentation of black or Hispanic people for the years involved, 1976 through 1983, because no evidence as to the actual composition of those pools based upon observation or records of their membership had been presented. Accordingly, judgments were rendered dismissing each petition. On appeal, the petitioners contest the conclusion of the habeas court that they have failed to prove any underrepresentation of the minority groups to which they belonged in the jury arrays available for the selection of jurors and grand jurors at the time of their convictions. They also maintain that the judgments should be reversed because of the refusal of the court to grant their petitions on the alternative ground of ineffective assistance of counsel based upon the failure of their attorneys to present timely challenges to the array. The state claims, as an alternative ground for affirming the judgments, that the applicable standard for reviewability of these belated challenges to the array is the "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and not "deliberate bypass," as proclaimed in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). We conclude, contrary to the habeas court's view, that the appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial because of a procedural default, such as failure to challenge the array, is the Wainwright standard of "cause and prejudice," as the state contends. We also decide that the petitioners have not satisfied that standard. We affirm the conclusion of the habeas court, however, that the petitioners have not demonstrated ineffective assistance of counsel, although on grounds different from those relied on by the court. Because we conclude that habeas review is precluded by the failure to file challenges to the array before trial, as required by § 811, we do not address the merits of the equal protection claims of the petitioners. The pertinent facts are not disputed. All the petitioners are black or Hispanic and were convicted during the period that § 51-220 remained in effect. This statute, which originated in colonial times, specified the number of jurors to be chosen yearly from each town of this state according to a classification based on the population of the town. The number of jurors from a town, however, was not uniformly proportional to its population but was skewed to provide for larger proportions of jurors from smaller towns. During the period when the petitioners were convicted, the statute, at its extremes, provided for thirty jurors in towns with populations of 750 through 1500, or 2 percent of their populations, while towns with populations of more than 100,000 were allowed 1012 jurors, or 1 percent of their populations. No provision was made for additional jurors from towns with populations substantially greater than 100,000, such as New Haven, where most of the black and Hispanic people in the county reside. Only four of the petitioners filed challenges to the array and these were never pursued. In the habeas court the petitioners attempted to estimate retrospectively the impact of § 51-220 on the proportion of black and Hispanic people in the jury arrays for the years 1976 through 1983 by applying statistical theory to census data. According to the statistical method used, the statute resulted in shortfalls projected on the basis of population varying from 3 percent to 7 percent of the number of black or Hispanic jurors for all the petitioners, except two of the three Hispanic petitioners, whose shortfalls were 18 percent and 16 percent. In Alston v. Manson, supra, 258, the court concluded on the basis of a shortfall of 1.58 percent for black jurors in New Haven county not only that § 51-220 had a disparate impact but also that a "presumption of discriminatory intent" arose from its existence, which the state had failed to rebut. I In Fay v. Noia, supra, 438-39, the United States Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state court proceedings resulting in his conviction. The court recognized, however, a limited discretion in the federal habeas judge to "deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id., 438. This deliberate bypass standard for waiver required " 'an intentional relinquishment or abandonment of a known right or privilege' " by the petitioner personally and depended on his "considered choice." Id., 439. "A choice made by counsel not participated in by the petitioner does not automatically bar relief." Id. Under this standard, the habeas court's conclusion in these cases, that there had been no deliberate bypass of the right to challenge the jury array because the petitioners were unaware of their right to do so, is unassailable. The state does not contend otherwise. The deliberate bypass standard of Fay was implicitly abandoned in two subsequent cases involving post-conviction challenges to grand juries that, like the petitions before us, were based on the exclusion of minorities. In those cases the court enforced explicit waiver provisions of state and federal procedural rules similar to § 810 and § 811 by declining to consider the merits of the constitutional claims raised. Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). In Wainwright v. Sykes, supra, 87, the court expressly rejected the "sweeping language" of Fay, "which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention." The court upheld a state court's refusal to decide the merits of a claimed Miranda violation first raised in a posttrial motion and in state habeas corpus proceedings, contrary to a state "contemporaneous objection" rule. The court adopted as a new standard for federal habeas review the rule set forth in Francis v. Henderson, supra, 542, that "[i]n a collateral attack upon a conviction," the petitioner must make "not only a showing of 'cause' for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice." Thus was born the Wainwright "cause and prejudice" standard for habeas review. The petitioners claim, nevertheless, that this court, despite the demise in Wainwright of the deliberate bypass standard for maintaining a federal habeas corpus petition, has adhered to that standard in state habeas proceedings. We first adopted the deliberate bypass standard for state habeas proceedings in 1966, three years after Fay had been decided. Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966). "We hold . . . that a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to us if he alleges and proves by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal." Id. In our first reference to the Wainwright revision of the federal standard, we distinguished between strategic or tactical decisions of the kind normally committed to counsel and those left to the defendant himself, such as "whether to plead guilty, to forego the assistance of counsel or to refrain from an appeal." McClain v. Manson, 183 Conn. 418, 428-29 n.15, 439 A.2d 430 (1981). For the latter category, specifically with respect to the failure to appeal, we indicated that the deliberate bypass standard of Fay would be applicable. Id. We have continued to apply the deliberate bypass stan dard to habeas petitioners seeking the determination of issues that should properly have been raised on appeal. Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988); Payne v. Robinson, 207 Conn. 565, 568-69, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); Paulsen v. Manson, 193 Conn. 333, 337-38, 476 A.2d 1057 (1984); D'Amico v. Manson, 193 Conn. 144, 146-47, 476 A.2d 543 (1984); Morin v. Manson, 192 Conn. 576, 579, 472 A.2d 1278 (1984); Turcio v. Manson, 186 Conn. 1, 3, 439 A.2d 437 (1982). Since the advent of Wainwright we have not in a habeas proceeding applied the deliberate bypass standard to a procedural default in the trial court, such as a failure to challenge a jury array before trial, except in one instance. In Payne v. Robinson, supra, 569, we indicated that the exception for unpreserved constitutional claims articulated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), so frequently invoked on direct appeal, should apply also "to constitutional claims raised for the first time in a collateral proceeding so long as they are not barred by the petitioner's deliberate bypass of a direct appeal." We referred specifically to "claims that were not properly preserved at trial when they facially implicate fundamental constitutional rights and are adequately supported by the record." (Emphasis added.) Payne v. Robinson, supra. In State v. Evans, supra, 70-71, which was a direct appeal from the judgment of conviction in the trial court, we rejected for lack of an adequate record a claim similar to those of these petitioners, "that the jury were selected in a constitutionally impermissible manner in that members of the black race were systematically excluded from the jury . . . ." That claim had first been raised on appeal and we declared that, "[sjince the record discloses nothing whatsoever to support this claim, we have no basis for determining its merits and do not consider it." Id, 71. Thus, even if we were to follow Payne in these cases with respect to the applicability of the Evans standard to constitutional claims not preserved at trial because of a procedural default, these petitioners could not prevail since the trial court record in each case contains nothing regarding the composition of the petit or grand juries that they belatedly challenge. We have concluded, however, that our dictum in Payne concerning the applicability of the Evans standard of appellate review to constitutional claims first raised in postconviction habeas corpus proceedings was inappropriate. We failed to give sufficient consideration to the special problems that are likely to arise relating to the feasibility of a second trial when a conviction is set aside by a habeas court rather than by an appellate court. These problems are related mainly to the more extended delay of the second trial that frequently results from a reversal of a conviction by a habeas court. There is no statute of limitation or other time limit that would bar a habeas petition. United States v. Smith, 331 U.S. 469, 475, 67 S. Ct. 1330, 91 L. Ed. 1610 (1947). Ordinarily the petition may not be filed until appellate remedies have been exhausted, lest the petitioner be charged with a deliberate bypass of an appeal. An additional record must be created in the habeas court, which may require extensive testimony. If the petitioner is successful in overturning his conviction, another appeal is almost inevitable. A direct appeal folio-wing a conviction, on the other hand, is subject to strict time limits at each stage of the proceeding. Except for extraordinary cases, an appeal in this state is ordinarily determined within approximately one year from the date it was filed. The greater time lapse that results when a second trial is ordered by a habeas court has a serious impact on the availability of witnesses and other evidence for the second trial. Memories fade with the passage of time, exhibits are lost, and other evidence is less likely to be available. Appellate counsel would have less incentive to raise on appeal all arguable constitutional claims of the defendant if another opportunity to raise such claims were available in the habeas court. We are convinced that these consequences would be sufficiently harmful to the administration of justice in this state as to require that we withdraw our dictum in Payne concerning the applicability of the Evans standard for appellate review to habeas corpus proceedings. Apart from Payne, the petitioners' claim of continued adherence by this court to the deliberate bypass standard for habeas corpus review following its abandonment by the federal courts is unfounded with respect to trial court procedural defaults. We have expressly reserved the issue of whether to adopt the federal cause and prejudice standard for procedural defaults in the trial court, because it has not become necessary previously to resolve that issue. Valeriano v. Bronson, supra, 83 n.7; McClain v. Manson, supra, 429 n.15. With respect to such defaults on appeal, as previously noted, we have not applied the federal standard. Valeriano v. Bronson, supra, 86; Paulsen v. Manson, supra, 337-38; D'Amico v. Manson, supra, 148; Morin v. Manson, supra, 579; Turcio v. Manson, supra, 3. These petitions, however, afford an appropriate occasion for declaring our adoption of the federal standard for habeas review with respect to constitutional claims not properly preserved because of a trial court default. If deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial. It is not common practice and would be unduly cumbersome to establish a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial when such rights are involved. Most of these choices during trial, such as whether to move for suppression of evidence or to cross-examine a particular witness, must necessarily be left to counsel, subject to the requirement that his performance satisfy reasonable standards of competency. In those rare instances in which a deliberate bypass is found, of course, habeas review would be barred for that reason alone, apart from the cause and prejudice standard. Fay v. Noia, supra, 438-39. We are persuaded that habeas review of constitutional claims never raised in the trial court, in violation of our rules of practice, would thrust too great a burden on our criminal justice system. Commenting specifically upon the necessity for enforcement of a rule requiring that challenges to the composition of grand juries be made before trial, the United States Supreme Court has declared: "If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." Davis v. United States, supra, 241; see Vena v. Warden, supra, 367. These considerations are especially significant for the thirty-one petitioners now before us, whose trials took place between seven and sixteen years ago. Furthermore, if the jury composition claims had been raised at trial, it would have been possible to ascertain by observation, with greater certainty than by statistical analysis based on only one of many factors affecting jury composition, whether there was any actual disparity of minority representation among the jurors available for selection in each case. We need not in this case consider whether some revision in our adherence to the deliberate bypass standard for procedural defaults in the appellate process is warranted. The federal courts have refused to except procedural defaults at the appellate level from the application of the Wainwright cause and prejudice standard. Murray v. Carrier, 477 U.S. 478, 489-90, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). Some of the evil consequences we have mentioned with respect to trial court defaults that delay the resolution of issues that should have been decided expeditiously by appeal also arise when defendants inexcusably defer the filing or processing of an appeal and utilize habeas corpus in order to circumvent the appellate procedural bar. This question, however, is not presently before us and we leave it for another time. We conclude, therefore, that the habeas court, after finding that the petitioners had not deliberately bypassed their right to review of their jury composition claims, should have then applied the Wainwright cause and prejudice standard for reviewability of constitutional claims that were not raised seasonably, as required by a trial court procedural rule. Unless the petitioners can satisfy that standard, they are not entitled to review of their claims on the merits. II We must now consider whether the petitioners have satisfied the federal habeas standard for reviewability when there has been a procedural default, "cause and prejudice." The habeas court concluded that the petitioners had demonstrated cause but not prejudice. We disagree with the first conclusion and, therefore, find it unnecessary to discuss the second, because, for reviewability, a federal petitioner must establish cause and prejudice conjunctively. Murray v. Carrier, supra, 496-97. "[A]ny prisoner bringing a constitutional claim to the federal court house after a state procedural default must demonstrate cause and actual prejudice before obtaining relief." Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). The source of the requirement that good cause be shown to excuse a procedural default was the provision of Rule 12 (b) (2) of the federal rules of criminal procedure that failure to raise defenses or objections required to be made before trial " 'constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.' " Davis v. United States, supra, 236. Implicitly "cause" denotes good cause. See United States v. Harrelson, 705 F.2d 733, 738 (5th Cir. 1983); United States v. Johnson, 614 F.2d 622, 623 (8th Cir. 1980); see also Davis v. United States, supra, 256 (Marshall, J., dissenting). In finding such cause in these cases, the trial court concluded that, because it was the "settled law" in Connecticut that challenges to the constitutionality of § 51-220 would have been futile prior to the federal court decision in Alston, the legal basis for making such a constitutional claim was not reasonably available to the attorneys representing the petitioners at the time of their trials, all of which preceded that decision. The court relied upon a statement in Reed v. Ross, 468 U.S. 1, 14, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984), that "the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement [of cause] is met." "Counsel's failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State's procedural bar." Id., 15. We disagree with the habeas court's conclusion that a challenge to the array based upon underrepresenta tion of black or Hispanic people stemming from the impact of § 51-220 was sufficiently novel at the time of the petitioners' trials to excuse their failure to raise such a claim before trial. It is true that in State v. Townsend, 167 Conn. 539, 548-50, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975), this court had rejected a claim that § 51-220 operated to exclude a disproportionate number of black people from the jury pools because of their residence in Norwalk, Stamford, and Bridgeport, three urban towns of Fairfield County. The basis for denying this claim, however, was the failure to present evidence of "what percentage of the black residents in these towns are registered voters and whether they are more concentrated in one town than another," because "[j]uror selection is not based on residence, but on voter registration." Id., 549 We concluded that "it is impossible to decide this claim on the data presented." Id., 549-50. Townsend can hardly be viewed as upholding the constitutionality of § 51-220 in the context of evidence sufficiently demonstrating that its town quota system of juror selection had resulted in underrepresentation of black people qualified as registered voters to become jurors. Thus, it was not the "settled law in Connecticut" that challenges to the array of jurors based upon the influence of § 51-220, if properly presented, would be futile. Furthermore, even if the trial court's assumption were correct concerning the inevitable outcome of motions to challenge the array in this state at the time the petitioners were tried, the futility of presenting such a challenge in a state court is not a sufficient excuse for failure to do so at trial. Engle v. Isaac, supra, 130. "If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes." Id. "[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray v. Carrier, supra, 486-87. From the viewpoint of federal constitutional law at the time of the petitioners' trials, it can hardly be contended that there was no reasonable basis for challenging a jury array upon the ground that a statute, such as § 51-220, might have a disproportionate impact on the availability of minority jurors. Such a claim had been made prior to 1975 in State v. Townsend, supra, before any of these petitioners had been tried and was not categorically rejected. Challenges to jury composition have been the subject of litigation in the federal courts for more than a century. See Neal v. Delaware, 103 U.S. 370, 394, 26 L. Ed. 567 (1880); Virginia v. Rives, 100 U.S. 313, 321, 25 L. Ed. 667 (1879); Strauder v. West Virginia, 100 U.S. 303, 309, 25 L. Ed. 664 (1879). The statistical decision theory as applied to jury composition, which was relied on in Alston to establish the improbability that mere chance might account for the disparities claimed, had been circulating at least since 1966 and had been recognized as an appropriate analytical device in a decision of the United States Supreme Court argued in 1976. See M. Finkelstein, "The Application of Statistical Decision Theory to the Jury Discrimination Cases," 80 Harv. L. Rev. 338 (1966); see also Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). This case does not present a circumstance heretofore recognized as a ground for excusing a procedural default, such as when the United States Supreme Court "has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application." Reed v. Ross, supra, 17. Alston did not purport to expound any new constitutional principles but merely upheld the findings of the federal district court that (1) the defendants had established a prima facie case of discrimination against black jurors on the basis of an estimate of the probable impact of § 51-220 on the jury pool for New Haven County in 1975 calculated by use of the statistical decision theory; and (2) the state had failed to refute the inference of discrimination raised by the statistical evidence. The legal principles relied upon had been set forth in Castaneda v. Partida, supra, and the only novelty in the Alston decision was the success of the defendants in persuading the federal district and circuit courts to conclude that a presumption of intentional discrimination on the part of the legislature was warranted because of the disparate impact of § 51-220 on black residents of New Haven County. We conclude, therefore, that the habeas court was incorrect in finding that there was no reasonable basis for raising a challenge to the array grounded upon § 51-220 at the time of the petitioners' trials, all of which followed the trial of the defendants in Alston. Accordingly, the petitioners have failed to demonstrate that there was good cause for their failure to challenge the jury arrays before trial. Ill The remaining ground upon which the petitioners seek to have their convictions set aside is that the fail ure of their attorneys to make and pursue challenges to the arrays available for selection of the grand or petit jurors who considered their cases constituted ineffective assistance of counsel in violation of their right to competent legal representation created by the sixth amendment to our federal constitution. "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). There are two components of a claim of ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The trial court held that these petitioners had not satisfied either component. It concluded that the failure of their counsel to challenge the composition of the arrays was reasonable in view of the "settled law" in this state regarding the constitutionality of § 51-220. The court also concluded that the petitioners had not shown prejudice because (1) there was no evidence that the outcome of their cases would have been different if the jurors who had indicted or convicted them had included more members of their minority groups, and (2) its finding that the evidence did not establish the claimed equal protection violation necessarily implied that there had been no prejudice. We have expressed in Part II our disagreement with the habeas court's view of the "settled law" concerning the viability of a constitutional challenge to § 51-220 based upon its impact on minority representation in jury arrays. Accordingly, we reject the ground relied on by the court for concluding that counsel perform anee had not been deficient. We conclude, nevertheless, that the attorneys representing the petitioners did not fall below the Strickland standard by failing to challenge the arrays. Thus we affirm the court's ultimate conclusion that the petitioners had not demonstrated ineffective assistance of counsel. It is unnecessary, therefore, for us to address the question of prejudice, which the court decided adversely to the petitioners. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, supra, 687-88. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Citations omitted.) Id., 689. "We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim." Engle v. Isaac, supra, 134. The petitioners rely largely on the hindsight provided by the decision in Alston as setting the professional norms for counsel performance in their cases, which were disposed of prior to that decision. In that case, which was tried in New Haven in 1975, the defendants, who were black, made an all-encompassing challenge to the petit jury array based upon the exclusionary effect of the jury selection system on such persons as teachers, students, clergymen, women, and people of low income and poor education, but also including black people. The principal thrust of the claim of discrimination against blacks was the disparate impact on them of the statutory requirement existing in 1975 that jurors be electors, because of their failure at that time to register as voters in the same proportion as the general population. Among the various claims raised in the briefs when the defendants appealed to this court, however, was some reference to the discriminatory effect on blacks of the statutory town quota system of juror selection. Conn. Supreme Ct. Records & Briefs, Vol. A-807, June Term, 1982, Part 3, Haskins Reply Brief, p. 7, and Alston brief, p. 20; see State v. Haskins, supra, 439-40. This challenge to the array was viewed by this court as presenting a claim that their right under the sixth and fourteenth amendments to our federal constitution had been violated because the array did not represent a fair cross section of the community rather than as an equal protection of the laws claim. State v. Haskins, supra, 436-41, 469; see also Alston v. Lopes, supra, 994 n.1. The statistical evidence that was relied upon in Alston to prove that § 51-220 had caused under-representation of black people in the jury array was never presented at trial or to this court, but was first brought forth in the federal district court. Alston v. Lopes, supra, 992. The petitioners' claims of ineffective assistance of counsel are based solely upon the failure of their attorneys to perceive what the Alston attorneys, at least in 1985 before the federal district court, did perceive, that a viable equal protection challenge might be based upon the disparate impact of § 51-220 on minority representation on juries. We do not agree that such a failure constitutes a violation of the Strickland standard for competent representation of a criminal defendant. Even with the hindsight provided by Alston, it is debatable whether a challenge to the array, even if successful, must inevitably redound to the benefit of a criminal defendant. Unlike an acquittal, which is dispositive of the charge, a successful challenge to the array simply delays a final resolution of the case in the trial court while a different jury array is assembled and, when a defendant has not been released on bond, often may result in prolonged incarceration of defendants ultimately found not guilty. Furthermore, upon observation of the members of a grand jury or of a particular panel of jurors in the courtroom available for selection in the trial of a case, counsel may well be satisfied that it contains as many minority jurors as needed to satisfy equal protection or fair cross section standards, and possibly more than required. In Alston, it was found on the basis of the statistical evidence presented that the array should have been 5.96 percent black to correspond with the proportion of black residents of New Haven county, but was actually only 4.38 percent black, a shortfall of 1.58 percent. It is far from clear that the professional norm would demand in every case that counsel should expend the resources necessary to pursue a challenge to the array simply because there might then be 1.58 more blacks among every one hundred jurors available for jury selection. The actual, as opposed to estimated, minority composition of the grand juries or of the panels of jurors available for selection of the juries in the cases of the petitioners is not revealed by the record. It would be speculative to assume that they were so plainly underrepresentative of minorities that competent counsel would have viewed the situation as warranting a challenge to the array in order to ensure fairness to his minority client. As precedent to support their claim that failure to raise and pursue a challenge to the array that might ultimately prove successful warrants a finding of ineffective assistance of counsel, the petitioners rely on Goodwin v. Balkcom, 684 F.2d 794, 820 (11th Cir. 1982), cert. denied, 460 U.S. 1098,103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983). In that case the court in finding ineffective assistance did rely partly on the failure of counsel to challenge the array as underrepresentative of black people and of women. Some time after the petitioner had been convicted, and sentenced to death, the jury selection system in the same Georgia county was successfully challenged on those grounds. The court, however, was primarily concerned with counsel's general attitude as indicated by his testimony in explaining his failure to challenge the array, that he was concerned over community ostracism if he should make such a challenge and had already suffered embarrassment from inquiries received about his representation of the defendant. Id., 805-807. The court also relied upon the failure of counsel to move to suppress a confession that may have been the product of an illegal arrest. Id., 819. A failure to challenge a grand jury array alone, even when subsequent events relating to the same grand jury lists demonstrate that such a challenge would have been effective, has been rejected as a basis for finding ineffective assistance of counsel, despite the court's evident awareness of Goodwin as a controlling precedent. Fleming v. Zant, 560 F. Sup. 525, 537-38 (M.D. Ga. 1983). Having concluded that the petitioners have not demonstrated ineffective assistance of counsel in accordance with the first requirement of the Strickland standard, we affirm the habeas court's rejection of this claim without consideration of the second requirement, prejudice. The judgments are affirmed. In this opinion the other justices concurred. In Docket No. 13949, Keith Freeman v. Commissioner of Correction, the petitioner never went to trial but pleaded guilty to the grand jury indictment charging him with felony murder. He claims that he never would have pleaded guilty if he had known of the availability of a challenge to the grand jury. The habeas court rejected this claim after hearing the evidence. Our disposition of these cases makes it unnecessary to review this alternative ground for the judgment dismissing his petition. In Docket No. 13984, Antonio Feliciano v. Commissioner of Correction, the petitioner also pleaded guilty to the grand jury indictment. The habeas court concluded that his plea constituted a waiver of any defect in the composition of the grand jury. Again, because of our disposition of these cases on different grounds, we need not address this alternative basis for the habeas court's decision. The fourteenth amendment to the United States constitution, § 1 provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), the court affirmed the judgment of the federal District Court based on the same ground in Alston v. Lopes, 621 F. Sup. 992 (D. Conn. 1985), which was announced on November 5,1985. Throughout this opinion the designation Alston refers to the decision of the Second Circuit unless otherwise indicated. "[Practice Book] Sec. 811. —time for making pretrial motions or REQUESTS "Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the court, at such later time as the judicial authority may fix. However, defenses and objections alleging lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings." "[Practice Book] Sec. 810. —FAILURE TO RAISE defense, OBJECTION OR REQUEST "Failure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver, provided, however, that lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings." The sixth amendment to the United States constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." "[General Statutes (Rev. to 1975)] Sec. 51-220. number of jurors for each TOWN. The number of jurors to be chosen for each town shall be as follows: In towns whose population as determined by the last-completed census of the United States is less than seven hundred and fifty, fifteen; in towns whose population so determined is at least seven hundred and fifty but not more than one thousand five hundred thirty; in towns whose population so determined is more than one thousand five hundred but not more than twenty-five hundred, fifty-six; in towns whose population so deter mined is more than twenty-five hundred but not more than five thousand, ninety; in towns whose population so determined is more than five thousand but not more than ten thousand, one hundred twenty; in towns whose population so determined is more than ten thousand but not more than twenty-five thousand, two hundred twenty-five; in towns whose population so determined is more than twenty-five thousand but not more than fifty thousand, three hundred thirty-seven; in towns whose population so determined is more than fifty thousand but not more than one hundred thousand, six hundred seventy-five; and in towns whose population so determined is more than one hundred thousand, one thousand and twelve; provided, for the purposes of this section, the population of a town shall not include the patients of any state institution located in such town." This statute was amended in 1982 by Public Acts 1982, No. 82-307, § 2 (February 1982 Session), to repeal the town quota system for choosing prospective jurors and to provide that the number of jurors "from each town shall be equal to one and one-half percent of the town's population," but these changes were made applicable only to jurors summoned for duty on or after September 1,1983. By a further amendment, adopted in June, 1983, but not effective until July 1,1985, the jury administrator was empowered to determine the appropriate percentage to be used in determining the number of jurors from each town for duty on and after September 1, 1986. Public Acts 1983, No. 83-5, § 4 (June 1983 Session). Before the 1983 amendment became effective, a further amendment, effective June 7,1984, reinstated the statutorily fixed one and one-half percent of each town's population for determining the number of jurors from each town with respect to jurors summoned on or before August 31,1986, but authorized the jury administrator to establish the appropriate percentage to be used for those summoned on or after September 1,1986. Public Acts 1984, No. 84-393, § 4. Such challenges were filed by petitioners Kenneth Freeman (Docket No. 13949), Armando Valeriano (Docket No. 13976), Napier Talton (Docket No. 13960), and Reginald Jones (Docket No. 13982), but were either withdrawn or not pursued. The method used is referred to as the statistical decision theory or SDT. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). "Thus, despite the subsequent limitations on Fay, and because Sykes left open the question whether its 'cause' and 'prejudice' standard would apply in a Fay type case where the failure to take an appeal was involved, the ultimate responsibility that is upon the defendant himself to decide whether an appeal is to be taken persuades us to apply the 'deliberate bypass' standard of Fay to this case." McClain v. Manson, 183 Conn. 418, 429 n.15, 439 A.2d 430 (1981). Prior to Wainwright, we had allowed a habeas petitioner to present constitutional claims never raised in the trial court as well as those not raised on appeal if he alleged and proved that he had not deliberately bypassed opportunities to present such claims in accordance with standard procedural rules. Walters v. Warden, 155 Conn. 316, 319, 232 A.2d 112 (1967); Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802 (1966). It is not clear whether in Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), the record referred to, which provided the evidentiary basis for the review conducted by the habeas court, was the transcript of the trial or of the habeas corpus proceeding. In Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), we reviewed in a habeas appeal a claim that evidence obtained from an unlawful search had been admitted at a probation revocation hearing, despite the absence of a motion to suppress or any objection to such evidence. We held, however, that the exclusionary rule was inapplicable to such a proceeding and upheld the judgment. The portion of the opinion concerning reviewability, therefore, was not essential to the outcome of the appeal and may be characterized as dictum. [Federal Rules of Criminal Procedure (U.S.C., 1970 Ed.)] Rule 12. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS . "(b) The Motion Raising Defenses and Objections. . . . "(2) Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indict ment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding." (This rule was amended April 22, 1974, effective December 1, 1975; July 31, 1975, Pub. L. No. 94-64, § 3 [11], [12], 89 Stat. 372.) It must be remembered that the attorneys who represented the petitioners in Alston did file a challenge to the array in 1975 in the trial court based in part on a claim that the town quota system for jury selection discriminated against black people. See footnote 6, supra. General Statutes (Rev. to 1975) § 51-217 required that "[a]ll jurors shall be electors" until October 1, 1982, when an amendment providing as an alternative, that jurors maybe "citizens of the United States who are residents of this state and listed in the records of the motor vehicle department as persons to whom motor vehicle operators' licenses have been issued" became effective. Public Acts 1982, No. 82-11, § 1. This prior amendment did not become applicable to any of the arrays of jurors available at the time the petitioners were convicted.

The state's amended motion to dismiss the defendant's motion for review dated June 22, 1976, is dismissed as moot.

The plaintiffs' petition for certification for appeal from the Appellate Court is dismissed.

Shea, J. The named plaintiff, Carrie Wasfi, sued the defendants for medical malpractice in the diagnosis and treatment of an acoustic neuroma. Specifically, she claimed that the defendant Shashi Chaddha, a radiologist, had negligently failed to detect the presence of an acoustic neuroma when he performed a CAT scan on her in May, 1981, and that the defendant Frank J. Riccio, an otolaryngologist, had negligently failed to diagnose and treat the acoustic neuroma in October, 1982, after she reported a sudden hearing loss. The neuroma, and its subsequent surgical removal in 1983, caused total hearing loss in Wasfi's right ear, facial paralysis, hemiparesis of the left side, and voice loss. After a twenty-day trial, the jury returned verdicts in favor of the defendants. Wasfi appealed, claiming numerous errors in the trial court's instructions to the jury. We affirm the judgment. The jury could reasonably have found the following facts. Since childhood, Wasfi had suffered from diabetes. At various times between 1977 and 1981, she had experienced visual and other problems linked to diabetes and had undergone hospital treatment. In 1981, Wasfi sought treatment for recurring headaches from her family physician, Joseph Sciarrillo. Sciarrillo ordered X rays, a CAT scan and an electroencephalogram (EEG). Chaddha was the radiologist who performed the CAT scan. Chaddha later testified that he had not been fully informed of Wasfi's symptoms prior to evaluating the CAT scan results. In any event, Chaddha reported to Sciarrillo that the CAT scan result was normal. Sciarrillo prescribed headache medication for Wasfi, which had some positive effects. In October, 1982, Wasfi noticed sudden loss of hearing in one ear when she attempted to use the telephone. She went to Joseph Riccio, an otolaryngologist, told him of the hearing loss, and also reported headaches, a recent cold and "lightheadedness." Riccio conducted some office tests and told Wasfi that the hearing loss might be viral (related to her cold) or vascular (related to her diabetes). He recommended "carbogen therapy," a treatment involving inhalation of a mixture of carbon dioxide and oxygen intended to open a blocked ear vessel. Riccio arranged for other practitioners to perform the therapy and advised Wasfi to contact him after the therapy was complete. Had Wasfi reported continued hearing loss following such treatment, he would at that time have recommended a CAT scan. Wasfi discussed the suggested carbogen therapy with her husband. After the discussion, she decided not to undergo the carbogen therapy. Wasfi did not inform Riccio of her decision and did not contact him again, although her hearing did not improve. Six months after her visit to Riccio, she began to experience severe headaches. After a month of the headaches, in May, 1983, she returned to her family physician, Sciarrillo. When a second CAT scan revealed the presence of a tumor, Sciarrillo immediately had her admitted to a hospital, where the neuroma was removed. At the trial, experts on both sides testified concerning, inter alia, the propriety of Riccio's prescription of carbogen therapy prior to ordering a CAT scan. The thrust of Riccio's evidence was that when a patient suffers a hearing loss that may be caused by dozens of nonthreatening conditions, doctors routinely attempt to screen out such conditions before ordering a CAT scan, which would be used to detect a more serious cause for the hearing loss; that if carbogen therapy is successful in restoring hearing, it would also rule out more serious causes for the hearing loss; and that Riccio's decision to recommend carbogen therapy before ordering a CAT scan was only an application of this standard practice. In addition, Riccio's counsel elicited expert testimony to the effect that the timing of the CAT scan—before carbogen therapy or after carbogen therapy—was a matter of professional opinion as to which physicians differed. Finally, both defendants offered evidence that by the time Wasfi came to Riccio for treatment, no CAT scan would have made a difference, for the damage had already been done. The trial court included in its charge to the jury specific instructions on (1) "intervening cause" and (2) "schools of thought" as they affect the standard of care. After the charge was given, court adjourned for the weekend. When court resumed, the parties presented their exceptions to the charge. Wasfi excepted to the "schools of thought" charge as unwarranted by the evi dence, and all parties excepted to the instruction on intervening cause. Persuaded by some of the exceptions, the trial court gave a revised instruction on the subject of proximate cause in an attempt to eliminate the problems with the earlier charge on intervening cause. It did not revise or delete the instruction on "schools of thought." It explained the verdict forms, which provided for a general verdict as to each defendant, but no special interrogatories were submitted. The jury began deliberating that day. The next day the jury requested clarification of the intervening cause instruction. In response, the court told the jury to disregard the second instruction and issued a third and final instruction on intervening cause. Introducing the third charge, the judge said "I'm going to go back in part to my original charge." Wasfi's and Riccio's counsel both took exception to that statement as well as to other parts of the charge. After deliberating another day, the jury returned general verdicts in favor of Riccio and Chaddha. On appeal, Wasfi challenges the trial court's charges on(l) "schools of thought" and (2) intervening cause. I Wasfi contends that the trial court improperly gave an instruction on "schools of thought" when there was no evidence that Riccio had adhered to and acted according to the dictates of a particular school of medical thought distinct from that followed by her own expert witnesses. The trial court included the disputed instruction in its first charge to the jury, and did not revise it in giving the subsequent curative instructions. The disputed instruction followed a lengthy general instruction on medical malpractice, including the applicable standard of care. After this instruction, the trial court discussed the claims against each doctor. As to Wasfi's claims against Riccio, the trial court stated: "Now as to Dr. Riccio who undertook treatment of Mrs. Wasfi in his capacity as otolaryngologist, it is his alleged failure to properly diagnose and order proper follow-up studies when he saw Mrs. Wasfi in his office on October 29th, 1982, which is the gravamen of their claim against him. In essence, however, this claim is substantially the same as that presented against Dr. Chaddha. That is the failure to timely and skillfully diagnose her ailment. Consequently the same principles of law that apply to Dr. Chaddha relating to a physician's duty to properly diagnose a patient's ailment apply with equal force to Dr. Riccio." The court then gave the challenged instruction: "There is, however, one specification of negligence that is peculiar to Dr. Riccio. That specification appears in paragraph 8e of the third count of the complaint and is in essence a claim that Dr. Riccio prescribed a course of treatment that was unsuited for Mrs. Wasfi's condition. "There has been testimony in this case that Dr. Riccio elected a certain course of treatment for Carrie Wasfi's condition as he understood it in 1982, to wit: carbogen therapy. There has also been testimony that another course of treatment should have been undertaken and that is ordering a CAT scan. Now there may be more than one established system of diagnosis and treatment. While the law recognizes that there are different schools of thought in this regard, it does not favor or give exclusive recognition to any particular system of diagnosis and treatment over another. "The law is that a physician is not bound to use any particular method or medical school of thought in diag nosing his patient. When a physician of ordinary skill and learning recognizes several methods of diagnosis as proper, the defendant may adopt any such methods without subjecting himself to liability [for] an unfortunate result so long as such method of diagnosis is consistent with the skill, care and diligence ordinarily had and exercised by other specialists in his field in like cases at that time he undertook that function. Thus, if you were—if there were several established methods of diagnosis recognized at the time Dr. Riccio saw Mrs. Wasfi in his office on October, 1982, the test is not whether Dr. Riccio adopted a method another doctor might not adopt, but whether the method he did adopt was one that was in compliance with the standard of care, skill and diligence required of the particular school of thought embracing that method. "Therefore, you must decide whether or not the carbogen therapy prescribed by Dr. Riccio for Wasfi was an established diagnostic modality under any recognized school of thought or in cases such as Mrs. Wasfi presented to him in October of 1982. If you find by a fair preponderance of the evidence that carbogen therapy was not consistent with any established diagnostic modality for cases such as Mrs. Wasfi's, then it would be negligent for Dr. Riccio to employ it on Mrs. Wasfi. If, however, you conclude that such a diagnostic modality was an established modality for treating patients in like cases, by ordinarily prudent radiologists [sic] in October of 1982, then Dr. Riccio was not negligent in using it." Seizing upon the trial court's use of the term "schools of thought," Wasfi assumes that the foregoing charge purported to summarize the principle that the law will not judge between different medical "schools of thought" so long as a physician acts according to the standards within that "school." Force v. Gregory, 63 Conn. 167, 171, 27 A. 1116 (1893). She contends, correctly, that such a charge on "schools of thought" would be improper where, as here,- no evidence was offered that Riccio adhered to a "recognized school of good standing, which has established rules and principles of practice for the guidance of all its members, as respects diagnosis and remedies, which each member is supposed to observe in any given case." 61 Am. Jur. 2d, Physicians, Surgeons and Other Healers § 214, p. 345; see Katsetos v. Nolan, 170 Conn. 637, 652, 368 A.2d 172 (1976); Geraty v. Kaufman, 115 Conn. 563, 571, 162 A. 33 (1932); Force v. Gregory, supra; Bryant v. Biggs, 331 Mich. 64, 73-78, 49 N.W.2d 63 (1951); but see Furey v. Thomas Jefferson University Hospital, 325 Pa. Super. 212, 224-25, 472 A.2d 1083 (1984) (different schools of thought exist where competent medical authority is divided). Riccio offered no evidence that his conduct was in accordance with such a distinct "school of thought." Instead his evidence tended simply to show that whether, after a tentative diagnosis of a viral or vascular cause for hearing loss, it was proper to recommend carbogen therapy prior to a CAT scan was a matter of professional opinion—in other words, within the normal range of professional discretion exercised by competent otolaryngologists. Despite the unfortunate use of the term "schools of thought," we believe that the trial court did not instruct on "schools of thought," but instead, correctly stated the settled principle that "where the treatment or procedure is one of choice among competent physicians, a physician cannot be held guilty of malpractice in selecting the one which, according to his best judgment, is best suited to the patient's needs." Ball v. Mallinkrodt Chemical Works, 53 Tenn. App. 218, 224, 381 S.W.2d 563 (1964); O'Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975); 61 Am. Jur. 2d, Physicians, Surgeons and Other Healers § 216; see also Meier v. Ross General Hospital, 69 Cal. 2d 420, 434, 445 P.2d 519, 71 Cal. Rptr. 903 (1968); Huffman v. Lindquist, 37 Cal. 2d 465, 473-75, 234 P.2d 34 (1951). Because the court included language appropriate to an instruction on the "schools of thought" doctrine, the charge may have been confusing to lawyers, to whom "schools of thought" is a term of art. There is no reason, however, to believe that the jury suffered from any such linguistic preconceptions. Taken as a whole, the charge adequately conveyed to lay persons the principle that physicians may choose between alternative acceptable methods without incurring liability solely because that choice may have led to an unfortunate result. In the context of her attack on the charge as a "schools of thought" instruction, Wasfi contends that even the principle of acceptable alternatives requires, as a predicate, that the physician first make a "careful diagnosis." This contention assumes that there may be acceptable alternatives of treatment, but that only one correct method of diagnosis is possible. Thus, she argues that failure to order a CAT scan was a failure to diagnose and that carbogen therapy was an incorrect method of diagnosis, to which the schools of thought principle could not apply. We ean perceive no reasoned basis for recognizing a physician's latitude in selecting alternative acceptable methods of treatment, but denying him the same latitude in selecting alternative acceptable methods of diagnosis, or, in the words of the trial court, "diagnostic modalities." So long as a method is approved by the profession as a whole, or there is an unresolved conflict within the profession concerning the wisdom of the method, it matters not that the method is used for diagnosis rather than treatment. The "diagnostic modality" used by Riccio was to try carbogen therapy before, not after, a CAT scan. Riccio elicited testimony from Wasfi's expert, Gale Ramsby, chief of cardiovascular radiology at the University of Connecticut Health Center, that it would not be unusual for a physician to rule out a viral or vascular cause for hearing loss before ordering a CAT scan, or to recommend therapy and weigh its results before considering a CAT scan. Dirán Mikaelian, an otolaryngologist, another of Wasfi's experts, admitted that he had testified at his deposition that whether Riccio's conduct breached the standard of care was "a matter of opinion," although he insisted at trial that the CAT scan should be performed before prescribing carbogen therapy. Clarence Sasaki, chief of the department of otolaryngology at the Yale University School of Medicine, testified that while a CAT scan was recommended at some point, it might not be ordered at all if other preliminary therapy was successful. The testimony of these experts constituted sufficient evidence that Riccio's "diagnostic modality" was within the range of acceptable medical options so as to justify the court's charge. Wasfi contends that our holding will open a "Pandora's Box," shielding a defendant physician from liability every time experts differ concerning his choice of techniques. We disagree. After the plaintiff has presented a prima facie case, the defendant physician who claims that he employed one of several alternative methods accepted within his profession has no less a task than any defendant physician: to offer credible expert evidence that his conduct was accepted within the profession, and to persuade the jury to believe that evidence. It is true that an instruction on alternative acceptable methods may tempt jurors to decide that both sets of experts are right, instead of forcing them to make a difficult choice between opposing experts. The difficulties faced by lay jurors when evaluating expert evidence are, however, endemic to our system of trial by jury. We presume that the jury will abide by its duty to make a thoughtful, reasoned decision, applying its common sense and logic to the evidence presented. Cf. State v. Artis, 198 Conn. 617, 623, 503 A.2d 1181 (1986) (Healey, J., concurring). In this case, the jury would certainly have been justified in concluding that there was a difference of opinion within the profession regarding the timing of a CAT scan for a patient afflicted with a sudden unilateral hearing loss. We do not know, of course, whether the jury found that such a difference of opinion existed, or whether it simply believed Riccio's course of action was the only right course of action, since no special interrogatories were submitted to the jury. II In addition to the supposed "schools of thought" charge, Wasfi challenges all three instructions on intervening cause, even though the judge specifically told the jury to disregard the two earlier charges. Since those instructions were withdrawn we need consider only the final instruction, upon which the jury is presumed to have relied. State v. Cobb, 199 Conn. 322, 329, 507 A.2d 457 (1986); State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); Willametz v. Guida-Seibert Dairy Co., 157 Conn. 295, 301, 254 A.2d 473 (1968). That supplemental charge is set forth in the footnote. Wasfi first claims that the third charge invited the jury to consider the doctrine of intervening cause as a basis for excusing Riccio from liability for his negligence when it was unquestionably inapplicable to him. Because Wasfi never consulted Riccio until eighteen months after the CAT scan performed in May, 1981, it is clear that Chaddha's alleged negligence in interpreting the CAT scan could not constitute an intervening force that would attenuate the causal relationship between any negligence on the part of Riccio and any harm therefrom suffered by Wasfi. "An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed." (Emphasis added.) 2 Restatement (Second), Torts § 441 (1). We disagree with Wasfi, however, that the portion of the third charge cited in support of her claim should be construed as making any negligence of Chaddha a ground for a verdict in favor of Riccio. The jury was told that "[rjather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence." (Emphasis added.) While not a model of clarity, this statement may reasonably be viewed as indicating that Riccio could "only escape" liability for his negligence if the consequences thereof were not reasonably foreseeable, regardless of any negligence on the part of Chaddha. The last sentence of the charge, stating that Riccio's negligence "would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff," (emphasis added) was obviously jumbled, but it certainly does not refer to Chaddha or imply that Chaddha's negligence could be a basis for excusing Riccio. This incomprehensible last sentence was not called to the attention of the court by anyone, nor did any party except to the third charge on the ground that it made Chaddha's negligence a basis for excusing Riccio from liability. Such an exception had been voiced after the first charge, which abstractly posed the intervening cause issue of "whether physician A's negligence was an intervening cause between physician B's negligence and the resulting harm or vice versa; and thus determine whether one or the other of the physicians would be relieved from liability for his acts." (Emphasis added.) The second charge, which was in accordance with Wasfi's request, made no reference that could possibly be construed to suggest that Chaddha's negligence could excuse Riccio, nor was any exception taken in that regard. Evidently the parties did not believe that such a basis for finding Riccio not to be liable was implicit in the third charge, because no such exception was taken. The failure of a party to except specifically to a defect in the charge, of course, precludes reliance upon it as a basis for reversal. Practice Book § 315. Wasfi's request to charge, which referred to circumstances under which Chaddha would be liable for the consequences of Riccio's possible negligence, cannot be deemed to have preserved this issue for review, because the request, if given, would not have cured the defect now claimed in the charge, and was otherwise flawed. Accordingly, we reject Wasfi's claim that the jury was sufficiently misled by the charge to find in favor of Riccio on the ground that Chaddha's negligence was an intervening cause. Wasfi also claims that the third charge was defective because its references to reasonable foreseeability as a limitation upon liability for a negligent act were erroneous. At trial she excepted "again to the language dealing with foreseeability," having raised a similar objection to the first charge. The focus of Wasfi's criticism of the references to foreseeability is not that such a concept is wholly irrelevant to the causal relationship between a negligent act and the harm flowing therefrom for which a defendant may be held responsible, but that the wording of the charge implied that the "precise damages" or "particular injury" suffered by Wasfi had to be reasonably foreseeable. Reviewing the third charge as a whole, as we must; Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1976); we are not persuaded that it conveyed to the jury the impression that either defendant should be excused from liability for his negligence simply if he could not reasonably have foreseen the precise nature or extent of the harmful consequences that actually were suffered by Wasfi. In this charge the jury was told that "a defendant is not liable if the plaintiffs harm was caused by an independent source which intervenes between that defendant's negligence and the plaintiff's resulting condition and produces a result which was not reasonably foreseeable by the defendant. The test then is whether the harm which occurred was the same general nature as the foreseeable risk created or increased by the physician's negligence." (Emphasis added.) The court instructed more specifically that, "if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his failure to skillfully diagnose the acoustic neuroma . . . neither physician would escape legal responsibility for those injuries or harm." (Emphasis added.) Wasfi, in excepting to "the language dealing with foreseeability" in the third charge, also claimed "that the error that was made [in the first charge] on the subject matter is one that cannot and has not been corrected." We disagree. The first charge at some points had phrased the foreseeability element of proximate cause in terms of producing "a result which was not reasonably foreseeable" and foreseeing "the condition or conditions that Mrs. Wasfi claims to have suffered," and an appropriate exception was taken. We are convinced that the third charge did not contain these infirmities and sufficiently stated the test we have used for determining proximate cause, "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); see Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982). Another claim of error in the jury instructions is that the withdrawal of the second charge, which virtually adopted Wasfi's request verbatim, deprived her of a charge on the principle that a defendant whose negligence is a substantial factor in producing an injury is liable "for damages caused by the negligence of a doctor in treating the injury which the tort-feasor caused, provided the injured party used reasonable care in selecting the doctor." Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 596, 356 A.2d 873 (1975). The evidence in this case, however, provided no basis for applying this principle, because it is undisputed that Wasfi never followed the course of treatment recommended by Riccio and her condition was not made worse as a result of her contact with him. The court properly withdrew this charge because it was inapplicable to the evidence and would only have confused the jury on the issue of intervening cause, which the court purported to address. Furthermore, we must infer from the verdict in favor of Riccio, in which we have found no flaw, that the jury found that he had committed no wrongful act that resulted in any harm to Wasfi. Even if this request of the plaintiff were appropriate, therefore, its omission would have been a harmless error. Wasfi's final claim is that the third charge did not contain language to indicate that, for an intervening force to excuse a person from being liable for harm that his negligence would other-wise be deemed a substantial factor in producing, it must entirely supersede the operation of the antecedent negligence. The third charge included the instruction that "a defendant is not liable if the plaintiff's harm was caused by an independent source which intervenes between that defendant's negligence and the plaintiff's resulting condition and produces a result which was not reasonably foreseeable by the defendant." We agree that this charge was deficient in failing to inform the jury that the "independent source" must be of such great causal significance as to attenuate the effect of the prior negligence to the extent that it can no longer be regarded as a substantial factor in producing the harm involved. See Kiniry v. Danbury Hospital, 183 Conn. 448, 455-56 n.2, 439 A.2d 408 (1981); D'Arcy v. Shugrue, 5 Conn. App. 12, 24-25, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985); 2 Restatement (Second), Torts § 441-453. This deficiency, however, was never mentioned in any of the exceptions taken to the third charge as required. Furthermore, since this aspect of the charge concerned only whether Chaddha's negligence had been superseded by that of Riccio, whom the jury verdict has necessarily exonerated, the omission relied on by Wasfi would constitute a harmless error. Unless Riccio were a wrongdoer who had proximately caused harm to Wasfi, his actions could not have been an intervening cause in any event. Corey v. Phillips, 126 Conn. 246, 255, 10 A.2d 370 (1939); D'Arcy v. Shugrue, supra; see W. Prosser & W. Keeton, The Law of Torts (5th Ed. 1984) § 44. The judgment is affirmed. In this opinion the other justices concurred. The other plaintiff in this case was Carrie Wasfi's husband, Amr. He sought damages for loss of consortium based upon the same facts alleged by his wife. Throughout this opinion, the name "Wasfi" refers to Carrie Wasfi. An"acoustic neuroma" is "a progressively enlarging, benign tumor within the auditory canal arising from the eighth cranial (acoustic) nerve." R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 496. A "CAT scan" or computerized axial tomography (sometimes referred to as a "CT scan") is defined as "the gathering of anatomical information from a cross-sectional plane of the body, presented as an image generated by a computer synthesis of x-ray transmission data obtained in many different directions through the given plane"; Stedman's Medical Dictionary (24th Ed.) p. 1459; in other words, an X ray that shows more than just bones. An otolaryngologist is a physician specializing in "that branch of medicine concerned with medical and surgical treatment of the head and neck, including the ears, nose and throat." R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 520. Wasfi also brought suit against her family physician, Joseph Sciarrillo, and against St. Vincent's Medical Center, on account of its alleged agency relationship with Chaddha. She withdrew her complaint against Sciarrillo before trial and the court directed judgment for St. Vincent's. She has not appealed from the directed judgment. "Hemiparesis" is defined as "muscular weakness or partial paralysis affecting one side of the body"; R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 333; or "slight paralysis affecting one side only." Stedman's Medical Dictionary (24th Ed.) p. 631. Thus, before giving the disputed instruction, the trial court charged the jury on the standard of care in medical malpractice cases: "Now medical malpractice can be defined simply as the unskillful treatment by a physician, and in consequence a person is injured. Physicians are liable for professional negligence if they fail to exercise that degree—that degree of skill, care and diligence ordinarily had and exercised by physicians engaged in the same line of practice at the time of the act or omission in question. Of course, in this case, the lines of practice we are concerned with are radiology with respect to Dr. Chaddha and otolaryngology or ear, nose and throat specialist with respect to Dr. Riccio. "[I]t was the duty of the defendant physicians to exercise reasonable care, skill and diligence—with emphasis on the word reasonable—in diagnosing the illness with which Mrs. Wasfi was afflicted while a patient under their professional care. That duty was fulfilled if each of the defendants exercised that degree of care, skill, and diligence which such medical specialists ordinarily had and exercised in such cases at that time. "The standard of care is not concerned with what may be the ideal care and treatment in a particular case, but rather the law requires only that an ordinary degree of skill, care and diligence be exercised or given commensurate with that had and exercised in the specialty in which the physician in question practices. As you can see, whether we're talking about Dr. Chaddha today or Dr. Riccio, it is not the result that is important in determining whether or not the physician was negligent. It is the physician's conduct as it relates to the standard of care which is the subject of your examination. "In this case, there has been expert testimony regarding both the standard of care regarding CAT—of reading CAT scans in connection with the diagnosis of tumors and in particular the diagnosis of acoustic neuromas by radiologists in 1981. There has also been expert testimony regarding clinical diagnosis and care by otolaryngologists of patients presenting symptoms such as those presented by Mrs. Wasfi in October of 1982. "However, although you may rely on the experts to tell you what the proper standards are in this case, it is still up to you, using that standard as a guide, to measure and determine what the facts are. You the jury must determine from all of the conflicting evidence and opinions whether or not this—in this case Dr. Chaddha or Dr. Riccio or both of them as the case may be failed to comply with or measure up to the appropriate standard of care; and if you find that either or both of them deviated from that standard of care, then you must determine whether or not that deviation was a proximate cause of Carrie Wasfi's injuries, disabilities and losses." The charge in some places uses the terms "treatment" and "diagnosis" interchangeably. The evidence indicated that carbogen therapy is a practical method of removing the symptom of hearing loss. There are many causes of hearing loss, not all of them known. If hearing loss was originally caused by, for example, a temporary condition no longer present, such as a virus, the carbogen therapy may eliminate the hearing loss by opening blocked aural passages. If the hearing loss is caused by a more permanent or serious condition, carbogen therapy cannot eliminate it. Thus, as to temporary conditions, carbogen therapy may be a system of "treatment"; as to more serious, permanent conditions, carbogen therapy serves as a diagnostic tool by screening out other causes of the hearing loss. Riccio made a tentative diagnosis that Wasfi's hearing loss was originally caused by a virus or resulted from her diabetes. He prescribed carbogen therapy (1) to treat the symptom and (2) to diagnose the cause. He did not claim to have used the therapy to treat the cause itself, in this case, the acoustic neuroma. Without such latitude, physicians may resort to "defensive medicine" such as unnecessary and sometimes hazardous testing (e.g., excessive numbers of X rays). See 3 F. Harper, F. James & O. Grey, Torts § 17.3 n.6; note, "Rethinking Medical Malpractice Law in Light of Medicare Cost-Cutting," 98 Harv. L. Rev. 1004, 1012-13 (1985). "The law of intervening cause is this: One whose negligence in the first instance creates or increases the risk of harm is not relieved from responsibility for such harm by the fact that someone else contributes to that harm by another act of negligence so long as the resulting harm suffered was reasonably foreseeable by the defendant. On the other hand, a defendant is not liable if the plaintiff's harm was caused by an independent source which intervenes between that defendant's negligence and the plaintiff's resulting condition and produces a result which was not reasonably foreseeable by the defendant. The test then is whether the harm which occurred was [of] the same general nature as the foreseeable risk created or increased by the physician's negligence. "Therefore, if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his failure to skillfully diagnose the acoustic neuroma and you also find that Dr. Riccio could in 1982 similarly foresee that Mrs. Wasfi was likely to suffer similar consequences that she did in fact suffer as a result of his professional negligence, then neither physician would escape legal responsibility for those injuries or harm. Rather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence. Consequently, Dr. Riccio's negligence would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff." Wasfi cites the last two sentences of the third charge. "Rather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence. Consequently, Dr. Riccio's negligence would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff." Wasfi's request to charge was as follows: "Negligence of Medical Provider as Intervening Cause "Under our law, a tortfeasor, or someone who has negligently caused injury to another, cannot escape liability for the consequences of his action, even if the injured party obtains medical care and treatment that worsens, rather than improves, her condition. If the defendant's negligence is a substantial factor, or proximate cause, in producing the plaintiffs injuries, then it matters not that a physician who treats these injuries failed to use appropriate skill and medical care. The injured plaintiff who has exercised reasonable care in the selection of a physician is not responsible for his unskillful treatment of the case, but may recover from him who is responsible for his primary injury, the damages caused through an aggravation, or failure to provide proper treatment for, the underlying injury by the treating doctor. Thus, under the circumstances of this case, should you find that Dr. Chaddha caused injury to Carrie Wasfi by reason of his negligent failure to diagnose her acoustic neuroma, and should you find that Carrie Wasfi exercised reasonable care in her selection of Dr. Riccio to treat the hearing loss that developed as the result of growth of the undiagnosed tumor, Dr. Chaddha will be responsible for all injuries caused to Carrie Wasfi as the result of his negligence in interpreting the CT scan of May 22, 1981, even though Dr. Riccio may have failed to act properly in his diagnosis or treatment of the patient. Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 596 [356 A.2d 873 (1975)]; Wright v. Blakeslee, 102 Conn. 162, 167-168 [128 A. 113 (1925)]." The second charge, which conformed to this request, was not withdrawn until after the jury asked for a "rereading" of the intervening cause part of the charge. Chaddha's attorney had objected to this charge, pointing out that it never defined "what an intervening act is or how an intervening act of someone else might supersede the negligence of someone who was first in line." We agree that this request, as well as the charge based thereon, did not adequately explain the circumstances under which the possible negligence of Riccio might supersede that of Chaddha, because the element of foreseeability as a limitation on Chaddha's liability was entirely omitted. Practice Book § 315 provides as follows: "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." Our conclusion that the third charge did not suggest to the jury that Chaddha's negligence, if any, might be an intervening cause such as to excuse Riccio from liability does not obviate the need to discuss the claim relating to foreseeability. The charge made foreseeability a limitation on the causal relationship between the possible negligence of each physican and the harm sustained by the plaintiff, apart from the issue of intervening cause. See footnote 12, supra. The trial court prefaced its second charge with the folio-wing remarks: "Ladies and gentlemen, it's been brought to my attention by the attorneys that one of the charges that I gave to you was somewhat long and somewhat confusing. So I'm going to recharge you on the subject and the subject that we were talking about was intervening cause. Now I want you to disregard all that I said about intervening cause and the law of intervening cause and I want you to follow the law as I give it to you now." In Kiniry v. Danbury Hospital, 183 Conn. 448, 455-56 n.2, 439 A.2d 408 (1981), this court implicitly approved a charge on intervening cause in a physician malpractice case as follows: " 'Therefore, even though you might find that the defendant, Dr. [F], was negligent in one or more of the particulars alleged in the complaint, if you find that Dr. [F]'s negligence ceased to be a substantial factor in producing Mr. [K]'s death and that the negligence of Dr. [M] had so superceded that of Dr. [F], that Dr. [M], without the negligence of Dr. [F] contributing to any material degree, was the real cause for Mr. [K]'s death, then the negligence of Dr. [F] would not be a proximate cause of Mr. [K]'s death, if you find Dr. [F] was negligent, and the defendant, Dr. [F], would not be liable to the plaintiff.' "

Longo, J. The defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and unlawfully carrying a weapon in a vehicle in violation of General Statutes § 29-38. Upon trial to a jury he was acquitted of the former charge and convicted of the latter, whereupon he was sentenced to the Connecticut correctional institution at Somers for a term of not less than two nor more than five years. The defendant has appealed from his conviction, arguing that his original detention by the police was unlawful, that the gun found upon his person was unlawfully obtained, that the charge to the jury was unconstitutional, that the court's refusal to set aside his conviction on the second count was against the law and the evidence, and that certain facts were impermissibly considered in sentencing the defendant. The defendant's prosecution arose out of events occurring in the early hours of June 20, 1972. At approximately 1 a.m. Freddie McCloud, who shared an apartment at 14 Judson Street with the defendant, was awakened by a gunshot. Upon entering the defendant's bedroom he found the defendant sitting on his bed and the defendant's wife sitting in a chair with blood flowing from her arm. McCloud called the Hartford police department to report the shooting. Officers Robert Kardys and Charles E. Schofield were dispatched in their cruiser to 14 Judson Street to investigate an aggravated assault involving a gun. Upon arrival at the address the officers saw a vehicle containing a man, later identified to be Claude Rice, about to leave the driveway. Officer Kardys stepped in front of the car and, in an attempt to preserve the "scene" as it had been, advised the driver to stay where he had stopped, while Officer Schofield ran inside to administer first aid to the defendant's wife. Shortly thereafter, a backup cruiser containing Officers Fred T. Pepin and Paul Vanderheiden arrived and Officer Kardys told them to keep the car where it had stopped. Officer Kardys then joined Officer Scho field inside the apartment where he was told by the defendant's wife that the defendant had shot her, that he had a gun in his possession, and that he was leaving the premises in a car. Officer Kardys immediately shouted out the window to the other officers to be careful because the man in the car was responsible for the shooting and was armed. The officers also learned by radio that the man who had done the shooting was named Claude Rice. The man in the vehicle identified himself as Claude Rice, at which point he was told that he was under arrest and was requested to step out of the ear. A search of the defendant then produced a loaded pistol. The defendant first assigns as error the court's conclusion that he was lawfully detained by the police while leaving his driveway in his car. We agree with the trial court that the initial stop of Rice's vehicle was lawful. The defendant's person is protected from unreasonable searches and seizures by the fourth amendment made applicable to state action by the fourteenth amendment. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930; Ker v. California, 374 U.S. 23, 30, 83 S. Ct. 1623, 10 L. Ed. 2d 726. Article first, § 7, of our state constitution provides the same protection. State v. Watson, 165 Conn. 577, 584, 345 A.2d 532. In recent years the courts have explicitly recognized that the police have the power to detain individuals on grounds of less than probable cause to arrest. This detention constitutes a seizure of the person, the lawfulness of which must be measured against the fourth amendment's guarantee of freedom from "unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612; State v. Watson, supra. As we stated in State v. Watson, supra, 584: "Effective crime prevention and detection underlie the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. . . . An officer must act on more than a mere hunch. These facts upon which the stop is predicated and the suspicion which they arouse, in addition to forming the basis for a lawful stop, limit the scope of the officer's initial actions following the stop. Carpenter v. Sigler, 419 F.2d 169, 171 (8th Cir.); see Terry v. Ohio,. . . [392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889]. The results of the initial stop may arouse further suspicion or may dispel the questions in the officer's mind. If the latter is the ease, the stop may go no further and the detained individual must he free to go. If, on the contrary, the officer's suspicions are confirmed or are further aroused, the stop may he prolonged and the scope enlarged as required by the circumstances." We are mindful that the facts surrounding the stop of Claude Rice are distinguishable from those of most cases which have reached appellate courts. The defendant, unlike the defendants in State v. Watson, supra, and Terry v. Ohio, supra, had not been observed by a police officer in a course of patently suspicious behavior before the stop. Likewise, he had not been singled out by an informant, as had the defendant in Adams v. Williams, supra. There were, however, other significant factors which lead us to the conclusion that the initial stop of the defendant was reasonable. Officers Kardys and Schofield were responding to a call involving a serious crime. They knew from the radio dispatch that a gun was involved. They arrived at the scene in the early hours of the morning, when few people are on the streets, to find a car departing from the driveway of the building in which they had been informed that the alleged crime had taken place. Officers Kardys and Schofield merely asked the defendant to remain where he was. They did not ask him to step from his vehicle nor did they conduct any search of his person. The intrusion was minimal and was, therefore, justified by the surrounding circumstances and by the gravity of the alleged crime under investigation. As was stated in Adams v. Williams, supra, 146, "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Officers Kardys and Schofield did nothing more than maintain the status quo for a very brief period so that they might determine whether the stop of the defendant should be prolonged and its scope expanded to include arrest and search or whether he should be allowed to proceed. The stop lasted only a matter of moments before Officer Kardys shouted out the window that the detainee was involved in the shooting and that he was armed. The defendant does not dispute that probable cause for his arrest and search then existed. To hold that Officers Kardys and Schofield were not entitled momentarily to freeze the situation while they obtained more information would be to shackle our frontline law enforcement officials in a way never contemplated by our constitutions. Because the stop of the defendant was lawful and because the gun was discovered in the course of a search incident to an arrest for which there was undeniably probable cause, we find the defendant's objection to the admission into evidence of the gun and cartridges without merit. The defendant also assigns as error the trial court's refusal to set aside the verdict of guilty on the charge of unlawfully carrying a weapon in a vehicle, in violation of General Statutes § 29-38. The defendant first argues that he did not knowingly have possession of the gun. He basically argues that after the shooting he was in a state of shock and that when he got into his car he could not have been consciously aware that he still had the gun. The defendant's scienter is an issue peculiarly within the province of the jury to resolve from the evidence presented to them and from their observation of courtroom testimony. We will not disturb their conclusion on appeal. The defendant makes a more serious argument challenging the conviction under General Statutes § 29-38 when he raises the issue of the constitutionality of the court's charge to the jury. The court charged in part as follows: "The statute also states that the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant of the vehicle. Now, prima facie means evidence which if unexplained or uncontradicted is sufficient in a jury case to carry the case to the jury and to sustain a verdict in favor on that issue. That is, it is evidence which indicates to a reasonable person such a strong possibility of guilt that an explanation is reasonably called for." The defendant failed to object to this charge and raises his challenges for the first time on appeal. As we stated in State v. Evans, 165 Conn. 61, 67, 327 A.2d 576: "We have repeatedly reiterated that this court will not consider claimed errors on the part of the trial court unless there has been a compliance with the provisions of § 652 of the Practice Book. See State v. Hawkins, 162 Conn. 514, 517, 294 A.2d 584; Weyls v. Zoning Board of Appeals, 161 Conn. 516, 521, 290 A.2d 350." In State v. Evans, supra, however, we recognized two exceptions to the rule. The first exception may occur in cases such as in State v. Vars, 154 Conn. 255, 224 A.2d 744, where we agreed to consider the applicability of a new constitutional right not readily foreseeable which had arisen between the time of trial and appeal. The second exceptional circumstance may occur "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. We believe that this case falls within the second exception. The defendant claims that the jury were charged to the effect that the defendant carried the burden of proof in establishing that he did not knowingly possess the gun and that he was, therefore, required to prove his innocence in violation of the fourteenth amendment to the United States Constitution. United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210; Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 519; State v. Watson, supra, 597. If, in fact, the defend ant were forced to assume that burden, and if there were no additional evidence from which the jury-might infer knowing possession of the gun, the defendant would have been denied a fundamental constitutional right and a fair trial. State v. Watson, supra. He should not, therefore, be precluded from asserting his constitutional claim on appeal. In considering the defendant's claim under State v. Watson, supra, however, we find a distinction which takes this case from under the Watson rule and ultimately proves fatal to the defendant's case. In State v. Watson, the gun, of which the defendants were charged with possession, was found under the front seat. In the present case the officers discovered the gun on the defendant's person. In State v. Watson, supra, 596, we said: "Imputing knowledge of the presence of a weapon in a vehicle to an occupant without proof of any other relevant circumstance would be based on pure speculation and could not meet the standards reiterated in Leary v. United States, . . . [395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57]." We hold that in this case another crucially relevant circumstance existed in that the gun was found on the defendant's person, a fact which would impress itself upon a reasonable jury and ensure that the conviction was not based on speculation. See State v. Castagna, 170 Conn. 80, 93-94, 364 A.2d 200. The defendant also assigns as error the length of the sentence imposed upon the defendant by the court. The defendant urges this court to set aside the sentence on the ground that the trial judge sentenced the defendant in the belief that the acquittal on the shooting charge was improper. The defendant was sentenced to not less than two and not more than five years in the state correctional institution. General Statutes § 29-38 authorizes a sentence not to exceed five years. We have frequently stated that the trial judge has broad discretion in sentencing and " [w] e have repeatedly held that a claim of this character is simply an appeal for clemency made to a court which has no discretionary jurisdiction in the matter." State v. Mendill, 141 Conn. 360, 363, 106 A.2d 178; State v. LaPorta, 140 Conn. 610, 612, 102 A.2d 885. Finally, the defendant raises the argument that he elected a trial on the charges of assault in the first degree and unlawfully carrying a weapon in a motor vehicle in order to prove his innocence of the assault charge, for which he was found not guilty. The defendant contends that the court should have imposed a lesser sentence than that imposed, since the state, in the event of guilty pleas, was prepared to recommend a nolle on the assault charge and a suspended sentence on the weapon charge. The defendant, in effect, claims that he was penalized for standing trial. We find no merit to this claim. An essential ingredient in any plea bargaining situation is the recognition by both the prosecution and the defense that a trial may produce a less favorable result for the defendant. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 29-38. weapons in vehicles. Any person who knowingly has, in any vehicle owned, operated or occupied by him any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof." We stated in State v. Watson, 165 Conn. 577, 597, 345 A.2d 532: "The prima facie provision of § 29-38 had the inevitable eifect of placing on the alleged violator the burden of proving his innocence. The provision 'and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of the section by the owner, operator and each occupant thereof' constitutes a denial of due process of law as protected by the fourteenth amendment and is therefore invalid."

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

The named defendant's motion to stay the proceedings of summary process in the Court of Common Pleas and to vacate any orders entered by that court until final determination by the Supreme Court in the appeal from the Superior Court in Hartford County is dismissed.

House, C. J. These appeals have been consolidated for presentation to this court because they present identical basic facts and identical questions of law. Pursuant to a stipulation approved by the trial court, it has been agreed that any judgments in the cases against the defendants shall be fully binding on their successors in office without the necessity for substitutions of parties defendant owing to a change in the personnel occupying those offices. The cases were brought seeking (1) a declaratory judgment that the system of financing public elementary and secondary education in this state, at least as it affects the town of Canton, violates the Connecticut and the United States constitutions; (2) an order in equity directing the defendants to cease implementing the present financing system, at least as it affects the town of Canton, except as necessary to provide an orderly transition to a constitutional system for financing public schools; (3) an order that the court retain jurisdiction to assure a transition with all deliberate speed to a constitutional system of financing public education; and (4) any other equitable relief the court should deem proper. In essence, each action sought by declaratory judgment a judicial determination as to whether the Connecticut educational finance system, at least as it existed at the time of trial (1974), violates constitutional equal rights and equal protection guarantees and is constitutionally mandated "appropriate legislation"; Conn. Const. Art. VIII § 1; to provide free public elementary and secondary schools in the state. The questions presented are not only of great importance but of considerable complexity, and it is of small comfort to note that members of the judiciary throughout the country are also being faced with the same or similar complex questions. It is not inappropriate at the start of our consideration of the appeals to express a word of appreciation and commendation for the carefully prepared and helpful briefs submitted by counsel for the parties and by the amici curiae, and for the thorough and exhaustive record submitted by the trial court. In order to facilitate an understanding of the plaintiffs' claims, it is virtually essential to have at hand the sections of the relevant statutes and provisions of the state and federal constitutions on which the plaintiffs rely. They are set out in footnotes 2-9. When the present actions were brought in 1974, the plaintiff Horton was enrolled in kindergarten in the Canton Elementary School, the plaintiff Barnhart in the sixth grade of the Canton Middle School, and the plaintiff G-race in the seventh grade in the Canton High School. The defendants included the governor, the treasurer and the comptroller of the state, the state commissioner of education, and the members of the state board of education, of the Canton board of education, and of the Canton board of finance. The portions of the judgments of the Superior Court material to these appeals declared that the present system of financing public education in Connecticut, principally embodied in § 10-240 and 10-241 of the G-eneral Statutes, insofar as the system purports to delegate to the town of Canton the duty of raising taxes to operate free public elementary and secondary schools and insofar as it purports to delegate to Canton the duty of operating and maintaining free public elementary and secondary schools violates the constitution of Connecticut, article first, § 1 and 20, and article eighth, § 1; declared that the present system of financing public education in Connecticut does not violate the fourteenth amendment to the constitution of the United States; held that the doctrine of sovereign immunity is not a valid defense to this action; and withheld any ruling on the plaintiffs' ancillary claims for relief and retained jurisdiction until further orders. The defendant state officials, hereinafter the defendants, appealed from the judgments and the plaintiffs cross appealed from the judgments insofar as they declared that the present system of financing public education in the state does not violate the fourteenth amendment to the constitution of the United States. On their appeal, the defendants have pressed five assignments of error that relate to the trial court's findings, conclusions, and rulings on claims of law. The first two assignments of error pertain to the trial court's findings concerning the quality of edu cation in Canton and the relation between expenditures and the quality of education. They also pertain to the court's findings relevant to the effect of the existing system of financing education in the state, which system relies heavily on local property taxes and leads to a difference in revenue available to different towns for support of the public schools. The third assignment of error is addressed to the conclusions which were reached by the court as a result of its findings of fact and which led to the ultimate conclusion expressed in its judgment— "that the present system of financing public education in Connecticut, principally embodied in § 10-240 and 10-241 of the General Statutes, insofar as the system purports to delegate to Canton the duty of raising taxes to operate free public elementary and secondary schools and insofar as it purports to delegate to Canton the duty of operating and maintaining free public elementary and secondary schools violates article first, § 1 and 20, and article eighth, § 1, of the Connecticut Constitution." The defendants' fourth assignment of error is that the trial court erred in failing to conclude that only two statutory sections, namely § 10-240 and 10-241, which provide the system for financing education, are unconstitutional. The fifth assignment claims that the trial court erred in overruling the defendants' claims of law which are substantially similar in subject but opposite in result to the conclusions of law claimed as error in the third assignment. Before turning to a consideration of the assignments of error addressed to the merits of the appeal, we turn first to the question of the jurisdiction of the trial court to act in these cases. This issue was raised by the defendants' pleas of sovereign immunity which the trial court concluded were not valid defenses to these actions. In Connecticut, we have long recognized the validity of the common-law principle that the state cannot he sued without its consent and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state. Textron, Inc. v. Wood, 167 Conn. 334, 339, 355 A.2d 307; Fidelity Bank v. State, 166 Conn. 251, 253, 348 A.2d 633; Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290; State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028. This rule had its origin in the ancient common law, predicated on the principle that the king, being the fountainhead of justice, could not he sued in his own courts. 1 Pollack & Maitland, History of English Law (2d Ed.) pp. 514-18. While the principle of sovereign immunity is deeply rooted in our common law, it has, nevertheless, been modified and adapted to the American concept of constitutional government where the source of governmental power and authority is not vested by divine right in a ruler hut rests in the people themselves who have adopted constitutions creating governments with defined and limited powers and courts to interpret these basic laws. The source of the sovereign power of the state is now the constitution which created it, and it is now recognized that, as Mr. Justice Holmes wrote: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, hut on the logical and practical ground that there can he no legal right as against the authority that makes the law on which the right depends." Kawa nanakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834; see Bergner v. State, 144 Conn. 282, 285, 130 A.2d 293. The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard "that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." Block, "Suits against Gl-overnment Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1061. As the author of that article makes clear, adherence to the doctrine of sovereign immunity does not mean that all suits against government officers, since they are in effect suits against the government, must be barred. As he suggests (p. 1080): "In those cases in which it is alleged that the defendant officer is proceeding under an unconstitutional statute or in excess of his statutory authority, the interest in the protection of the plaintiff's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. Moreover, the government cannot justifiably claim interference with its functions when the acts complained of are unconstitutional or unauthorized by statute. On the other hand, where no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction." This court expressly approved this principle in Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642, which was an action against a state commission which was alleged to have taken prop erty without constitutional or statutory authority. While noting (p. 306) that "this suit is clearly one against the state," the court held that it was not barred by the defense of sovereign immunity, stating (p. 307): "It does not necessarily follow, however, that every action in which state officials or members of state agencies are named defendants and designated by official titles should be treated as an action against the state such as to clothe the defendants with immunity from suit. Sovereign immunity does not protect state officials from suits to recover property taken or held in violation of the constitution or without statutory authority, even though the property is held in the name of the state of Connecticut. . . . State officials cannot therefore shield themselves with sovereign immunity if a party alleges and proves that they took or retained his real property in a manner which was either unconstitutional or unauthorized by statute." Recognizing the distinction between sovereign immunity from suit and sovereign immunity from liability; see Bergner v. State, supra; and the judicial duty under a constitutional government such as ours to decide a justiciable controversy as to the constitutionality of a legislative enactment; Szarwak v. Warden, 167 Conn. 10, 27, 355 A.2d 49; Marburg v. Madison, 5 U.S. (1 Cranch) 137,177-78, 2 L. Ed. 60; we have many times in the past considered the merits of appeals from judgments in declaratory judgment actions when state officials have been parties. See Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (concerning the constitutionality of the no fault automobile insurance act); Lublin v. Brown, 168 Conn. 212, 362 A2d 769 (concerning the constitutionality of the occupational tax levied on attorneys); Thibeault v. White, 168 Conn. 112, 358 A.2d 358 (concerning the interpretation of a public assistance statute); Textron, Inc. v. Wood, 167 Conn. 334, 355 A.2d 307 (concerning the constitutional taking of property); Bridgeport v. Agostinelli, 163 Conn. 537, 316 A.2d 371 (concerning the rights of cities and towns to proportionate shares of legislative appropriations for educational purposes) ; Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 291 A.2d 721 (concerning the respective powers of two state regulatory commissions); Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49 (concerning the constitutionality of an act providing for the administration of the Probate Court system); Knights of Columbus Council No. 3884 v. Mulcahy, 154 Conn. 583, 227 A.2d 413 (concerning the constitutionality of a statute regarding the playing of bingo); Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 217 A.2d 698 (concerning the constitutionality of an act regarding the establishment of rates of insurance); Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 61 A.2d 89 (concerning the validity and construction of the 1935 corporation business tax); Lyman v. Adorno, 133 Conn. 511, 52 A.2d 702 (concerning the constitutionality of a bonus to veterans). The declaratory judgment procedure in Connecticut as provided by § 52-29 of the General Statutes and § 307—313 of the Practice Book is peculiarly well adapted to the judicial determination of controversies concerning constitutional rights and, as in these cases, the constitutionality of state legislative or executive action. As we have observed, "[t]he statute authorizing the Superior Court to render declaratory judgments is as broad as it well could be made." Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891. It antedated the Uniform Declaratory Judgments Act, it is broader in scope than that act and the statutes in most, if not all, other jurisdictions; Spector Motor Service, Inc. v. Walsh, supra; and "[w]e have consistently construed our statute and the rules under it in a liberal spirit, in the belief that they serve a sound social purpose." Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 409, 51 A.2d 907. While the declaratory judgment procedure may not be utilized merely to secure advice on the law; Tellier v. Zarnowski, 157 Conn. 370, 373, 254 A.2d 568; or to establish abstract principles of law; Norwalk Teachers' Assn. v. Board of Education, 138 Conn. 269, 272, 83 A.2d 482; or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights; Gannon v. Sanders, 157 Conn. 1, 9, 244 A.2d 397; it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof. Practice Book § 309. The procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances. In a case such as the present one, this circumstance is of special importance because the court, mindful of the proper limitations on judicial intervention, the problems inherent in the complexities of school financing and the presumption that the other departments of our government will accede to this court's interpretation of the state constitution, may prop erly delay specific direction, affording time for corrective action and avoiding any "serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." Block, "Suits against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1061. We conclude that the trial court was not in error in holding that sovereign immunity was not an available defense to the present actions. A holding to the contrary would foreclose proper judicial determination of a significant and substantial constitutional question the determination of which is manifestly in the public interest. We turn now to the assignments of error addressed to the court's finding of facts. The finding consists of a total of 169 paragraphs of which 142 paragraphs are findings of fact. In addition, 37 exhibits are expressly incorporated into and made part of the finding. Although the defendants have assigned error in the court's refusal to find certain facts and in its finding certain others without evidence to support them, the plaintiffs' meticulously briefed support for the finding discloses that it is not subject to any material correction. Without attempting to recite in detail the lengthy finding of facts, we note certain findings which are of special significance. The public schools in Canton, like those of all other towns in the state, are financed primarily by two means: funds raised by the town by assessment on property within the town and funds distributed by the state pursuant to legislation providing for a flat grant depending on the average number of pupils attending school daily. This grant is usually referred to as the ADM (average daily membership) grant. General Stat utes § 10-262. The ADM grant paid during 1973-74 was $215 per pupil and has since been increased to $250 per pupil. It has been the principal source of the state's contribution to local public school education for about three decades though, by statute, the state provides for various other grant payments to each town or district for public and nonpublic school programs and activities. These include grants for exceptional and handicapped students, General Statutes § 10-76a—10-76g; for school construction, § 10-286; and for student transportation, § 10-266, 10-273a and 10-277. In Connecticut, the percentage contribution of the local, state, and federal governments has been approximately 70 percent local, 20 to 25 percent state, and 5 percent or less federal. This contrasts with the average figures nationally of 51 percent local, 41 percent state, and 8 percent federal. Financing Connecticut's Schools, Final Report of the Commission to Study School Finance and Equal Educational Opportunity, p. 1. Funds raised by local governments for local public school education come principally from one source—the local property tax. For the year 1972-73, 80.1 percent of the state aid for local public school operating expenses was distributed as a flat grant that was not based upon the ability of the towns to finance education, 12.6 percent came from the reimbursement grant for special education, and 7.3 percent came from twelve miscellaneous grants, none of which was distributed on the basis of a town's ability to finance education. The total average statewide per pupil expenditure as reported by the state board of education for the year 1972-73 was $1091. The comparable figure reported by the Connecticut Public Expendi ture Council was $1054.70. The discrepancy is attributable to the inclusion of tuition paid to nonpublic schools for children requiring special education and the transportation payments by the state board of education. Because local property taxes are the principal source of revenue for local public schools, a significant measure of the ability of the various towns to finance local education is the dollar amount of taxable property per pupil in each town which can be figured by dividing, the grand list of a town by the number of pupils. For the 1972-73 school year, wide disparities existed in the effective yield per pupil ranging from approximately $20,000 per pupil to approximately $170,000 per pupil. During that year, the state average was $53,639. In Canton, it was $38,415. The general tax effort of a town may be measured by determining the net mill rate. Sample net mill rates for the school year 1972-73 were: Cornwall, 10.8 mills; Greenwich, 15.5 mills; Darien, 20.5 mills; Weston, 23.4 mills; West Hartford, 28.0 mills; Canton, 30.0 mills; Chaplin, 49.2 mills. The state average was 25.7 mills. For the 1972-73 school year, the average percentage of the local property tax spent on education by all towns was 57 percent; the percentage spent by Canton was 73 percent. The tax effort of a town to finance education may be measured by determining the net school mill rate which is that part of the net mill rate which a town spends on education. Sample net school mill rates for the school year 1972-73 were: Greenwich, 7.0 mills; Cornwall, 7.8 mills; Darien, 14.6 mills; West Hartford, 16.2 mills; Weston, 19.4 mills; Canton, 21.9 mills; Chaplin, 37.4 mills. The state average was 14.6 mills. A comparison between property-rich and property-poor towns, ranking all towns in Connecticut by yields per pupil and dividing the towns into deciles, shows the following relationship between yield per pupil, per pupil operation expenditures, and net school mill rate for the 1972-73 school year: Of these relationships, a few are key: although the average per pupil operating expenditures of eighth-decile towns are 30 percent less than the average per pupil operating expenditures of firstdecile towns, the average net school mill rate of eighth-decile towns is almost twice that of firstdecile towns; although the average per pupil operating expenditures of tenth-decile towns are 35 percent less than the average per pupil operating expenditures of first-decile towns, the average net school mill rate of tenth-decile towns is almost two and one-half times that of first decile towns. The net school mill rate of Canton is higher than the net school mill rate of Darien, Greenwich, West Hartford, and Weston, but the per pupil operating expenditures of Canton are substantially lower. Greenwich's net school mill rate is less than 33 percent of Canton's, but Greenwich's per pupil operating expenditures are slightly more than 50 percent higher than Canton's. In sum, taxpayers in property-poor towns such as Canton pay higher tax rates for education than taxpayers in property-rich towns. The higher tax rates generate tax revenues in comparatively small amounts and property-poor towns cannot afford to spend for the education of their pupils, on a per pupil basis, the same amounts that property-rich towns do. These facts were affirmed by a conclusion of the governor's commission on tax reform: "In short, many towns can tax far less and spend much more; and those less fortunate towns can never catch up in school expenditure because taxes are already as high as homeowners can toler ate. . . . This dual inequity—a family can pay more and get less for its children—is the fundamental issue of school finance." 2 Governor's Commission on Tax Reform, Local Government—Schools and Property, pp. 53-54. The wide disparities that exist in the amount spent on education by the various towns result primarily from the wide disparities that exist in the taxable wealth of the various towns; the present system of financing education in Connecticut ensures that, regardless of the educational needs or wants of children, more educational dollars will be allotted to children who live in property-rich towns than to children who live in property-poor towns. In the 1972-73 school year, the per pupil operating expenses of sample towns were as follows: Darien, $1570.47; West Hartford, $1443.10; Greenwich, $1428.99; Weston, $1332.79; Canton, $945.15; Lisbon, $669.94. The state average was $1054.70. Property-rich towns were and still are able, through higher per pupil expenditures, to provide a substantially wider range and higher quality of educational services than Canton in the areas of course offerings, special education, learning disability teachers and facilities, library resources, television teaching, and in numerous other areas, including higher ratios of classroom teachers to students, specialist teachers to students, guidance counselors to students, and other similar relationships. Because of the two-thirds reimbursement provision of the state aid statute for special education, towns that spend more on special education receive more state aid than towns that spend less. This is illustrated by the following chart: High education-spending towns, such as Darien, were and are able to obtain more special education funds from the state because they are better able to afford the one-third portion of the expense, better equipped to identify special education problems and better staffed to apply for funds. An important factor in determining what school system a teacher chooses to teach in is the school's salary scale. Although over 80 percent of Canton's educational budget goes to teachers' salaries, in 1973-74, Canton's average teacher salary was $10,830 compared with $14,175 in West Hartford. Top salary comparisons were $14,990 and $19,140, respectively. Towns with fewer tax resources such as Canton tend to have a higher percentage of inexperienced teachers, especially teachers with only one year of experience or less. The criteria for evaluating the "quality of education" in a town include the following: (a) size of classes; (b) training, experience and background of teaching staff; (c) materials, books and supplies; (d) school philosophy and objectives; (e) type of local control; (f) test scores as measured against ability; (g) degree of motivation and application of the students; (h) course offerings and extracurricular activities. In most cases, the optimal version of these criteria is achieved by higher per pnpil operating expenditures, and because many of the elements of a quality education require higher per pupil operating expenditures, there is a direct relationship between per pupil school expenditures and the breadth and quality of educational programs. Further findings by the trial court were addressed to consideration of possible means of achieving equality of educational opportunities with further consideration given to the variations in types of education and other variables that may affect the educational program and its cost. It found that equalizing the ability of the various towns to finance education would provide all towns, property-poor and property-rich, with the opportunity to exercise a meaningful choice as to educational services to be offered to students. It found that at the time of trial Connecticut ranked fiftieth among the states in its efforts to distribute aid in such a way as to equalize the abilities of the various towns to finance education, ranked forty-seventh in the percent of educational funding coming from the state and second in the percent of education funding coming from local governments, and that of all the existing forms of distributing state funds used throughout the country, the flat grant has the least equalizing effect on local financial abilities. It further found that substantial progress can be made toward equalizing the financial abilities of the local districts by redistributing the flat grant funds according to a different formula, which can be accomplished without the need for additional state taxes; that equalizing the ability of the various towns to finance education would not require that all towns spend the same amount for the education of each pupil since towns can be left free to choose the level of expenditures appropriate for their circumstances ; and that there is no reason why local control needs to he diminished in any degree merely because some financing system other than the present one is adopted. In its finding and by supplemental judgments dated August 8, 1975, the court took cognizance of legislation passed by the 1975 session of the General Assembly which increased the state's flat grant from $215 per pupil to $250 per pupil and provided for "Special Instant Lottery Games" the net proceeds of which were to be used "solely for educational equalization grants to towns"; Public Acts 1975, No. 75-344; and distributed in accordance with Public Acts 1975, No. 75-341, "An Act Establishing a Guaranteed Tax Base Program to Finance Public Elementary and Secondary Education." The court found that the $35 per pupil increase in the flat grant has little, if any, effect on equalizing the ability of the various towns to finance education, and that although the instant lottery legislation would provide an additional grant of $12.50 per pupil per year to those towns which fall in the bottom eighty-fifth percentile of all Connecticut towns ranked according to property-taxable wealth and median family income, the effect of the additional lottery fund grant on equalizing the ability of Canton and other property-poor towns to finance education "will be miniscule and not significant." Two further findings of the trial court were the following: "The State Board of Education has consultants available who concern themselves with assisting local boards of education in maintaining the statutorily-mandated minimum quality of education," and "Canton is providing the basic elementary and secondary education required by statute." It was on the basis of the foregoing finding of facts that the trial court reached the conclusions which are the subject of the defendants' third assignment of error. These conclusions were (in addition to the conclusion that the doctrine of sovereign immunity was not a defense to this action, which ruling we have already discussed) that education is a fundamental right under the Connecticut constitution; that the state system of financing education is an interference with the "fundamental right" to education and therefore requires "strict judicial scrutiny"; that § 10-240 and 10-241 of the General Statutes are violative of the equal rights and equal protection of the laws provisions of the constitution of Connecticut, article first, § 1 and 20, and of article eighth, § 1, and they are not appro priate legislation within the purview of article eighth, § 1; that variations in money available to different towns produce variations in quality of instruction; that the financing system discriminates against pupils in Canton because the breadth and quality of the education they receive is to a substantial degree narrower and lower than that which pupils receive in comparable towns with larger tax bases and a greater ability to finance education; that that narrower breadth and lower quality of education is a result of the state's delegation of its responsibilities without regard to Canton's financial capabilities; that the present financing system is not appropriate legislation to discharge the state's constitutional duty to educate its students and, therefore, the system, beyond a reasonable doubt, violates the constitution of Connecticut, article eighth, § 1; that although local control of public schools is a legitimate state objective, since local control of education need not he diminished if the ability of towns to finance education is equalized, the local control objective is not a rational basis for retention of the present financing system; that the state has not selected the less drastic means for effectuating the local control objective and, therefore, the system, beyond a reasonable doubt, violates the constitution of Connecticut, article first, § 1 and 20; that Canton's reliance on real property taxes as the principal source of its funds for providing public school education has not been diminished in any legally significant degree by Public Acts 1975, No. 75-341; that Public Acts 1975, No.'75-341 provided no basis for modifying the court's earlier announced decision that 10-240 and 10-241 of the General Statutes are violative of the constitution of Connecticut, article first, § 1 and 20, and article eighth, § 1. The conclusions of the trial court are tested by the finding. Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 397, 349 A.2d 838; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645. "A finding is to be read to uphold the judgment. Every reasonable presumption will be indulged in to support it." Maltbie, Conn. App. Proc. § 135. The conclusions reached by the trial court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58; Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500; Craig v. Dunleavy, 154 Conn. 100,105, 221 A.2d 855. Since many of the conclusions of the court are interdependent, it is unnecessary to consider them seriatim. Obviously the most significant ones are those dealing with constitutional interpretation, and the tests applicable to that interpretation, generally, and to the equal rights and equal protection provisions, specifically. This court has many times noted that the equal protection clauses of the state and federal constitutions have a like meaning and impose similar constitutional limitations. State v. Rao, 171 Conn. 600, 370 A.2d 1310; Kellems v. Brown, 163 Conn. 478, 485, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678; Snyder v. Newtown, 147 Conn. 374, 381,161 A.2d 770, appeal dismissed, 365 U.S. 299, 81 S. Ct. 692, 5 L. Ed. 2d 688; Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702; State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 195, 132 A. 561. In State v. Rao, supra, we reiterated (p. 602) the controlling principles of law as enunciated by the United States Supreme Court: "Equal protection analysis must commence with a determination of whether a legislative classification . . . impinges upon a fundamental right. Where the legislation impinges upon a fundamental right . it must he struck down unless justified by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 335, 342, 92 S. Ct. 995, 31 L. Ed. 2d 274. Where the statute does not involve fundamental rights . . . the legislation will withstand constitutional attack if the distinction is founded on a rational basis." See Liistro v. Robinson, 170 Conn. 116, 124, 365 A.2d 109; Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16, the United States Supreme Court reaffirmed its application of the two standards of judicial review under the equal protection clause of the federal constitution: (1) the strict scrutiny test, where, once unequal treatment is demonstrated, the state must show a compelling state interest for the unequal treatment; and (2) the rational basis test, where, once unequal treatment is demonstrated, the complaining party must show that the legislation in question does not have a rational basis. In the Rodriguez case, the United States Supreme Court adopted what appears to be a special test for determining whether education is a fundamental constitutional right: "[T]he key to discovering whether education is 'fundamental' is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution." Sam Antonio Independent School District v. Rodriguez, supra, 33. The court concluded that no such right was guaranteed by the federal constitution and, accordingly, declined to apply a strict scrutiny test. Parenthetically, it is pertinent to note some of the criticism of the application of the test of fundamentality as determined by the existence of an explicit or implicit constitutional guarantee. See the dissenting opinion by Mr. Justice Marshall in San Antonio Independent School District v. Rodriguez, supra, 300; Robinson v. Cahill, 62 N.J. 473, 491, 303 A.2d 273, cert. denied, sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219; Serrano v. Priest, 18 Cal. 3d 728, 767, 557 P.2d 929 (Serrano II); Thompson v. Engelking, 96 Idaho 793, 804, 537 P.2d 635. The Rodriguez case is very relevant to the appeal before us. The equal protection clauses of both the United States and Connecticut constitutions having a like meaning, the decisions of the United States Supreme Court defining federal constitutional rights are, at the least, persuasive authority, although we fully recognize the primary independent vitality of the provisions of our own constitution. Paraphrasing the language of the California Supreme Court in People v. Longwill, 3.4 Cal. 3d 943, 951 n.4, 538 P.2d 753: In the area of fundamental civil liberties —which includes all protections of the declaration of rights contained in article first of the Connecticut constitution-—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connect icut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law. In the Rodriguez case, the United States Supreme Court was called upon to review the financing system for education used in Texas, which system had been attacked as violating the equal protection clause of the federal constitution. Although there are significant differences between the Texas system and the Connecticut system, they are alike in that a substantial quantum of educational support is supplied by local districts with disparities in financial resources for the furnishing of such support. The trial court in the present cases observed: "[T]hose differences do not, in the opinion of this court, make inapplicable to the Connecticut system the reasons why the Texas system was held not to violate the United States Constitution." We agree with that conclusion. The Rodriguez decision was a 5 to 4 decision, and although the majority holding was that the Texas education-financing system did not violate the equal protection provisions of the federal constitution, the language of the majority opinion and the strength of the dissenting opinions have had great impact on state education-financing systems. Not the least significant caveats expressed in the majority opinion were the observations (p. 40) that the appellees in that case "would have the Court intrude in an area in which it has traditionally deferred to state legislatures," the acknowledgement (p. 41) that the justices of that court "lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues," and the court's expressed concern (p. 44) for the relationship between national and state power under our federal system—"it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State." Two other observations in the Rodrigues majority opinion have also obviously had their effect on state action to provide more uniform educational opportunity. The first is the reaffirmation of the statements made in Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 98 L. Ed. 873, that "education is perhaps the most important function of state and local governments" and "[i]n these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." The other observation is the concluding paragraph of the majority opinion in Rodrigues in which the court stated (p. 58) as "a cautionary postscript": "The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them." In our consideration of the merits of the present appeals, we have not found material aid in the many decisions from the courts of other jurisdictions since most of them depend upon the controlling and differing provisions of the constitutions in the particular jurisdictions. Nor have we found the Rodriguez test for the fundamentality of the right to an education of particular help—although under that test it cannot be questioned but that in the light of the Connecticut constitutional recognition of the right to education (article eighth, § 1) it is, in Connecticut, a "fundamental" right. As other courts have recognized, educational equalization cases are "in significant aspects sui generis" and not subject to analysis by accepted conventional tests or the application of mechanical standards. The wealth discrimination found among school districts differs materially from the usual equal protection case where a fairly defined indigent class suffers discrimination to its peculiar disadvantage. The discrimination is relative rather than absolute. Further, the children living in towns with relatively low assessable property values are afforded public education but, as the trial court found, the education they receive is to a substantial degree narrower and lower in quality than that which pupils receive in comparable towns with a larger tax base and greater ability to finance education. True, the state has mandated local provision for a basic educational program with local option for a program of higher quality but, as the trial court's finding indicates, that option to a town which lacks the resources to implement the higher quality educational program which it desires and which is available to property-richer towns is highly illusory. As Mr. Justice Marshall put it in his dissent in Rodrigues (p. 89): "[T]his Court has never suggested that because some 'adequate' level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that 'all persons similarly circumstanced shall he treated alike.' F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) [40 S. Ct. 560, 64 L. Ed. 989]." With justification, the trial court found merit to the complaints of the plaintiffs about "the sheer irrationality" of the state's system of financing education in the state on the basis of property values, noting that their argument " 'would be similar and no less tenable should the state make educational expenditures dependent upon some other irrelevant factor, such as the number of telephone poles in the district.' Note . . . ["A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars," 81 Yale L.J. 1303, 1307]." We find our thinking to be substantially in accord with the decisions of the New Jersey Supreme Court in Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273, and the California Supreme Court in Serrano v. Priest, 18 Cal. 3d 728, 557 P.2d 929 (Serrano II), and whether we apply the "fundamentality" test adopted by Rodriguez or the pre-Rodriguez test under our state constitution (as the California Supreme Court did in Serrano II) or the "arbitrary" test applied by the New Jersey Supreme Court in Robinson v. Cahill, supra, 492, we must conclude that in Connecticut the right to education is so basic and fundamental that any infringement of that right must be strictly scrutinized. "Connecticut has for centuries recognized it as her right and duty to provide for the proper education of the young." State ex rel. Huntington v. Huntington School Committee, 82 Conn. 563, 566, 74 A. 882. Education is so important that the state has made it compulsory through a requirement of attendance. General Statutes § 10-184. As early as 1650, the General Court (as the General Assembly was then called) adopted a provision that "euery Towneshipp within this Jurissdiction, after the Lord hath increased them to the number of fifty houshoulders, shall then forthwith appoint one within theire Towne to teach all such children as shall resorte to him, to write and read . And it is further ordered, that where any Towne shall increase to the number of one hundred families or housholders, they shall sett vp a Grammer Schoole, the masters thereof being able to instruct youths so farr as they may bee fitted for the Vniversity." 1 Col. Rec. 555. This same basic educational system has continued to this date, the state recognizing that providing for education is a state duty and function now codified in the constitution, article eighth, §1, with the obligation of overseeing education on the local level delegated to local school boards which serve as agents of the state. Murphy v. Berlin Board of Education, 167 Conn. 368, 372, 355 A.2d 265; West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 573, 295 A.2d 526. The General Assembly has by word, if not by deed, recognized in the enactment of § 10-4a of the General Statutes (see footnote 9, supra) that it is the concern of the state that "each child shall have . . . equal opportunity to receive a suitable program of educational experiences." Indeed the concept of equality is expressly embodied in the constitutional provision for distribution of the school fund in the provision (article eighth, § 4) that the fund "shall be inviolably appropriated to the support and encouragement of the public schools throughout the state, and for the equal benefit of all the people thereof." The present-day problem arises from the circumstance that over the years there has arisen a great disparity in the ability of local communities to finance local education, which has given rise to a consequent significant disparity in the quality of education available to the youth of the state. It was well stated in the memorandum of decision of the trial court, which noted that the "present method [of financing education in the state] is the result of legislation in which the state delegates to municipalities of disparate financial capability the state's duty of raising funds for operating public schools within that municipality. That legislation gives no consideration to the financial capability of the municipality to raise funds sufficient to discharge another duty delegated to the municipality by the state, that of educating the children within that municipality. The evidence in this case is that, as a result of this duty-delegating to Canton without regard to Canton's financial capabilities, pupils in Canton receive an education that is in a substantial degree lower in both breadth and quality than that received by pupils in municipalities with a greater financial capability, even though there is no difference between the constitutional duty of the state to the children in Canton and the constitutional duty of the state to the children in other towns." We conclude that without doubt the trial court correctly held that, in Connecticut, elementary and secondary education is a fundamental right, that pupils in the public schools are entitled to the equal enjoyment of that right, and that the state system of financing public elementary and secondary education as it presently exists and operates cannot pass the test of "strict judicial scrutiny" as to its constitutionality. These were the basic legal conclusions reached by the court. The remaining conclusions arise from the application of these legal principles to the facts which the court found. These we have already summarized and it is unnecessary to repeat them. It suffices to note that the exhaustive finding of facts amply supports the conclusions of the court that the present legislation enacted by the General Assembly to discharge the state's constitutional duty to educate its children, depending, as it does, primarily on a local property tax base without regard to the disparity in the financial ability of the towns to finance an educational program and with no significant equalizing state support, is not "appropriate legislation" (article eighth, § 1) to implement the requirement that the state provide a substantially equal educational opportunity to its youth in its free public elementary and secondary schools. The cross appeal of the plaintiffs requires but brief mention. Their sole assignment of error is that the trial court erred in failing to rule that the state's present system of financing public education violates the equal protection clause of the fourteenth amendment to the constitution of the United States. In fact, the trial court expressly concluded that it did not. In the light of the decision of the United States Supreme Court in the Rodrigues case and the court's finding in the present case, it is extremely doubtful that error could be found in the trial court's conclusion. The United States Supreme Court provides the ultimate definitions of the United States Constitution. Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5. It is, however, unnecessary to extend this opinion for a discussion of what is essentially an academic question. We have found no error in the court's conclusion that the present legislative provisions for financing education in the state violate the provisions of the Connecticut constitution. That suffices. In reaching our conclusion, we have not overlooked the precept that "[w'Jhen the constitutionality of legislation is in question, it is the duty of the court to sustain it unless its invalidity is beyond a reasonable doubt." Amsel v. Brooks, 141 Conn. 288, 294, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S. Ct. 125, 99 L. Ed. 693; Lublin v. Brown, 168 Conn. 212, 220, 362 A.2d 769; Kellems v. Brown, 163 Conn. 478, 487, 313 A.2d 53. With full consideration of that presumption, we have, nevertheless, reached our conclusion that there was no error in the judgments of the trial court. Under the circumstances of this case, it is not inappropriate to comment on the question of what relief may properly be afforded to the plaintiffs. As we have noted, the trial court limited its judgments, to declaratory ones while retaining jurisdiction for consideration of the granting of any consequential relief. In so doing, it quoted with approval from the portion of the Rodrigues decision which observed (p. 59) that "the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them." This observation is doubly appropriate. While " [i]t is emphatically the province and duty of the judicial department to say what the law is"; United States v. Nixon, 418 U.S. 683, 703, 94 S. Ct. 3090, 41 L. Ed. 2d 1039; the fashioning of a constitutional system for financing elementary and secondary education in the state is not only the proper function of the legislative department hut its expressly mandated duty under the provisions' of the constitution of Connecticut, article eighth, § 1. The judicial department properly stays its hand to give the legislative department an opportunity to act. Various means of achieving substantial equality of opportunities for learning have been adopted and are in operation in many other states. While the development of an appropriate legislative plan is not without its complexities, the problem is not insoluble. Nor do we share the alarm expressed in the dissenting opinion at what it concludes are "the implications of the decision" as requiring total state financing of education, loss of local administrative control over educational decisions and the requirement that education in all towns "be brought up to the Darien standard" which, if it occurred, the trial court found would require an increase of $313,000,000 over the amounts being currently expended. To the contrary, as we have noted, the trial court expressly found that none of these consequences would of necessity follow the adoption by the state of a financing program designed to achieve a substantial degree of equality of educational opportunity and permit all towns to exercise a meaningful choice as to educational services to be offered to students, that the property tax is still a viable means of producing income for education, and that there is no reason why local control lieeds to be diminished in any degree merely because some system other than the one presently in effect is. adopted. We find no reason to reject the validity of these findings. Obviously, absolute equality or precisely equal advantages are not required and cannot be attained except in the most relative sense. Logically, the state may recognize differences in educational costs based on relevant economic and educational factors and on course offerings of special interest in diverse communities. None of the basic alternative plans to equalize the ability of various towns to finance education requires that all towns spend the same amount for the education of each pupil. The very uncertainty of the extent of the nexus between dollar input and quality of educational opportunity requires allowance for variances as do individual and group disadvantages and local conditions. We also note that the General Assembly has not been unaware of the possible constitutional problems inherent in the operation of the present system. In 1973, it established a "Commission to Study School Finance and Equal Educational Opportunity." Special Acts 1973, No. 73-143. The commission was directed to "conduct a study of, and make recommendations regarding, an equitable system of producing revenue to finance the provision of an equal educational opportunity for all children of the state." Its final report, "arrived at after months of study, analysis, and discussion to fulfill our commitment to provide equality of educational opportunity for all Connecticut children," concluded (p. i) that the present system of school finance is "inherently inequitable" and that "Connecticut is not providing equal educational opportunity for all its children." It recommended a specific program to correct the situation. It is not our province to discuss the merits of the proposed plan or its implementation, hut its very existence as a result of legislative action should serve to stay judicial intervention to afford the General Assembly an opportunity to take appropriate legislative action. There is no error; however, the Superior Court having refrained from ruling on the plaintiffs' ancillary claims for relief and having retained jurisdiction pending further order of this court, the cases are remanded for further proceedings consistent with this opinion. In this opinion Bogdanski, Lostgo and Barber, Js., concurred. Bogdahski, J., filed a concurring opinion and Loiselle, J., filed a dissenting opinion. A 1972 note in the Tale Law Journal noted that suits then at various stages of the judicial process "could overturn the systems of thirty-one states." "A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars," 81 Tale L.J. 1303. Also in 1972 the governor's tax reform commission report noted (p. 47) that at that time there were eases similar to the present one pending in thirty-six other jurisdictions. 2 Governor's Commission on Tax Beform, Local Government—Schools and Property. For a discussion of the status of litigation in the various jurisdictions as of January 1, 1976, see Lindquist & Wise, "Developments in Education Litigation: Equal Protection," 5 J. Law. & Ed., No. 1, p. 1. 2 "[Conn. Const. Art. VTII §1] [free public schools.] See. 1 There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation." 3 "[Conn. Const. Art. I § 1] [equality of rights.] Sec. 1. All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." 4 "[Conn. Const. Art. I §20] [equal protection, no segregation or discrimination.] See. 20. No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin." 5 "[tT.S. Const. Amend. XIV § 1] [citizenship defined, .privileges of citizens.] Section 1. . . . No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." 6 "[General Statutes] See. 10-240. control of schools. Each town shall maintain the control of all the public schools within its limits and. for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter." 7 "[General Statutes] See. 10-241. powers of school districts. Each school district shall be a body corporate and shall have power to sue and be sued; to purchase, receive, hold and convey real and personal property for sehool purposes; to build, equip, purchase and rent schoolhouses and make major repairs thereto and to supply them with fuel, furniture and other appendages and accommodations; to establish and maintain schools of different grades; to establish and maintain a school library; to lay taxes and to borrow money for the purposes herein set forth; to make agreements and regulations for the establishing and conducting of schools not inconsistent with the regulations of the town having jurisdiction of the schools in such district; and to employ teachers, in accordance with the provisions of section 10-151, and pay their salaries. When such board appoints a superintendent, such superintendent may, with the approval of such board, employ the teachers." 8 "[General Statutes] See. 10-220. duties of boards op education. Boards of education shall maintain in their several towns good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in their judgment will best serve the interests of the town. . . ." 9 "[General Statutes] See. 10-4a. educational interests of state identified. Eor purposes of sections 10-4, 10-4b and 10-220, the educational interests of the state shall include, hut not he limited to, the concern of the state (1) that each child shall have for the period prescribed in the general statutes equal opportunity to receive a suitable program of educational experiences; (2) that each school district shall finance at a reasonable level an educational program designed to achieve this end; and (3) that the mandates in the general statutes pertaining to education within the jurisdiction of the state board of education be implemented." (Emphasis supplied.) "Mill rate is the term Connecticut towns use to indicate the local property tax rate. The mill rate indicates how many property tax dollars are paid for each $1000 of assessed valuation. For example, a mill rate of 16.35 mills means that a taxpayer pays $16.35 for each $1000 of his total assessed valuation." Financing Connecticut's Schools, Final Report of the Commission to Study School Finance and Equal Educational Opportunity, Glossary, p. 32. Finding 31 of the trial court uses the following definitions: "'Net Mill Rate' equals the stated mill rate of a town adjusted by the 'Percent Valuation' and the 'Reevaluation Factor' so that the mill rate for each town can be stated in terms of the fair market value of property for a given year." "(a) 'Net Grand List' means the assessed value of all taxable property, less exemptions, in a town, (b) 'Percent Valuation' means the town's uniform percentage of assessed valuation to fair market value as of the date of reevaluation, (e) '100% Grand List' equals the 'Net Grand List' divided by the 'Percent Valuation.' (d) 'Reevaluation Factor' is the percentage by which each '100% Grand List' must be adjusted so that each '100% Grand List' will reflect fair market value for the same year, (e) 'Equalized Grand List' means the 'Net Grand List' adjusted by the 'Percent Valuation' and the 'Reevaluation Factor' so that the grand lists of all towns will reflect fair market value for the same year. . . . 'Equalized Grand List' is called 'Current Value of Taxable Grand List.'" Public Acts 1975, No. 75-341 §2 (a) prescribed the following formula for computing the grants from lottery funds: "Each town maintaining schools according to law whose adjusted equalized net grand list per capita falls at or below the eighty-fifth percentile among all towns in the state, as determined by ranking in ascending order all towns in the state according to their adjusted equalized net grand lists per capita, shall be paid a grant, except as provided in subsection (b) or (e) of this section, in an amount equal to the product of (1) the school tax rate times (2) the difference between the adjusted equalized net grand list per capita for the town at the eighty-fifth percentile and the adjusted equalized net grand list per capita for the town, times (3) the population of the town." Section 2 (b) of the act limited the total grant to any town to an amount not to exceed "five per cent of the total grant per pupil in average daily membership received by such town pursuant to section 10-262 of the general statutes." We note that in the 1976 session of the General Assembly the permissible grant from the lottery proceeds was increased from 5 percent to 7 3/10 percent but the source of the funds was still limited to the proceeds of the instant lottery games and a restriction was continued that in the event that these funds proved insufficient, each town entitled to a grant should be paid an amount equal to its proportionate share of the gambling proceeds. General Statutes § 10-262e (e) (Rev. to 1977). "Since the Court's decision in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16, nineteen states have passed major legislative reforms to their systems for financing public education. Eleven of these states revised their systems for distributing state aid by enacting a form of district power-equalizing formulas. The remaining eight expanded their state foundation programs to assume a greater percentage of the state's educational expenditures." Lindquist & Wise, "Developments in Education Litigation: Equal Protection," 5 J. Law & Ed., No. 1, pp. 1, 22. For a listing of these cases and a discussion of many of them as of January, 1976, see Lindquist & Wise, "Developments in Education Litigation: Equal Protection," 5 J. Law & Ed. 1, 3 n.11. In December, 1976, the system of financing public schools was upheld in Oregon in Olsen v. Oregon, 276 Ore. 9, 554 P.2d 139. A system of equalizing district expenditures on education was, in November, 1976, held unconstitutional in Wisconsin in Buse v. Smith, Wis. 2d , N.W.2d ; new legislation to meet the constitutional standard for educational expenditures established in Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241 (Serrano I), was ruled invalid in Serrano v. Priest, 18 Cal. 3d 728, 557 P.2d 929 (Serrano II); and the level of state funding as it relates to one district was, in January, 1977, ruled unconstitutional by a Washington trial court in Washington v. State, Wash. 2d , P.2d. "Ultimately, a court must weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial." Robinson v. Cahill, 62 N.J. 473, 492, 303 A.2d 273. See Coons, Clune & Sugarman, "Educational Opportunity: A Workable Constitutional Test for State Financial Structures," 57 Cal. L. Rev. 305; comment, "The Evolution of Equal Protection: Education, Municipal Services, and Wealth," 7 Harv. Civ. RightsCiv. Lib. L. Rev. 105, 187; Michelson, "What is a 'Just' System for Financing Schools? An Evaluation of Alternative Reforms," 38 Law & Contemp. Prob. 436; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 130 n.98, 93 S. Ct. 1278, 36 L. Ed. 2d 16.

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

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

The motion by the firm Carter, Van Norstrand & Pacifico to withdraw its appearance for the defendant in the appeal from the Superior Court in Pair-field County is granted.

It appearing that the plaintiff in the above-entitled case has failed to defend against the defendant Connecticut State Board of Labor Eelations' appeal from the Superior Court in New London County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that unless the plaintiff files its brief on or before February 26, 1977, the judgment be set aside and the case be remanded with direction to render judgment for the defendants.

The petition by the defendant Carole A. Laydon for certification for appeal from the Court of Common Pleas in New Haven County is granted.

The named defendant's motion to dismiss the plaintiffs' cross appeal filed April 27, 1976, from the Superior Court in Fairfield County, which motion was reargued this date, is granted unless the plaintiffs on or. before December 28, 1976, file their request for a finding and draft finding.

House, C. J. On a trial to a jury, the defendant was found guilty of the crime of robbery in the first degree in violation of § 53a-134 (a) (2) of the General Statutes. He took the present appeal from the judgment, pressing as claims of error the court's denial of his motion for a separate trial and its charge to the jury with respect to the guilt of an accessory to a crime. The trial arose out of an incident whieh happened in Middletown on November 18, 1972, which incident we have already described in some detail in State v. Teart, 170 Conn. 332, 365 A.2d 1200. Teart and the defendant McArthur were tried jointly. Three young men, Gerald R. Behm, Jr., Edward F. Alwell, Jr., and Steven Green, after spending some time drinking and playing pool at a place known as the "Three Coins," about 2 a.m. drove two friends to another tavern where it was hoped they might obtain a ride to their homes. The three waited in their parked car while the two friends left to see if they could find someone to take them home. Within two or three minutes three men came to the car. Exactly what happened next is far from clear as the testimony of the participants varied widely. What does appear for certain is that knives were drawn and that both Behm and Alwell were assaulted and robbed. The state offered evidence from which the jury could find that Behm was pulled from the front seat, assaulted and robbed at knife point by the defendant McArthur, assisted by Dennis J. Teart, and, while this was happening, Willie Vereen was robbing Alwell. The defendant McArthur did not testify in his own defense but called Creen as a witness to testify that he was not present at the time of the robbery. G-reen at first testified that he did not see the defendant at the scene and, later, that the defendant was not there but still later admitted he did not know if the defendant was there. On the other hand, his testimony fully implicated Teart in the robbery. Teart testified that the defendant was not present at any time during the robbery. On the conflicting evidence before them, the jury found the defendant guilty of the crime of robbery. At the trial, McArthur and Teart were represented by different counsel and McArthur moved for a severance of the trials. His motion was denied and on this appeal he claims that the trial court abused its discretion in not granting his motion for severance of his trial from that of Teart. He claims that his defense and that of Teart were antagonistic and, therefore, he should have been afforded a separate trial. He now asserts that because Ms motion for a severance was denied he was prejudiced by being tried with the codefendant Teart. This court recently stated in State v. Holup, 167 Conn. 240, 245, 355 A.2d 119: "Because a preliminary motion for separate trials obviously must be decided before the actual trial, the merits of the motion can be determined only on the basis of whether at that time it appears that injustice is likely to result unless separate trials are held. It is for this reason that in support of such a motion the court must be fully informed of any and all circumstances which indicate that justice to the parties requires separate trials. Even with a full disclosure, supplemented by inquiry from the court '[i]n the exercise of a wise discretion'; State v. Klein . . . [97 Conn. 321, 324, 116 A. 596]; exceptional cases may arise where a motion for separate trials has been denied, but during or after the joint trial it appears that the joint trial is resulting or has resulted in substantial injustice to one or more of the accused. In such circumstances, justice to the prejudiced accused requires that he be afforded a new trial. Chief Justice Wheeler in State v. Klein, supra, 324, summarized the governing principles thusly: 'The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded. The test for this court is whether the denial of the motion for a separate trial has resulted in substantial injustice to the accused.' " In this case, the defendant has failed to qualify himself by either the test applied by the trial court or the test applicable by this court. It does not appear that the trial court was informed of any circumstances which would indicate that substan tial injustice would result from a joint trial. Nor does the record before us support the claim that the joint trial of the defendant and Teart resulted in "substantial injustice." Although the defendant claims that his defense and that of the codefendant Teart were antagonistic, the record does not support this claim. McArthur's defense was an alibi— not only that he did not participate in the robbery but that he was not there. Both Green and Teart by their testimony supported this defense and Teart's own defense was that although he was present he did not aid in the commission of the crime but instead acted to protect a friend who was one of the victims of the robbery. State v. Teart, 170 Conn. 332, 334, 365 A.2d 1200. The defenses were completely consistent, not antagonistic, and McArthur had the full advantage of the exculpatory testimony of the witness Green and of his codefendant, Teart. It does not appear that he was in any way prejudiced by the joint trial. The defendant's second claim is that the court erred "in overruling the defendant's exception to the court's instructions to the jury with respect to the guilt of an accessory to the commission of a crime." We find no merit whatsoever to this claim. It arises from the circumstance that the codefendant Teart based his defense on a claim that during the commission of the robbery he was present but instead of aiding in it he was attempting to protect a friend. It became a question for the jury as to whether Teart's actions were in aid of those who were doing the robbing, as the state claimed, or to protect his friend, as he claimed. Under the circumstances, the court found it necessary as to Teart to charge on the criminal liability of an accessory to a crime in the event that the jury found that the facts were as the state claimed. Teart was found guilty and on his appeal we found that the trial court had erred in its instructions to the jury on the law concerning accessories and remanded his case for a new trial. State v. Teart, supra, 336. Teart's trial counsel properly excepted to the erroneous charge whereupon trial counsel for McArthur stated: "Also I would except to the charging on the accessory charge, too." The simple fact is that the court's erroneous charge with respect to the element of intent in the case of Teart, who the state claimed was at least an accessory if not a principal in the commission of the crime, had no relevancy whatsoever to the defendant McArthur who was charged as a principal, not an accessory, and whose defense was an alibi. The trial court made this distinction between the two defendants abundantly clear. Without quoting from the charge in detail, it suffices to note that at the beginning of its charge the court informed the jury that its instructions as to the law would be applicable to both defendants, "except this one section, when I will have to tell you about Mr. Teart separately, and when we get to that I will be very specific about it." The court carefully followed this procedure with a charge on the general law insofar as it applied commonly to both defendants. After concluding those general instructions, the court then gave the specific instructions applicable only to Teart, stating: "Now, ladies and gentlemen, there is another situation involving Mr. Teart which you have evidence on and which I must also discuss with you." It then instructed the jury as to the mental state which it must find Teart had in order to find him guilty as an accessory. In so doing, it carefully restricted its instruction on this facet of the case to Teart, mentioning his name specifically eleven times and making no mention of McArthur whatsoever. That the court erred in these latter instructions which were clearly and explicitly limited to Teart's case is of no benefit to McArthur who was in no way prejudiced thereby and cannot benefit therefrom on this appeal. There is no error. In this opinion the other judges concurred.

The motion by the firm Schweitzer, Hare and MacDonnell to withdraw its appearance for the plaintiff in the appeal from the Superior Court in New London County is granted.

The defendant's petition for certification for appeal from the Court of Common Pleas in Fair-field County at Stamford is granted.

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

The plaintiff's petition for certification for appeal from the Court of Common Pleas in New Haven County is denied.

It appearing that the defendant in the above-entitled ease has failed to prosecute his appeal from the Superior Court in Fairfield County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed.

Per Curiam. Following a lengthy hearing, the plaintiff, who was a civilian employee in the New Haven police department, was found by the defendant board guilty beyond a reasonable doubt of a violation of § 53a-119 of the General Statutes (shoplifting) and § 53a-125 (larceny) and also guilty of a violation of department rule 15, § 1, subsection 27, which states that "[n]o member of the Department shall be a principal of, or a party to, any criminal offense." The plaintiff's admission and his signed confession amply justified the board's conclusion of guilt. He was dismissed from his employment in the department and appealed to the Court of Common Pleas claiming eighteén errors in the board's conduct of the hearing. The Court of Common Pleas dismissed the appeal, filing a lengthy memorandum of decision discussing each of the plaintiff's contentions. Prom that judgment the plaintiff brought the present appeal, assigning forty errors on the part of the trial court. We have carefully examined the record of the board's hearing and the proceedings in the trial court. The conduct of the plaintiff's counsel before the board can best be described as not professional. While in our decisions on most appeals we attempt to discuss in some detail the merits of the appellant's claims and assignments of error, in this case their sheer number and total lack of merit coupled with the contents of the trial court's carefully analyzed and reasoned opinion prompt a deviation from that practice. There is no error.

The state's motion to set aside the judgment of the Appellate Division of the Court of Common Pleas and to reinstate the judgment of the trial court is denied and counsel for the defendants is hereby ordered to file a brief on their behalf on or before November 5, 1976.

Per Curiam. The plaintiffs, heirs-at-law of Rocco D'Agostino, deceased, appealed to the Superior Court from the admission of the decedent's will to probate. The plaintiffs claimed that the testator lacked sufficient testamentary capacity to execute the will, and that the will was the product of undue influence exerted upon the testator by the defendant. The jury returned a verdict finding the will to be invalid, and, from the judgment rendered, the defendant has appealed to this court. At the trial in the Superior Court, three interrogatories were submitted to the jury, the first as to due execution, the second as to testamentary capacity, and the third as to undue influence by the proponent Joseph Amarante. The jury answered no to the first interrogatory, yes to the second interrogatory, and yes to the third interrogatory. "Due execution and testamentary capacity are statutory issues (General Statutes §45-160, 45-161), and the burden of proof as to each is upon the proponent. This remains so even though the contestant, as was the case here, affirmatively pleads lack of due execution and lack of testamentary capacity." Wheat v. Wheat, 156 Conn. 575, 578, 244 A.2d 359; Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579. In any appeal from probate, the Superior Court is exercising a limited statutory jurisdiction and has no greater powers than those of the Probate Court. Heiser v. Morgan Guaranty Trust Go., 150 Conn. 563, 565, 192 A.2d 44; Palmer v. Reeves, 120 Conn. 405, 409, 182 A. 138. "Since there is a trial de novo on the appeal to the Superior Court, the proponent of a will has the burden of proof on the statutory issues of due execution and testamentary capacity exactly as lie had in the Probate Court. Boschen v. Second National Bank, 130 Conn. 501, 504, 35 A.2d 849; Livingston's Appeal, 63 Conn. 68, 74, 26 A. 470. This is so whether in the appeal from probate the proponent is the appellee or the appellant. Livingston's Appeal, supra, 75." Berkeley v. Berkeley, supra, 401. Section 45-161 required that a will, to be duly executed, should be (1) in writing, (2) subscribed by the testator, and (3) attested by three witnesses, each of them subscribing in the testator's presence. The jury, by its response to the first interrogatory, found a lack of due execution. No exception to the court's charge pertaining to execution was taken. The verdict, therefore, must stand. There is no error. On the date the present will was executed (September 20, 1970), the statute required three witnesses to the execution of a will. The statute, §45-161, was amended, however, by Public Acts 1971, No. 71-240, and now reads that only two witnesses are required.

The defendant's motion in the appeal from the Superior Court in New Haven County for a review by this court of the order by the trial court setting the amount of his appeal bond is granted and the relief sought therein is denied.

The defendant's petition for certification for appeal from the Appellate Court, 16 Conn. App. 184, is denied.

The defendant's petition for certification for appeal from the Appellate Court, 16 Conn. App. 548, is denied.

Peters, C. J. The dispositive issue in this case, which comes to us by way of reservation, is whether General Statutes (Rev. to 1989) § 10-145b (i) violates the plain tiffs' due process and contractual rights guaranteed by the federal and state constitutions. The plaintiffs, the Connecticut Education Association, Inc., the Connecticut State Federation of Teachers, Phyllis Greene and Harriet Strain, brought suit in the Superior Court seeking a declaratory judgment that General Statutes (Rev. to 1989) § 10-145b (i) is unconstitutional. The trial court granted the parties' motion for reservation to the Appellate Court upon stipulated facts to determine the provision's constitutionality. We transferred the case here pursuant to Practice Book § 4023 and now answer the reserved question in the negative. Pursuant to Practice Book § 4148, the parties stipulated to the following facts. The plaintiffs, the Connecticut Education Association, Inc., and the Connecticut State Federation of Teachers, Inc., are nonprofit corporations and labor organizations representing public school teachers and local teacher bargaining representatives pursuant to General Statutes § 10-153a. The plaintiff Phyllis Greene resides in Portland, teaches in the Portland public school system and holds a standard teaching certificate issued by the state department of education. The plaintiff Harriet Strain resides in Killingworth, teaches in Old Saybrook and holds a permanent teaching certificate also issued by the state department of education. The defendant Gerald Tirozzi, the state commissioner of education, and the defendant state board of education (board) are jointly charged with the general supervision and control of the state's educational interests. See General Statutes § 10-1, 10-3a and 10-4. Several statutes provide a frame of reference for the issues in this case. General Statutes (Rev. to 1989) § 10-145, enjoins local boards of education from employing or paying any teacher who does not hold an appropriate state-issued teaching certificate. See Ames v. Board of Education, 167 Conn. 444, 446, 356 A.2d 100 (1975). Related statutes confer upon the defendant board the responsibility for issuing teaching certificates and adopting certificate regulations. General Statutes (Rev. to 1989) § 10-144o, 10-145a (a), 10-145d (a) and 10-146b. Before May, 1986, a two-tiered certification process governed Connecticut school teachers. Newly certified teachers received "provisional teaching certificates," valid for no fewer than three years. Thereafter, teachers became eligible to receive a "standard teaching certificate," valid for life and revocable only "for cause," as provided by statute. General Statutes (Rev. to 1985) § 10-144o; General Statutes (Rev. to 1989) § 10-145b (m); Ames v. Board of Education, supra, 446. On July 2, 1986, the General Assembly passed the legislation presently at issue, Public Acts, Spec. Sess., May, 1986, No. 1, entitled "An Act Concerning Education Enhancement" (act). The act, as amended by Public Acts 1988, No. 88-273, replaced the two-tiered certificate system with a three-tiered system, beginning with an "initial educator certificate," graduating to a "provisional educator certificate" and finally to a "professional educator certificate." General Statutes (Rev. to 1989) § 10-144o (2), (5) and (7). To remain cer tified to teach, those teachers holding standard or permanent teaching certificates must, by July 1, 1989, exchange them for professional educator certificates. The standard or permanent teaching certificates will be invalid after July 1, 1989. General Statutes (Rev. to 1989) § 10-145b (i). Thus, by July 1,1989, over 30,000 active teachers must surrender their teaching certificates. The new professional educator certificates will be issued for five year renewable terms. The act, however, conditions the renewal of the certificates solely upon each teacher's "successful completion of professional development activities which shall consist of not less than nine continuing education units [CEUs] or their equivalent . . . during each successive five-year period." General Statutes (Rev. to 1989) § 10-145b (l) (l). The act requires state and local or regional boards of education to underwrite the entire cost of CEU offerings. As the plaintiffs conceded at oral argument before this court, the only burden that the act imposes upon teachers already holding standard or permanent teaching certificates is the successful completion of the CEUs. The provisions for the exchange of certificates and for the continuing education were enacted as part of a comprehensive legislative package intended to upgrade public education in this state. A major purpose of the act was to attract a greater number of qualified people to enter and to remain in the teaching profession. Recognizing the importance of higher salaries to the achievement of this goal, the legislature offered state money to each local and regional school district so that new teachers could be hired at a "state designated target minimum salary." General Statutes (Rev. to 1989) § 10-257a (e), 10-257b. Further funding was provided to school districts so that they could increase the salaries of experienced teachers, address the problem of crowded classrooms, provide mentor and assessment programs and otherwise enhance their general educational offerings. General Statutes (Rev. to 1989) § 10-257c, 10-257d and 10-2571 In return for these financial enhancements of the teaching profes sion as a whole, individual teachers are being required to improve their own teaching skills by completing nine CEUs within five teaching years after they receive their new professional educator certificates in July, 1989. The plaintiffs claim that the mandatory substitution of these certificates for the teaching certificates they presently hold will violate their constitutional rights to due process and to protection of contracts. I The plaintiffs make two separate due process arguments: procedural and substantive. We conclude that the act does not violate the plaintiffs' due process rights in either respect. A Analysis of the plaintiffs' procedural due process claim requires a three part inquiry: (1) did the plaintiffs have a property interest in their standard and permanent teaching certificates; (2) does General Statutes (Rev. to 1989) § 10-145b (i) deprive them of that property interest; and (3) did the deprivation of the interest occur without due process of law? Although we agree with the plaintiffs that they have a property interest that is constitutionally cognizable, we conclude that this interest has not been unconstitutionally impaired. "Property" is a "broad and majestic" term and a great constitutional concept " 'purposely left to gather meaning from experience.' " Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), quoting National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S. Ct. 1173, 93 L. Ed. 1556 (1949) (Frankfurter, J., dissenting). Property interests are more than abstract needs, desires or unilateral expectations of benefits or privileges. Rather, a person must have "a legitimate claim of entitlement" to a benefit or privilege to have a property interest in that benefit. Board of Regents v. Roth, supra, 577. "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . ' " Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), quoting Board of Regents v. Roth, supra, 577; see also Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155, 47 L. Ed. 2d 405, reh. denied, 425 U.S. 985, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976). "The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' " Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). A person has an entitlement in a benefit or privilege if there are "rules or mutually explicit understandings that support his claim of entitlement to the benefit . . . that he may invoke at a hearing." Perry v. Sinderman, 408 U.S. 593, 601, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); see also Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 48 L. Ed 2d 684 (1976); Bartlett v. Krause, 209 Conn. 352, 362-63, 551 A.2d 710 (1988); 2 R. Rotunda, J. Nowak & J. Young, Constitutional Law: Substance and Procedure (1986) § 17.5, pp. 234-36. Under the governing statutes and case law, the rights of Connecticut school teachers in their teaching certificates qualify as a property interest because these certificates are needed in order to obtain and maintain a teaching position. General Statutes (Rev. to 1989) § 10-145. Connecticut law provided, prior to the act at issue, that the defendant board could only revoke a teacher's certificate "for cause," as defined specifically by statute. General Statutes § 10-145b (m). Accordingly, we have expressly held that "[a] teacher who is given by statute the right to continued employment except upon a showing of cause or the bona fide elimination of his position . . . acquires a property right that is entitled to protection under the due process clause." Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). Our holding in Lee readily encompasses the proposition that teachers also have a property interest in the rights that inhere in the underlying certificates guaranteeing their employment. "Once licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood. . In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971) (driver's license of a clergyman whose ministry required travel by car); see also Pet v. Department of Health Services, 207 Conn. 346, 353-54, 542 A.2d 672 (1988) (license to practice medicine); Leib v. Board of Examiners for Nursing, 177 Conn. 78, 83, 411 A.2d 42 (1979) (registered nurse's license); Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 45, 327 A.2d 588 (1973) (license to sell and repair automobiles). The conclusion that the plaintiffs have a constitutionally protected property interest in their certificates does not of course establish that these property rights have been unconstitutionally compromised by the enactment of General Statutes (Rev. to 1989) § 10-145b (i). It bears repeating that, on July 1,1989, the plaintiffs' new certificates will afford them the very same rights they had before the act's passage except that they will have to complete nine CEUs, or their equivalent, within five teaching years, in order to renew their certificates for another five years. Significantly, the plaintiffs do not contend that the constitution prevents the state, or even a local or regional school board, from imposing additional educational requirements as a condition for continued service as a teacher. Federal cases support the proposition that such educational requirements do not create an unconstitutional burden. " '[LJegislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.' " United States v. Locke, 471 U.S. 84, 104, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985), quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976). Furthermore, "[e]ven with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties." United States v. Locke, supra, 104; see also Brown v. McGarr, 774 F.2d 777, 782 (7th Cir. 1985) (completion of qualifying units a valid condition for admittance to the "trial bar," even for an attorney who had already been a member of the bar before the creation of the "trial bar"). The plaintiffs implicitly concede, therefore, that the legislature could constitutionally have subjected their existing teacher certificates to divestment, under § 10-145b (m) or otherwise, should they fail to complete the nine CEUs within five teaching years. The explicit focus of the plaintiffs' constitutional argument is their dissatisfaction with the statutory mandate that they trade lifetime certificates for renewable ones. We are not persuaded that the difference between the existing standard and permanent teaching certificates and the prospective professional educator certificate is a distinction of constitutional dimension, when completion of the educational requirement is the only statutory condition for renewal of the new certificates. The plaintiffs, in effect, argue that although an added educational requirement may operate constitutionally as a condition subsequent to the continuing validity of an existing teaching certificate, the identical requirement becomes unconstitutional when it is a condition precedent to renewal of a new certificate. Our reading of the relevant constitutional cases discloses no support for this proposition. See, e.g., Rogers v. Bellei, 401 U.S. 815, 833-34, 91 S. Ct. 1060, 28 L. Ed. 2d 499 (1971); Ramos-Hernandez v. Immigration & Naturalization Service, 566 F.2d 638, 642 (9th Cir. 1977). Taking into account the legislature's laudable objective of upgrading education, we conclude that the act does not constitute a significant present impairment or deprivation of the plaintiffs' property interests in their teaching certificates, and therefore does not violate their procedural due process rights. Even were we to find that the act unconstitutionally impairs the plaintiffs' property interests, " 'the question remains what process is due' "? Federal Deposit Ins. Corporation v. Mallen, 486 U.S. 230, 240, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The "root requirement" of the due process clause is that the state actor afford individuals notice and an opportunity for a hearing before depriving them of their property interests. Cleveland Board of Education v. Loudermill, supra, 542; Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); Bartlett v. Krause, supra, 372. Although the defendants concede that there was no hearing at which individual teachers had the opportunity to protest the termination of their existing certificates, the legislature provided the plaintiffs with all the process that is their constitutional due. "In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements." United States v. Locke, supra, 108; Texaco, Inc. v. Short, 454 U.S. 516, 532, 102 S. Ct. 781, 70 L. Ed. 2d 738 (1982). In this case the proposed act had been much publicized and the plaintiffs had not only been afforded "a reasonable opportunity to familiarize themselves" with it, but the two plaintiff unions, which also represent the individual plaintiffs, participated in the committee hearings leading up to the act. See Conn. Joint Standing Committee Hearings, Education, Pt. 1,1986 Sess., pp. 156-62, 169-70,172-74 and 206-208. Thus, the legislature accorded to the plaintiffs all the process they were due. B We also disagree with the plaintiffs' claim that the act violates their constitutional rights to substantive due process. The plaintiffs do not belong to a constitutionally recognized suspect class and they have not alleged the impairment of a fundamental constitutional right. Their claim must be tested, therefore, 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. Constitutional attacks on the rationality of economic or social welfare legislation must rebut the presumption of constitutionality that attaches to such legislation. " '[T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.' " Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978), quoting Usery v. Turner Elkhorn Mining Co., supra, 15; see also Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 28, 523 A.2d 467 (1987); Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 186, 479 A.2d 1191 (1984); Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 82-83, 440 A.2d 792 (1981). The plaintiffs have not satisfied this heavy burden. It was not arbitrary or irrational for the legislature to decide that its goal of enhancing the quality of the state's educational system as a whole required even teachers who had attained permanent status to continue to sharpen their educational skills. We thus conclude that the act does not violate the plaintiffs' rights to substantive due process. II Finally, the plaintiffs argue that the act violates the constitutional prohibition against impairment of the obligation of their contracts with their respective employers, the local and regional boards of education. U.S. Const., art. I, § 10. Their claim of impairment has three predicates, not all of which are equally persuasive. First, General Statutes (Rev. to 1989) § 10-151 (c) and (d) creates a continuing obligation on the part of each board of education to employ the plaintiffs while they are properly certified. Second, General Statutes (Rev. to 1989) § 10-145 precludes a board of education from continuing to employ or pay a teacher who does not possess a state-issued certificate. Third, any substantial impairment of their continued access to state-issued certification interferes with their employment relationships with their boards of education. We have no reason to question the first two of these predicates. With respect to the third, however, we conclude that the plaintiffs' employment contracts have not been unconstitutionally impaired by making their teaching certificates, and hence their continued employability, conditional upon their completion of nine CEUs every five teaching years, as required by General Statutes (Rev. to 1989) § 10-145b (i). "Unlike other provisions in [article I], it is well-settled that the prohibition against impairing the obligation of contracts is not to be read literally." Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 502, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987); see also Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 428, 54 S. Ct. 231, 78 L. Ed. 413 (1934). "Thus, a finding that there has been a technical impairment is merely a preliminary step in resolving the more difficult question whether that impairment is permitted under the Constitution." United States Trust Co. v. New Jersey, 431 U.S. 1, 21, 97 S. Ct. 1505, 52 L. Ed. 2d 92, reh. denied, 431 U.S. 975, 97 S. Ct. 2942, 53 L. Ed. 2d 1073 (1977). "The threshold question is whether the state law has in fact operated as a substantial impairment of a contractual relationship. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983). Factors to be weighed are the severity of the impairment, the extent to which it frustrates a party's reasonable contractual expectations and the extent to which the subject matter of the impairment has been regulated in the past. Id. If the impairment is minimal the inquiry may end at the embryonic stage. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245, 98 S. Ct. 2716, 57 L. Ed. 2d 727, reh. denied, 439 U.S. 886, 99 S. Ct. 233, 58 L. Ed. 2d 201 (1978). If, however, the impairment is severe, the legislation will be subjected to an increased level of scrutiny." Schieffelin & Co. v. Department of Liquor Control, supra, 177-78. Viewed from this perspective, the plaintiffs' claim of impairment of contract obligation is, in the present context, virtually indistinguishable from their substantive due process claims, which we have already rejected in part IB of this opinion. The changes wrought by General Statutes (Rev. to 1989) § 10-145b (i) do not constitute a constitutionally unacceptable impairment of the plaintiffs' teaching contracts. We are hard put to characterize that impairment as anything other than minimal. Furthermore, "[ejven a substantial impairment of a contractual relationship may be justified if the state regulation has a significant and legitimate purpose. Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 403; United States Trust Co. v. New Jersey, supra, 22." Schieffelin & Co. v. Department of Liquor Control, supra, 182. As we have noted above, the act has the significant, legitimate purpose of upgrading the state's public education system. Thus, even if we were to conclude that the act significantly impairs the plaintiffs' contractual relationships, the state has a sufficient interest in exercising its police power in this area for the act to pass constitutional muster. The plaintiffs finally claim that the state was constitutionally obligated to pursue legislative alternatives that would have avoided "the draconian impact of invalidating 'permanent' certificates." They argue that the General Assembly could have encouraged teachers to undertake continuing education voluntarily, by financial incentives, by restricting funds to those who do not apply for professional educator certificates or by a "myriad" of other devices. We recognize that "a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purpose equally well." United States Trust Co. v. New Jersey, supra, 31. We do not, however, agree that the means chosen by the legislature were so "drastic" or the suggested alternatives so likely to succeed that the legislature's course of action constituted an unconstitutional impairment of the plaintiffs' contracts of employment. The question reserved to this court was: "Whether [General Statutes (Rev. to 1989) § 10-145b (i)J as it applies to holders of standard or permanent certificates is unconstitutional under Article First, Section 8, amended by Article XVII of the Connecticut Constitution, and/or Article First, Section 10 of the United States Constitution, and/or the Fifth Amendment of the United States Constitution and/or the Fourteenth Amendment to the United States Constitution." For the reasons stated above, we answer "No" to the reserved question. No costs will be taxed in this court to either party. In this opinion the other justices concurred. General Statutes (Rev. to 1989) § 10-145b (i) provides: "Unless otherwise provided in regulations adopted under section 10-145d, in not less than three years nor more than ten years after the issuance of a provisional teaching certificate pursuant to subsection (d) of this section and upon the statement of the employing board of education that the person who holds or has held a provisional certificate has successfully completed course work pursuant to subsection (h) or (j), as appropriate, and has a record of competency in the discharge of his or her duties during such provisional period, the state board, upon receipt of a proper application, shall issue to a person who holds or has held a provisional certificate, a standard teaching certificate prior to July 1, 1989, and a professional educator certificate on or after said date. A signed recommendation from the superintendent of schools for the local or regional board of education or by the superintendent of a nonpublic school approved by the state board of education shall be evidence of competency. Such recommendation shall state that the person who holds or has held a provisional teaching certificate has successfully completed at least three school years of satisfactory teaching for one or more local or regional boards of education or approved nonpublic schools. Any person holding a standard or permanent certificate on July 1, 1989, shall be eligible to receive upon application a professional educator certificate to replace said standard or permanent certificate. On and after July 1, 1989, standard and permanent certificates shall no longer be valid." The legislature initially enacted this provision as Public Acts, Spec. Sess., May, 1986, No. 1, § 23 (i), and then by Public Acts 1988, No. 88-273, changed its effective date from July 1, 1988, to July 1, 1989. The legislature had not yet amended the act prior to the reservation and, therefore, the record refers to No. 86-1. We will refer to the challenged provision as General Statutes (Rev. to 1989) § 10-145b (i) throughout this opinion. The question of law reserved for our advice is: "Whether [General Statutes (Rev. to 1989) § 10-145b (i)] as it applies to holders of standard or permanent certificates is unconstitutional under Article First, Section 8, amended by Article XVII of the Connecticut Constitution, and/or Article First, Section 10 of the United States Constitution, and/or the Fifth Amendment of the United States Constitution and/or the Fourteenth Amendment to the United States Constitution." General Statutes (Rev. to 1989) § 10-145 provides in pertinent part: "No teacher, supervisor, administrator, special service staff member or school superintendent shall be employed in any of the schools of any local or regional board of education unless such person possesses an appropriate state certificate, nor shall any such person be entitled to any salary unless such person can produce such certificate dated previous to or the first day of employment." General Statutes (Rev. to 1985) § 10-144o provides in pertinent part: "As used in section 10-145 to 10-159a, inclusive . . . "(2) 'Provisional certification period' means an initial period of no less than three years, during which the applicant for a standard teaching certificate performs the duties of a teacher; "(3) 'Provisional teaching certificate' or 'provisional certificate' means a license to teach during the provisional certification period, issued to a person who meets in full the preparation requirements of the state board of education; "(4) 'Standard teaching certificate' or 'standard certificate' means a license to teach issued to one who has successfully completed no less than three years of satisfactory teaching experience and fulfilled other requirements while holding a provisional certificate or its equivalent." The predecessor to the "standard teaching certificate" was the "permanent teaching certificate," as held by the plaintiff Strain. See General Statutes (Rev. to 1975) § 10-145a (5). General Statutes (Rev. to 1989) § 10-145b (m) provides: "The state board of education may revoke any certificate issued pursuant to this section for any of the following reasons: (1) The holder of the certificate obtained such certificate through fraud or misrepresentation of a material fact; (2) the holder has persistently neglected to perform the duties for which certification was granted; (3) the holder is professionally unfit to perform the duties for which certification was granted; (4) the holder is convicted in a court of law of a crime involving moral turpitude or of any other crime of such nature that in the opinion of the board continued certification would impair the standing of certificates issued by the board; or (5) other due and sufficent cause. Revocation shall be in accordance with procedures established by the state board of education pursuant to chapter 54." General Statutes (Rev. to 1989) § 10-144o (2), (5) and (7) provide: "(2) 'Initial educator certificate' means a license to teach issued on or after July 1,1989, to a person who has successfully met the preparation and eligibility requirements specified by the state board of education for entrance into a beginning educator program . . . "(5) 'Provisional educator certificate' means a license to teach, issued on or after July 1, 1989, to a person who (A) has successfully completed the beginning educator program and not less than one school year of successful teaching in a public school or (B) has completed at least three years of successful teaching in a public or nonpublic school approved by the state board of education or appropriate governing body in another state within ten years prior to application for such provisional educator certificate . . . "(7) 'Professional educator certificate' means a license to teach issued on or after July 1,1989, initially to a person who has successfully completed not less than three school years of teaching in a public school or nonpublic school approved by the state board of education while holding a provisional educator or provisional teaching certificate and has successfully completed not fewer than thirty semester hours of credit beyond a bachelor's degree. Said certificate shall be continued every five years after issuance upon the successful completion of not less than nine continuing education units or their equivalent, as defined by the state board of education, during each successive five-year period. The successful completion of continuing education units shall only be required for certified employees of local and regional boards of education." The renewal requirement applies only to "employees of local and regional boards of education." General Statutes (Rev. to 1989) § 10-145b (l). There fore, years that a professional educator certificate holder is not employed by a local or regional board of education do not count against the five years for which the certificate is valid. General Statutes (Rev. to 1989) § !0-146b also provides for an extension of time to complete the requirements in instances of hardship and § 10-145b (n) provides for appeal to the board and to the Superior Court for aggrieved individuals. The state and the local or regional boards of education will share the cost of offering the CEUs and each local or regional board must make available within their district no fewer than eighteen units per year. The teachers and their collective bargaining representatives will have input into the choice of the subject matter, time and location of the classes. General Statutes (Rev. to 1989) § 10-145b (l) (1). For those who must exchange certificates, the state even waives the $15 application fee. General Statutes (Rev. to 1989) § 10-145b (p). The plaintiffs claim that the act takes property without due process in violation of the amendments to the fourteenth amendment to the United States constitution and article first, § 8, as amended by article XVII of the amendments to the Connecticut constitution. Because the language of the provisions are similar, and because the plaintiffs " '[have] proffered no argument that the rights afforded to [them] by the federal and state constitutions are in any way distinguishable with respect to the substantive issue that [they have] raised' State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987); State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985); we do not independently undertake such an analysis. See also New Haven v. United Illuminating Co., 168 Conn. 478, 494 n.8, 362 A.2d 785 (1975). See footnote 4, supra. As of July 1, 1989, the teachers must give up their standard and permanent teaching certificates. No teacher will suffer any termination as of that date, however, unless he or she fails to exchange the certificate. The process of exchange depends only on the filing of a proper application and the receipt of a new certificate requires only a ministerial act. No issue of nonrenewal can arise for five more years, and such an event, according to the statute, will occur only if the holders have then arguably failed to complete the required CEUs. The defendants admitted as much in open court. The present record lends no support to any speculative concern that the renewal mechanism provided by the act will be used by the state to revoke certificates for unauthorized reasons. While the plaintiffs' brief is unclear about whether a substantive due process argument has been distinctly raised, doubts raised about the scope of their brief at oral argument persuade us to address this issue briefly. This court and, to a certain extent, the United States Supreme Court, have recognized a right to education requiring a heightened scrutiny of state statutes infringing on the right. Plyler v. Doe, 457 U.S. 202, 223-24, 102 S. Ct. 2382, 72 L. Ed. 2d 786, reh. denied, 458 U.S. 1131, 103 S. Ct. 14, 73 L. Ed. 2d 1401 (1982); Horton v. Meskill, 172 Conn. 615, 648-49, 376 A.2d 359 (1977). The state constitutional right to free public education; Conn. Const., art. 8, § 1; protects only the rights of the recipients of educational services to a substantially equal educational opportunity. Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984); Horton v. Meskill, supra, 649. Neither the state nor the federal constitution requires a stricter scrutiny merely because the regulation affects teachers. If anything, a fundamental right to equal educational opportunity supports the rationality of legislative efforts to improve the quality of that education. Article one, § 10, of the United States constitution provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts General Statutes (Rev. to 1989) § 10-151 (c) and (d) provide in pertinent part: "(c) The contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section; otherwise the contract of such teacher shall be continued into the next school year unless such teacher receives written notice by April first in one school year that such contract will not be renewed for the following year. . . . "(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 com petent 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." The plaintiffs stress that this is especially the case with respect to the named plaintiffs who are tenured and hold standard and permanent certificates.

Covello, J. This is an appeal from a decision of the commission on hospitals and health care (commission). Examination of the record discloses that on November 17,1982, the defendant Medical Management Corporation (MMC) filed a request with the commission pursuant to General Statutes § 19-73m, to establish an ambulatory surgical center (Surgicenter) in Bridgeport. The commission conducted hearings on MMC's application on December 21, 22 and 23,1982. On January 3,1983, the commission issued its decision approving MMC's application for the Surgicenter. On January 31, 1983, the plaintiff, Park City Hospital, appealed this decision to the Superior Court pursuant to General Statutes § 19a-158 and § 4-183. On March 14, 1985, the defendant commission filed its answer in which it denied that the plaintiff was aggrieved. On August 7, 1985, the plaintiff applied to the trial court for an order to show cause why a stay of the commission's decision should not be granted during the pendency of this appeal. The plaintiff further sought an order restraining MMC from proceeding further with the Surgicenter while the appeal was pending. The trial court, Meadow, J., granted an ex parte order restraining further implementation of the MMC decision pending the outcome of the plaintiff's application for a stay and a restraining order. On August 9, 1985, the trial court rescinded the ex parte order. On August 12,1985, the plaintiff filed an amended application for a stay and a restraining order making the further claim that its application to the court was made pursuant to General Statutes § 4-183 (c). On August 15, 1985, hearings commenced on the plaintiffs application for a stay. At that time, the trial court, Burns, J., declared that the proceedings would also embrace the jurisdictional issue of the plaintiffs aggrievement even though no motion to dismiss the appeal was in the file. The hearing was continued to August 27, 1985, and ultimately concluded on October 15, 1985, at which time the parties were given an opportunity to file briefs. On March 5,1986, the plaintiff withdrew its application for a stay. On March 7, 1986, the trial court filed its memorandum of decision in which it concluded that the plaintiff had not established that it was aggrieved. Since aggrievement is a prerequisite for an appeal to the Superior Court, the trial court concluded that it was without jurisdiction to entertain the appeal and, therefore, dismissed the action. On the plaintiff's appeal, the Appellate Court (one judge dissenting) found no error in the trial court's proceedings. Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn. App. 413, 542 A.2d 326 (1988). We thereafter granted certification limited to the issue of whether the Appellate Court erred in affirming the trial court's dismissal suo motu of the plaintiff's appeal for lack of aggrievement as incident to the plaintiffs application for a stay of execution. We affirm the decision of the Appellate Court. The plaintiff first argues that its application for a stay of execution and temporary restraining order was preliminary in nature and akin to a proceeding for a temporary injunction. As such, it was not necessary to take up the matter of aggrievement and ultimately to dismiss the appeal. We agree that it was not necessary at this stage in the proceedings to take up the matter of aggrievement but conclude that the court was not in error in doing so. An application for a stay of execution of an order during the pendency of an appeal calls upon an exercise of the trial court's general equitable powers. "These considerations [in granting a stay] involve essentially the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits. See Stocker v. Waterbury, 154 Conn. 446, 451, 226 A.2d 514 (1967); Sisters of St. Joseph Corporation v. Atlas Sand, Gravel & Stone Co., 120 Conn 168, 176-77, 180 A. 303 (1935)." Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 458, 493 A.2d 229 (1985). "Among the 'equities' to be placed on the scales, of course, are the general equitable considerations which are involved in the issuance of a temporary injunction to preserve the status quo pendente lite." Id., 460. While § 4-183 (c) authorizes either the administrative agency or the reviewing court to grant a stay "upon appropriate terms," the Superior Court's exercise of its equitable powers in such instances is in fact much broader, being derived from General Statutes § 52-1. This latter provision authorizes the Superior Court to "administer legal and equitable rights and apply legal and equitable remedies in favor of either party in one and the same civil action [including administrative appeals] so that legal and equitable rights of the parties may be enforced and protected in one action." The Superior Court's jurisdiction to act upon an application for a stay and a restraining order, being derived from its general equitable powers as enumerated in § 52-1, did not require the court to determine whether it was dealing with an aggrieved party as a predicate to exercising jurisdiction over the stay proceedings. This is not to say, however, that the court was in error in deciding the issue of aggrievement at this stage in the proceedings. "Appeals to the courts from decisions of administrative officers exist only under statutory authority. Sheridan v. Planning Board, [159 Conn. 1, 10, 266 A.2d 396 (1969)]; Bardes v. Zoning Board, 141 Conn. 317, 318, 106 A.2d 160 [1954]; Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172 [1946]." Nader v. Altermatt, 166 Conn. 43, 53, 347 A.2d 89 (1974). In this instance, the statutory authority is General Statutes (Rev. to 1983) § 4-183 (a) which provides in relevant part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a decision in a contested case is entitled to judicial review by way of appeal . . . . " (Emphasis added.) We have stated that "fp]leading and proof of aggrievement [is] . a prerequisite to the trial court's jurisdiction over the subject matter of the plaintiff's appeal. Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 501, 264 A.2d 566 [1969]; Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 509, 242 A.2d 705 [1968]." (Emphasis added.) Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Ordinarily, a challenge to the court's jurisdiction is raised by the filing of a motion to dismiss. However, "[w]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion. Mardl v. A. H. Merriman & Sons, Inc., 115 Conn. 678, 682, 163 A. 411 [1932]; Palmer v. Reeves, 120 Conn. 405, 409, 182 A. 138 [1935]; McGee v. Dunnigan, 138 Conn. 263, 268, 83 A.2d 491 [1951]; see Tyler v. Board of Zoning Appeals, 145 Conn. 655, 662, 145 A.2d 832 [1958]." (Emphasis added.) Masone v. Zoning Board, 148 Conn. 551, 554, 172 A.2d 891 (1961). Thus, although a threshold determination of aggrievement was not necessary in order to take up the application for a stay of execution, the trial court was well within its authority to do so, inasmuch as such a determination impacted upon the court's ultimate jurisdiction to hear the appeal. The plaintiff further claims that it was not given adequate notice that the court was going to consider the matter of aggrievement thereby implicating constitutional questions of procedural due process. We do not agree that this was the case. The trial court disclosed to the parties on August 15, 1985, that it was going to consider the matter of aggrievement and the court's possible lack of subject matter jurisdiction to entertain the plaintiff's appeal. The plaintiff made no objection. Thereafter, the question of aggrievement was pursued not only on August 15, but also in subsequent court proceedings held on August 27 and October 15, 1985. The parties were given an opportunity following the hearings to file briefs on the issue. In view of the trial court's more than adequate notice, and a full and meaningful opportunity thereafter to be heard on the merits of the aggrievement issue, we conclude that the plaintiff's due process claim is simply without merit. See Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176-77, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). The decision of the Appellate Court is affirmed. In this opinion Healey, Glass and Hull, Js., concurred. General Statutes (Rev. to 1981) § 19-73m, as amended by Public Acts 1982, No. 82-415, provides in part: "[A]ny health care facility or institution . . . proposing a capital expenditure . . . having a cost exceeding limits set by the Secretary of Health and Human Services . . . shall submit a request for approval of such expenditure to the commission . . " This section was subsequently transferred to Chapter 368c of the General Statutes, § 19a-155. General Statutes (Rev. to 1983) § 19a-158 provides in part: "Any health care facility or institution . . . aggrieved by any decision of said commission . . . may appeal therefrom in accordance with the provisions of section 4-183, except venue shall be in the judicial district in which it is located." General Statutes (Rev. to 1983) § 4-183 provides in part: "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . "(b) Proceedings for such appeal shall be instituted by filing a petition in superior court . . . . " General Statutes § 4-183 (c) provides: "The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms." Practice Book § 256 provides in part: "For purposes of these rules, administrative appeals are civil actions. Whenever these rules refer to civil actions, actions, civil causes, causes or cases, the reference shall include administrative appeals . . . . " Practice Book § 142 provides in part: "Any defendant, wishing to contest the court's jurisdiction . . . must do so by filing a motion to dismiss within thirty days of the filing of an appearance. ." Practice Book § 145 provides: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." (Emphasis added.) At the proceedings on August 15, 1985, the trial court stated: "It's a jurisdictional matter. Unless there is a finding of aggrievement, the court is bound by the numerous cases, the Baldwin Piano [& Organ Co. v. Blake, 186 Conn. 295, 441 A.2d 183 (1982)] case, if you will, and numerous others that unless the court can make a finding that the plaintiff is aggrieved, and [that] has been alleged in the amended application [for a stay], as well as in the original application, as well as in the original appeal . I take the position, which may be a strict constructionist, if you will, the court has no jurisdiction to render any relief whatsoever, has no jurisdiction to address the issue in chief, and has no authority to grant any relief ancillary thereto by way of stay. . . . [N]umerous cases . . . say once the issue has been raised, and the court can raise it suo motu with respect to the jurisdiction matter . . . that has to be decided before I can take one further step. . . . "I don't think I can differentiate between aggrievement for the purpose of this hearing, and aggrievement for the purpose of the hearing in chief, if you will. I go back to what I said before about being a strict constructionist on jurisdictions. I think the cases are quite clear that I cannot take one step further unless an issue of jurisdiction has been resolved, and I have no jurisdiction to hear the matter unless aggrievement has been established. . . . "I raised the issue of aggrievement. It was raised in the pleadings, and I would presume that that would be the first order of business, to get something on the record concerning aggrievement."

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

The defendant's motion for an order by this court to set aside the judgment of the trial court and to enter a judgment of not guilty or, in the alternative, for an order to the trial judge to take such action as necessary to complete the record in the appeal from the Superior Court in Middlesex County is denied.

House, C. J. The defendant was found guilty by a jury of the crime of murder in the second degree and appealed from the judgment rendered on the verdict. He assigned as error and has briefed three evidential rulings of the court admitting into evidence the in-court identification of the defendant, rulings permitting a witness to qualify as an expert in fingerprint identification and to testify as to his opinion, and has made a claim that the evidence offered by the state was insufficient to support the verdict. A brief review of the evidence will serve to place the other claims of error in perspective before we consider them in detail; so, we first consider the defendant's contention that the state's evidence was not sufficient to support the jury's verdict. Such a claim is tested by the evidence printed in the appendices to the briefs. State v. Saia, 167 Conn. 286, 287, A.2d ; State v. Johnson, 166 Conn. 439, 440, 352 A.2d 294. On January 26, 1970, Ross Thomas, a clinical psychologist, occupied a two-room apartment which he used as an office-dwelling at 442 Farmington Avenue in Hartford. At about 9:45 p.m. on that date, Joseph N. Tobin, Jr., a director of special services at the Institute of Living in Hartford, visited Thomas. While he was there, Thomas received a telephone call from a person who wished to see him. At about 1:15 a.m. a person, identified in court by Tobin as the defendant, arrived. Tobin remained with the two men in the well-lighted room for about fifteen minutes and then left. The defendant was wearing an outer coat of brownish material which he kept on while he was in the apartment. At about 5:40 a.m., Officer Walter S. Parker of the Hartford police department saw the defendant at the Quartet Restaurant on Farmington Avenue. He had previously seen him at a gasoline station about two blocks west of 442 Farmington Avenue. While at the restaurant, Officer Parker received information about a possible crime and went to the Thomas apartment at 442 Farmington Avenue where he discovered the body of Thomas, who had been twice shot through the head by .32-caliber bullets fired at close range. George A. Kendall, Jr., worked at a gasoline station on Park Street, and, at about 3 a.m. on January 27, the defendant came to the station and stayed for about one-half hour before leaving by taxi. Kendall noticed that the defendant's trench coat was spotted with blood. William F. Best was a taxi driver. He answered a call to Kendall's gasoline station on the morning of January 27 and transported the defendant to the Quartet Restaurant on Farmington Avenue. Another taxi driver, Irving S. Caplan, at about 6 a.m., answered a call and transported the defendant from the Quartet Restaurant to the Hilton Hotel in Hartford. At the hotel, the defendant was stopped at the registration desk by three police officers. There was a spattering of blood on his trench coat. He was searched and a revolver was removed from his pocket. When taken, the revolver contained two spent shells. The defendant was arrested for carrying a pistol without a permit. The Thomas apartment was inspected by the police and tests were made for latent fingerprints. One was found on an ashtray and was identified by Detective Michael Amaruso as made by the defendant. An autopsy disclosed that the death of Thomas was caused by bullet wounds to the head. The bullets were recovered and turned over to Walter E. Perldns, director of the Hartford crime laboratory, who conducted ballistics tests and testified that in his opinion the bullets recovered from Thomas' body had been fired from the revolver which had been taken from the possession of the defendant at the Hilton Hotel. Several doctors testified as to their findings and opinions with respect to the defendant's mental condition, including Louis Gold, a psychiatrist, who testified • that Lally did not lack the capacity to understand the wrongfulness of his behavior or to conform his behavior to the requirements of the law. This is but a brief summary of the evidence which the jury had for consideration, but it suffices to show that there was no merit to the defendant's motion to set aside the verdict on the ground that it was against the evidence, and to show that the court committed no error in denying the motion. The defendant's first several assignments of error are addressed to rulings of the court which permitted witnesses Tobin, Kendall, Best and Caplan to make an in-court identification of the defendant and to describe their respective contacts with him on the night of the homicide. The rulings were all made by the court in a preliminary hearing in the absence of the jury on the defendant's motion to suppress the in-court identification. The defendant did not brief the assignment of error addressed to Caplan's testimony and identification so it is considered to have been abandoned. State v. Croom, 166 Conn. 226, 232, 348 A.2d 556; State v. Brown, 163 Conn. 52, 55, 301 A.2d 547. While the testimony of each of the other three witnesses related to the particular circumstances of his contact with the defendant, each of them, at the trial, identified the defendant as the person with whom he had contact on the early morning of January 27,1970, and testified as to the circumstances of that contact and as to the opportunity each had to observe him. In each instance the court concluded from the testimony at the preliminary hearing that each witness' in-eourt identification of the defendant was based upon his recollection of his contact with the defendant on the early morning in question. The defendant claims that the court should not have permitted the in-court identification by the three witnesses because each of them had previously identified the defendant to the police from photographs shown to each of them by the police in the absence of the defendant and his counsel. The find ing of the court discloses that on the morning of the homicide each of the three witnesses went to the police station and each, separately, was shown several photographs, including one of the defendant, and each witness selected the photograph of the defendant as the man with whom he had had contact earlier in the morning—Tobin at Thomas' apartment, Kendall at the service station, and Best in conveying the defendant by taxi from the station to the restaurant. It is the contention of the defendant, relying upon and quoting from the decision of the United States Supreme Court in Wade v. United States, 388 U.S. 218, 235, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, that, since he was already under arrest, this pretrial identification by photograph for the police in the absence of the defendant and counsel for him violated his constitutional rights and rendered inadmissible the courtroom identification as "the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial" because "the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him." The defendant lays much stress on the fact that all of the photographs submitted to the identification witnesses by the police were not preserved and were not made available for examination in court. He contends that the photographs used in a pretrial identification procedure must be introduced as part of the state's ease in order to satisfy the burden of clear and convincing proof that the in-court identification was not "tainted," and that if the state fails to introduce them, then, as a matter of law, the trial court should rule inadmissible any in-court identification testimony by a witness. Obviously the retention and preservation for examination at trial of the photographs used at a pretrial identification is a highly desirable practice and, depending upon the circumstances, may greatly aid the prosecution in sustaining its burden of proof or, on the other hand, may mitigate the dangers of misidentifieation owing to the suggestiveness of the photographs themselves. Although the practice is highly desirable, it cannot be held, as a matter of law, to be a necessary condition precedent to a permissible in-court identification. The short answer to the defendant's contention lies in the finding of the court as stated in its ruling: "I conclude that each of the witnesses had an independent basis for making the identification apart from anything which occurred at the police station, and I am not aware of anything which occurred at the police station which was in any way unduly suggestive. Therefore, the conclusion of the Court is that each of them had an independent basis to make the in-court identification, and the objection is overruled in that respect." The court's unattacked finding of fact as to the identification by photograph procedure at the police station fully supports its conclusion. The procedure followed and the ruling of the court were fully in accord with the holdings of this court in State v. Duffen, 160 Conn. 77, 273 A.2d 863, cert. denied, 402 U.S. 914, 91 S. Ct. 1397, 28 L. Ed. 2d 657, and State v. Oliver, 161 Conn. 348, 288 A.2d 81. In the Oliver ease, we observed (p. 358): "We also note the absence at the present time of any definitive ruling from the United States Supreme Court on the question whether the holding of the Wade ease is applicable to pretrial identification of a suspect by the use of photographs without the presence of the suspect's counsel." That definitive ruling has now been made in the case of United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619. In the present case, Lally had been arrested but a few hours before for carrying a pistol without a permit. He was in custody but had not as yet been informed against. The photographic identification process was still part of the police investigative procedure. In the Ash case, Ash had already been indicted. It was during the prosecutor's preparation for trial that he used a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. It was this post-indictment identification upon which Ash based his claim that he was denied the right to counsel at a "critical stage" of the prosecution. Nevertheless, the Supreme Court did not extend the scope of the Wade decision and concluded (p. 321): "We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender." In the light of our prior cases and the holding in United States v. Ash, supra, there was clearly no error in the rulings of the court relating to the witnesses' identification of the defendant. The defendant has also assigned as error the ruling of the court that Michael Amaruso qualified as an expert witness on the subject of fingerprints and could testify to his discovery of a fingerprint at Thomas' apartment which he concluded had been made by the defendant. Before making the ruling, the court heard testimony as to the witness' years of service in the police department, in the identification division, the training he received in the field of fingerprinting from an experienced expert, his course of study conducted by the federal bureau of investigation, his professional membership, and further studies. " ' "The determination of the qualification of an expert is largely a matter for the discretion of the trial court." Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370; Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73. The trial court's decision is not to be disturbed on appeal "unless that discretion has been abused, or the error is clear and involves a misconception of the law." 31 Am. Jur. 2d 531, Expert and Opinion Evidence, § 31.' Siladi v. McNamara, . . . [164 Conn. 510, 513, 325 A.2d 277]." Nash v. Hunt, 166 Conn. 418, 425, 352 A.2d 773. We also find no abuse of discretion in this ruling of the court. There is no error. In this opinion the other judges concurred.

The defendants' motion to dismiss the appeal of the plaintiff Helen Dahlmeyer from the Superior Court in New Haven County is granted.

The defendant's motion to dismiss the appeal from the Superior Court in Fairfield County is denied without prejudice to renewing it upon the same grounds pending the determination by the committee to accept or reject finally the draft finding.

Upon stipulation of the parties, it is ordered that the appeal of the defendants Henry A. Singer et al. dated October 31, 1974, having been withdrawn, the defendant Hyde Park Company, on or before February 20, 1975, withdraw its appeal dated November 21, 1974, leaving as the record on appeal here only the appeal of the defendants Singer et al. dated November 29, 1974, and filed December 2, 1974, and the cross appeal of the defendant Hyde Park Company dated and filed December 11, 1974.

Shapiro, J. The plaintiffs brought this action to recove/ for property damage alleged to have been sustained in a collision as the result of the negligence of the defendant automobile operator Iraj Honarvar and the vehicle's owner, defendant Christine A. Geiger. The defendant Geiger filed a counterclaim. The jury returned a verdict for the defendants on the plaintiffs' complaint and a verdict for the defendant Geiger on her counterclaim. From the judgment rendered thereon the plaintiffs have appealed. They have assigned error in the court's denial of their motion to strike and expunge, in the court's refusal to make certain findings, in the court's charge to the jury, in rulings on evidence, and in the court's refusal to set the verdict aside upon the claim that it was contrary to the law and evidence. However, we need consider only error claimed concerning a portion of the charge to the jury which is dispositive of the appeal. Error assigned to the charge is to he tested by the claims of proof as they appear in the finding. Practice Book § 635; Cicero v. E.B.K., Inc., 166 Conn. 490, 492, 352 A.2d 309; Gosselin v. Perry, 166 Conn. 152, 155, 348 A.2d 623. The plaintiffs offered evidence to prove and claimed to have proved the following facts: On December 29, 1969, the plaintiff, Ferndale Dairy, Inc., hereinafter Ferndale, was the owner of a tractor trailer which was being operated eastbound, in the extreme right-hand lane, on the Connecticut' Turnpike, a six-lane public highway with three eastbound and three westbound lanes. It had begun to snow about 11:00 p.m. and turn to freezing rain and the highway was covered with snow and ice and was slippery. The defendant Geiger was a passenger in her own car being operated by the defendant Honarvar which also was proceeding easterly in about the center of the highway. Both vehicles, just prior to the accident, were traveling thirty to thirty-five miles per hour. The Geiger car began to skid. It began to fishtail and skidded across the highway .into the extreme left lane, then back across the highway into the right lane. Thereupon the right front of the Ferndale vehicle struck the left rear side of the Geiger car. The point of impact was in the right lane. The operator of the Ferndale vehicle had slowed down and applied his brakes gently and began to turn to the left and in attempting to avoid hitting the Geiger car his right front came into contact with the left rear side of the car. The plaintiffs, in .their complaint, included allegations that Honarvar changed lanes when it was not safe to do so and that he failed to signal his intention to change the position of the Geiger car. The court charged the jury regarding General Statutes § 14-236, which provides in relevant part as follows: "When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety . . . ." After referring to conflicting testimony of the plaintiffs and the defendants, the court instructed the jury as follows: "If you believe the defendants' version as to a dead stop on the shoulder entirely off the highway, this would end your consideration of this particular statute." The court also charged the jury regarding General Statutes § 14-242 and 14-244. Section 14-242 provides in relevant part as follows: "(a) No person shall . . . turn a vehicle from a direct course or move right or left upon a highway unless such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner provided in section 14-244. (b) A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning." General Statutes § 14-244 provides the means by which such a signal shall be given. Again, the jury were instructed: "If the defendants, according to their version, and you believe their version, were at a dead stop and completely on the shoulder of the highway at the time the collision occurred, this statute would have no application." It may be that the Geiger car and the Ferndale vehicle were involved in skidding on the highway not due to any voluntary act on either driver's part. The defendants Geiger and Honarvar offered evidence to prove and claimed to have proved the following facts: The Geiger car began to skid and at first Honarvar did nothing. The car veered to the right, then to the left completely across the road, then back in front of the Ferndale vehicle and to the right side of the highway. When Honarvar felt the car had a grip on the road, he started to pump his brakes and brought it to a stop parallel to the right side of the highway. Honarvar knew there was trafile behind him because he saw headlights behind him for fifteen to twenty minutes. He moved off the road because he felt that this was the safest move to make so as to avoid any possible hazard of collision. Honarvar brought the car to a complete stop on the shoulder of the highway. While so located, one to ten seconds later, the Geiger car was struck in the rear by the Ferndale vehicle and was forced out into the right lane of the highway by the impact. Thus, it became a question of fact, to be determined by the jury in applying established legal principles whether the manner in which the Geiger ear was operated and brought to a stop was the proximate cause of the accident. "It is elementary that, in a negligence case, a causal relation between a defendant's wrongful conduct and a plaintiff's injury must be established in order for the plaintiff to recover damages." Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 27, 266 A.2d 370; Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22, 213 A.2d 449; Mahoney v. Beatman, 110 Conn. 184, 188, 147 A. 762. Ordinarily, it is a question of fact whether the negligence of a defendant was the proximate cause of a plaintiff's injuries. Miranti v. Brookside Shopping Center, Inc., supra; McDowell v. Federal Tea Co., Inc., 128 Conn. 437, 440, 23 A.2d 512. The test is whether the defendant's conduct was a substantial factor in causing the plaintiff's injuries. Hofacher v. Fox, 142 Conn. 179, 184, 112 A.2d 217. To be such a factor the cause must have continued down to the moment of the damage, or, at least, down to the setting in motion of the final active injurious force which immediately produced or preceded the damage. Mahoney v. Beatman, supra, 195. See Restatement (Second), 2 Torts § 433 (b). The effect of the charge as given in the present case summarily foreclosed the plaintiffs' right to have the jury exercise their function in reaching a determination upon disputed facts. The jury should have been allowed to determine whether Honarvar's conduct in stopping constituted a violation of General Statutes §14-236, 14-242 and 14-244, and if there were such a violation, whether that proximately caused the plaintiffs' damages. The charge was tantamount to a directed verdict regarding issues in which there existed room for a reasonable difference of opinion on the issue of proximate cause. This constituted harmful error. In view of this conclusion, it is unnecessary to consider the remaining assignments of error. There is error, the judgment on the complaint and on the counterclaim is set aside and a new trial is ordered. In this opinion the other judges concurred. The complaint alleges that the plaintiff Truck Leasing Association was the owner of the tractor trailer and that it was leased by Ferndale. Since the finding recites that Ferndale was the owner we shall so refer to the vehicle's ownership.

The named plaintiff's motion dated October 21,1974, for a review of the trial court's order denying the plaintiff's motion to stay dated October 9, 1974, in the appeal from the Superior Court in New Haven County is dismissed. The motion by the plaintiff city of New Haven dated October 30, 1974, for a review of the trial court's order denying the plaintiff's motion to stay dated October 9, 1974, in the appeal from the Superior Court in New Haven County is dismissed. The motion by the named plaintiff dated October 21, 1974, in the appeal from the Superior Court in New Haven County for an order to stay the defendants' arbitration proceedings is dismissed. Horace F. Trotta, in support of the motion. Submitted November 1 decided November 26, 1974 The motion hy the plaintiff city of New Haven dated October 30,1974, in the appeal from the Superior Court in New Haven County for an order to stay the defendants' arbitration proceedings is dismissed.

It appearing that the state has failed to defend with proper diligence against the defendant's appeal, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that, unless the state files its brief on or before February 3, 1975, the judgment of the Superior Court in New Haven County finding the defendant guilty as charged is set aside and the case is remanded thereto with direction to render judgment that the defendant is not guilty and to order that he be discharged.

Covello, J. This is an appeal from a declaratory ruling of the department of public utility control (DPUC). It comes to us by way of reservation from the Superior Court. The dispositive issue is whether DPUC correctly concluded that General Statutes § 16-243e required the plaintiff, Connecticut Light and Power Company (CL&P), to purchase all of the electrical output of the defendant Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA) at the so-called "municipal rate." We conclude that General Statutes § 16-243e does not require this and therefore order a remand for further proceedings. Examination of the record discloses that on June 8, 1987, SCRRRA filed a petition with DPUC pursuant to General Statutes § 4-176, 16-243a (c), and 16-243e. The petition sought a declaratory ruling determining the amounts and the prices that CL&P would be required to pay for the electrical output generated by the SCRRRA municipal solid waste disposal facility. In accordance with General Statutes § 16-2 (c), the matter was assigned to a panel of three of DPUC's five commissioners for a hearing and decision. Pursuant to General Statutes § 16-8 (a), a member of DPUC's staff, who was also a member of the Connecticut bar, was designated as a hearing examiner to conduct the hearing, ascertain the facts, and make a report thereon to the commissioners. Following six public hearings on the matter, the three commissioners issued their unanimous ruling on October 9,1987. The gravamen of their decision was that General Statutes § 16-243e mandated that (1) the plaintiff CL&P was to purchase all of SCRRRA's electrical output, and (2) CL&P was to pay SCRRRA for the electricity at the "municipal rate." On November 5,1987, CL&P filed an administrative appeal in the Superior Court pursuant to General Stat utes § 16-35 and 4-183 (a), naming as defendants, DPUC, consumer counsel and SCRRRA. Thereafter, on December 14, 1987, the trial court, Shaughnessy, Jgranted motions to intervene filed by the defendant towns of Groton, Guilford, East Lyme, Griswold, Ledyard, New London, North Stonington, Stonington and Preston. On April 11,1988, pursuant to their stipulation and at the request of all the parties, the court, Allen, J., reserved the matter for the consideration and advice of the Appellate Court in accordance with Practice Book § 4147 and 4148. On August 4, 1988, we transferred the matter to ourselves pursuant to Practice Book § 4023. The defendant SCRRRA is a municipal resource recovery authority established by the joint resolution of its eleven member towns, in accordance with the provisions of General Statutes § 7-273aa. SCRRRA proposes to build in the town of Preston a $72,000,000 private power production facility that is designed to dispose of municipal solid waste. The waste will be burned through the use of a mass-burning grate system and boiler combination to produce steam that will in turn energize turbines and thereby generate electricity. The Preston facility will not only serve the salutary function of producing electricity, but will also provide the member towns with a means of disposing of their solid waste at a time when their available landfill space is dwindling rapidly. The plaintiff CL&P is a public service company that sells gas and electricity to its various customers throughout Connecticut. It either purchases the electricity at a wholesale price or generates the electricity at a cost that is generally lower than the price for which it sells it to others. In regulatory parlance, this is called the "avoided cost" of the electricity. See General Statutes § 16-243a (a). This must be contrasted with the higher "municipal rate" which is the amount that CL&P charges it municipal customers. See General Statutes § 16-243e, footnote 3, supra. CL&P's customers include residents in eight of the eleven communities belonging to SCRRRA. Its service area, however, does not include the town of Norwich, the Jewett City borough of Griswold or the entire city of Groton and a portion of the town of Groton. Approximately 30 percent of the total tonnage to be consumed at the SCRRRA solid waste facility will come from these three communities whose residents are not CL&P customers. As owner of the proposed private power production facility, SCRRRA will be a private power producer within the meaning of General Statutes § 16-243b (a) (3). CL&P, as a public service company, is required under the provisions of § 16-243a (b) to "[p]urchase any electrical energy and capacity made available, directly by a private power producer [SCRRRA]." The rate to be paid for the electricity generated by the private power producer is to be "based on the full avoided costs of the electric public service company . . . ." General Statutes § 16-243a (c) (2). SCRRRA's facility, however, in addition to being a private power production facility will also be a resources recovery facility within the meaning of General Statutes § 22a-260 (11). This being the case, a public service company such as CL&P is required to purchase the electrical output of such a facility "at the same rate that the electric company charges the municipality or municipalities for electricity." General Statutes § 16-243e. Thus, by paying the higher "municipal rate," the stockholders and customers of public service companies subsidize the resources recovery facility by purchasing its electrical output at a price higher than the public service company could purchase it or generate it elsewhere. The DPUC ruling concluded that § 16-243e required CL&P to purchase all of SCRRRA's electrical output for twenty-five years and to pay for the same at the "municipal rate" for the first twenty years of the contract. Over the term of the contract, the resulting CL&P subsidy is estimated to be $105,000,000. CL&P appealed this ruling contending that § 16-243e as construed by DPUC: (1) preempts the letter and purposes of the federal Public Utility Regulatory Policies Act of 1978 in violation of the supremacy clause of the United States constitution; (2) violates the commerce clause of the United States constitution; (3) unconstitutionally takes CL&P's property for public use without just compensation; and (4) unconstitutionally deprives CL&P of the equal protection of the laws. CL&P further argues that DPUC misconstrued § 16-243e in entering its order. We agree with CL&P that the statute was misapplied to the factual circumstances evident here and do not, therefore, reach the constitutional issues raised. We, therefore, remand the matter for further proceedings. CL&P argued to DPUC that only 70 percent of the municipal solid waste that would fuel the resources recovery facility came from municipalities served by CL&P. CL&P argued that it should therefore have to pay for only 70 percent of the electrical output at the higher municipal rate required by § 16-243e and that it should be able to purchase the remaining 30 percent of the output at the avoided cost rate prescribed by § 16-243a. DPUC rejected this argument stating in its declaratory ruling that "[t]he statute [§ 16-243e] states simply that an electric company 'purchasing electricity' shall enter into contracts at the statutory rate. It makes no mention, by way of limitation on this obligation, in regard to where the waste for the electricity originates from." We disagree. Generally, this court accords "considerable deference to the construction given a statute by the administrative agency charged with its enforcement." Sutton v. Lopes, 201 Conn. 115, 120, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986). However, "the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference." Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). General Statutes § 16-243e establishes a special rate to be paid by electric companies for the purchase of "electricity generated by a resources recovery facility . . . owned by or operated by or for the benefit of a municipality . . . ." This rate is "the same rate that the electric company charges the municipality or municipalities for electricity." General Statutes § 16-243e. The special rate to be paid by the electric company under § 16-243e, therefore, is the same rate that it charges the municipality for electricity. We emphasize that these rates are to be equivalent. If the electric company is not charging the municipality anything for its electricity, it follows that the municipality may not charge the electric company under § 16-243e for the electricity it may produce. Since CL&P was charging Groton, Norwich and Jewett City nothing for electricity, CL&P is not required to pay SCRRRA at the munic ipal rate prescribed in § 16-243e for the 30 percent of its electrical output that is forecast to be generated by the municipal solid waste contributed by those three communities. This, of course, is not to say that CL&P has no obligation to purchase the electricity. General Statutes § 16-243a (b) provides in relevant part: "Each electric public service company . . . shall: (1) Purchase any electrical energy and capacity made available . by a private power producer . . . ." General Statutes § 16-243a (c) (2) provides in relevant part: "The rates for electricity purchased from a private power producer shall be based on the full avoided costs of the electric public service company . . . regardless of whether the purchaser [electric public service company] is simultaneously making sales to the private power producer." Here there is no statutory linkage between the rate paid and the rate charged, simply a clear mandate to purchase all of the electricity at the avoided costs of the electric public service company. To the reserved question "Does the Decision of the Department of Public Utility Control, dated October 6, 1987, in Docket No. 87-06-12 ('Decision') err in interpreting and applying Section 16-243e of the General Statutes by requiring plaintiff The Connecticut Light and Power Company ('CL&P') to purchase all of the electricity generated by defendant Southeastern Connecticut Regional Resources Recovery Authority ('SCRRRA')?" the answer is "Yes." There is error and the matter is remanded to DPUC for a recalculation of the rates to be paid by CL&P to SCRRRA through application of both General Statutes § 16-243a and General Statutes § 16-243e. No costs will be taxed in this court to either party. In this opinion the other justices concurred. General Statutes (Rev. to 1987) § 4-176 provides: "declaratory rulings. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases." This section was subsequently revised by Public Acts 1988, No. 88-317. General Statutes § 16-243a (c) provides in relevant part: "The department of public utility control, with respect to electric public service companies . . . shall establish rates and conditions of service for: (1) The purchase of electrical energy and capacity made available by a private power producer . The rates for electricity purchased from a private power producer shall be based on the full avoided costs of the electric public service company . . . regardless of whether the purchaser is simultaneously making sales to the private power producer." General Statutes § 16-243e provides: "Any electric company, as defined in section 16-1, purchasing electricity generated by a resources recovery facility, as defined in section 22a-260, owned by or operated by or for the benefit of a municipality or municipalities, shall enter into a contract with the owner of such facility requiring the electric company to purchase such electricity, for a period beginning on the date that the facility begins generating electricity and having a duration of not less than twenty years, at the same rate that the electric company charges the municipality or municipalities for electricity." General Statutes § 16-2 (c) provides: "Any matter coming before the authority may be assigned by the chairperson to a panel of three commissioners, not more than two of whom shall be members of the same political party. Except as otherwise provided by statute or regulation, the panel shall determine whether a public hearing shall be held on the matter, and may designate one or two of its members to conduct such hearing or appoint an examiner to ascertain the facts and report thereon to the panel. The decision of the panel, if unanimous, shall be the decision of the authority. If the decision of the panel is not unanimous, the matter shall be referred to the entire authority for decision." General Statutes § 16-8 (a) provides in relevant part: "The department may designate in specific cases a hearing examiner who may be a member of its technical staff or a member of the Connecticut Bar engaged for that purpose . to hold a hearing and make report thereon to the department." General Statutes § 16-35 provides in relevant part: "Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the department of public utility control . . . may appeal therefrom in accordance with the provisions of section 4-183." General Statutes (Rev. to 1987) § 4-183 (a) provides in relevant part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision . is entitled to judicial review by way of appeal under this chapter . . . ." 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." Practice Book § 4148 provides in relevant part: "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." The member towns are East Lyme, Griswold, Groton, Ledyard, Mont-ville, New London, North Stonington, Norwich, Sprague, Stonington and Waterford. General Statutes § 7-273aa (b) provides in relevant part: "Any . . . two or more municipalities may, by concurrent ordinances of their legislative bodies, adopt the provisions of this chapter and . . . create a new . . . regional resource recovery authority." General Statutes § 16-243b (a) (1) provides: " 'Private power production facility' means a facility which generates electricity in the state (A) solely through the use of cogeneration technology, provided the average useful thermal energy output of the facility is at least twenty per cent of the total energy output of the facility, (B) solely through the use of renewable energy sources or (C) through both only." General Statutes § 16-243a (a) provides: "As used in this section, 'avoided costs' means the incremental costs to an electric public service company, municipal electric energy cooperative organized under chapter 101a or municipal electric utility organized under chapter 101, of electric energy or capacity or both which, but for the purchase from a private power producer, as defined in section 16-243b, such company, cooperative or utility would generate itself or purchase from another source." General Statutes § 16-243b (a) (3) provides in relevant part: " 'Private power producer' means . (C) . a political subdivision of the state or any other person, firm or corporation . . . which generates electricity solely through ownership of one hundred per cent or less of a private power production facility . . . ." General Statutes § 22a-260 (11) provides: " 'Resources recovery facility' means a facility utilizing processes aimed at reclaiming the material or energy values from solid wastes." General Statutes § 16-243e provides: "Any electric company, as defined in section 16-1, purchasing electricity generated by a resources recovery facility, as defined in section 22a-260, owned by or operated by or for the benefit of a municipality or municipalities, shall enter into a contract with the owner of such facility requiring the electric company to purchase such electricity, for a period beginning on the date that the facility begins gener ating electricity and having a duration of not less than twenty years, at the same rate that the electric company charges the municipality or municipalities for electricity." Because CL&P has agreed to pay for 70 percent of the electrical output at the higher municipal rate, we need not address the preemption issues that CL&P raises on appeal, "Constitutional issues are not considered unless absolutely necessary to the decision of a case . . . . " State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974),

House, C. J. This appeal is from a judgment rendered on the plaintiff's amended petition for a writ of habeas corpus. The pertinent facts are not in dispute. The plaintiff was initially charged in the Circuit Court with fourteen counts, seven charging the receipt of stolen credit cards and seven charging the receipt of stolen property. By a substituted information, he was charged with a single count of receiving stolen credit cards and one count of receiving stolen property in violation of § 53a-128c (e) and 53a-125 of the General Statutes, respectively. The plaintiff, represented by a public defender, entered pleas of not guilty to both counts and elected a jury trial which commenced on May 17, 1973. The following day, after several of the state's witnesses had testified and the state had presented approximately half of its case, the prosecutor and the public defender entered into plea bargaining negotiations. Immediately thereafter the prosecutor nolled the second count, and the plaintiff pleaded guilty to the one count of receiving stolen credit cards in violation of § 53a-128c (e) of the General Statutes, a class D felony punishable under the penal code by a maximum sentence of five years' imprisonment or a $5000 fine or both. See General Statutes § 53a-35 (b), 53a-41. The prosecutor informed the trial court that the guilty plea was a result of an agreement reached by plea negotiations, the terms of which were a recommended sentence of not less than one year's nor more than two years' imprisonment, to be served concurrently with the balance, if any, of a prison term which the plaintiff might have to serve owing to a parole violation. The public defender added nothing to the prosecutor's representation of the terms of the agreement. The trial court thereupon conducted an extensive and exhaustive inquiry into the voluntariness of the guilty plea, asking the plain tiff if he understood the nature and the essential elements of the charge to which he had pleaded guilty and if he understood that the maximum penalty which could be imposed was five years' imprisonment or a possible $5000 fine or both; that the court was not bound by the prosecutor's recommendation; that the plaintiff could not be compelled to make an incriminating statement or to take the stand and testify; that he had a right to plead not guilty, to remain silent, and to confront and cross-examine the state's witnesses; and that if he pleaded not guilty, he had a right to a speedy and public trial by a jury or judge at which he would be presumed innocent until the state, by competent evidence, established his guilt beyond a reasonable doubt. In response to each one of these questions, the plaintiff expressly answered in the affirmative. The trial court asked him if his guilty plea was induced by any threats or promises. The plaintiff replied that it was not. The plaintiff was asked again if he understood that the court was not bound by the agreed-upon recommendation by the prosecutor or by any other recommendation which the prosecutor or the probation officer might make with respect to the disposition of his case. He answered that he understood. The court then further specifically informed him that even though the prosecution recommended a sentence of from one to two years' imprisonment to run concurrently with a term resulting from parole violation, the court, nevertheless, was not bound in sentencing either to accept the duration of the agreed-upon sentence or to make the sentence concurrent with his confinement for violation of parole. To each explanation stated separately, the plaintiff replied that he understood. The court then inquired as to the sentence on the earlier charge, and the plaintiff stated that it was two to nine years for burglary, and that the unserved portion of it was five years. The trial court then began an inquiry into whether there was a factual basis for the guilty plea, particularly pursuing the matter of the plaintiff's knowledge of the incriminating evidence found in his apartment. The trial court deferred a decision on acceptance of the plea until the plaintiff could confer privately with the public defender. During the recess, the public defender told the negotiating prosecutor that the plaintiff was concerned that the judge might impose a sentence greater than the one recommended and inquired what would happen in that event. The prosecutor replied that if that occurred, the state would not oppose a motion to withdraw the guilty plea. After the court reconvened and after further inquiry by the court during which the plaintiff acknowledged seeing the stolen credit cards in his dresser drawer, the court determined that there was a factual basis for the charge to which the plaintiff wished to plead guilty. After a further extremely detailed inquiry into the facts constituting the crime and the state's proof thereof, and after again asking the plaintiff if he still wished to plead guilty, the court, after the plaintiff answered affirmatively, accepted the guilty plea. When asked if he had anything further to say, the plaintiff replied: "No sir, that's all." The court made an express finding that the plaintiff fully understood the charges and the consequences of his plea; that he fully understood his constitutional rights, his right to engage counsel, his rigM to a trial and Ms rigM to confront Ms accusers; that he acted voluntarily in changing Ms plea to guilty; and that there was a factual basis for the charges to which the plea of guilty was entered. After the plea of guilty was entered and accepted on May 18, 1973, the case was continued for a presentence investigation. At the sentencing hearing on June 15, 1973, which was held before the judge who had accepted the plaintiff's guilty plea, the prosecutor who negotiated the plea of guilty was unable to appear and another prosecutor took Ms place. At the outset of the hearing, the prosecutor recommended the agreed-upon sentence. The plaintiff then moved to withdraw his guilty plea, stating as reasons therefor several grounds hereinafter discussed. The court again explained to the plaintiff that on May 18 it had informed him that the court was not bound by the recommendation, and that it had a presentence investigation and report to assist it in maMng its decision as to a proper sentence in the case. The public defender told the court that the negotiating prosecutor was not objecting to a withdrawal of the plea at any time, even at sentencing. The sentencing prosecutor stated that while Ms basic reaction was to object to the withdrawal, he was not present during the plea negotiations, was not familiar with the discussions, and would forgo any comment whatsoever for those reasons. The sentencing prosecutor assumed that the agreement with respect to the withdrawal of the guilty plea became operative only if a motion to withdraw was made after sentence was imposed. The court denied the plaintiff's motion to withdraw the guilty plea and imposed a sentence of not less than eighteen months nor more than three years concurrent with any parole violation time on the prior sentence. The sentencing judge stated that he felt that the plaintiff needed more than a one-year minimum sentence for the psychiatric treatment expressly requested by the plaintiff and recommended by the probation officer and the public defender. After the court imposed the sentence, neither the plaintiff nor the public defender asked that the plaintiff be allowed to withdraw the guilty plea. After the plaintiff started to serve his sentence at the Connecticut correctional institution at Somers, he filed the petition for a writ of habeas corpus, the judgment on which gave rise to this appeal. Following the hearing on the plaintiff's petition in the Superior Court, that court concluded that because a motion to withdraw the guilty plea was made and the plaintiff did receive a sentence exceeding the prosecutor's recommendation, the state had breached its agreement by objecting to the motion. The court concluded that since the agreement reached through the plea negotiations was breached, the remedy must be either specific performance of the agreement or a withdrawal of the guilty plea. See Santobello v. New York, 404 U.S. 257, 263, 92 S. Ct. 495, 30 L. Ed. 2d 427. Since the court also concluded that the Circuit Court could not constitutionally impose the recommended sentence, it ordered that the plaintiff be discharged from custody unless the Circuit Court vacated the conviction and erased the guilty plea. The Superior Court certified the defendant's appeal to this court in accordance with the provisions of § 52-470 of the General Statutes. Both parties thereafter joined in a motion that, as permitted by § 762 of the Practice Book as amended, this court expedite a hearing of the appeal, which the parties represented would be ready for hearing at the next term of this court. Their joint motion was granted. The defendant's first claim of error is addressed to the Superior Court's conclusion that there was a breach of the terms of the plea bargain necessitating the setting aside of the conviction entered on the guilty plea. In recognition of the importance of plea bargaining in the administration of criminal justice, the United States Supreme Court has observed that the "[disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752 [90 S. Ct. 1463, 25 L. Ed. 2d 747] (1970)." Santobello v. New York, supra, 261. For an accused, a plea of guilty constitutes a simultaneous waiver of numerous constitutional rights, including the right to a trial by jury, the right to confront and cross-examine one's accusers, and the privilege against self-incrimination. Boy- kin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274; Parker v. North Carolina, 397 U.S. 790, 800-801, 90 S. Ct. 1458, 25 L. Ed. 2d 785; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418; State v. Bugbee, 161 Conn. 531, 533-34, 290 A.2d 332. The adjudicative element inherent in accepting a plea of guilty must, accordingly, be surrounded by safeguards, and the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. Consiglio v. Warden, 160 Conn. 151, 162, 276 A.2d 773; Boykin v. Alabama, supra, 242; State v. Bugbee, supra, 536. For these reasons the United States Supreme Court, in Santobello v. New York, supra, 262, has also held that "a constant factor" in "[tjhis phase of the process of criminal justice" is that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promises must be fulfilled." Generally, there are three prosecutorial concessions that may be made in a plea agreement. First, the charge may be reduced to a lesser or related offense. Second, the prosecutor may promise to nolle prosequi other charges. Third, the prosecutor may agree to recommend or not to oppose the imposition of a particular sentence. A.B.A. Standards Relating to Pleas of Guilty (Approved Draft, 1968) §3.1, Commentary at 66; note, "Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas," 112 U. Pa. L. Rev. 865, 898; cf. Brady v. United States, supra, 751; note, "Criminal Procedure—Requirements for Acceptance of Guilty Pleas," 48 N.C. L. Rev. 352, 359-60. Here the plaintiff's guilty plea was entered after plea negotiations as a result of which the prosecutor nolled one count and agreed to recommend and did, in fact, recommend a sentence of one to two years' imprisonment to run concurrently with any portion of a prior sentence that the plaintiff might be required to serve as a result of a violation of parole. That the prosecutor completely complied with this agreement is not questioned. What the defendant does attack by his assignment of errors is the conclusion of the court that "[bjecause a motion to withdraw was made and the petitioner did receive a sentence exceeding the recommendation, the state breached its agreement by objecting to the motion." It followed from this conclusion that the court, upon the authority of Santobello v. New York, supra, reached the further conclusion that "[t]he breaking of a promise made by the prosecutor as a result of plea negotiations is sufficient to invalidate a conviction." Both of these conclusions have been attacked by the defendant on the grounds that the facts set forth in the finding do not legally or logically support them and that they involve an erroneous application of the law. Our examination of the facts found by the court discloses that there is merit to these assignments of error, and that the facts found by the court do not support its conclusion that the prosecutor in the Circuit Court did in fact breach the plea bargaining agreement. The basic conclusion of the court was as follows: "The agreement entered into by the negotiating prosecutor and the petitioner was that a one to two year sentence would be recommended, that the state would nolle the second count of the substituted information, and that the state would not object to a motion to withdraw the plea if the judge should sentence in excess of the recommendation." (Emphasis supplied.) While the court did impose a sentence in excess of the recommendation, the plaintiff did not, after the happening of that condition, move to withdraw his guilty plea, and, accordingly, the prosecutor had no occasion to object to a nonexistent motion to withdraw the guilty plea and made no such objection. The conclusion of the court that the state breached its plea bargaining agreement is not supported by the unattached subordinate facts which the court found and was reached erroneously. In the absence of such a breach and failure on the part of the prosecution to fulfill a promise made in a plea bargaining agreement, the rule enunciated in Santobello v. New York, supra, has no application, and the court erred in following the dictates of that case and ordering that the plaintiff he discharged from custody unless the Circuit Court vacated the conviction and erased the guilty plea. Even assuming that the second prosecutorial concession amounted to "a Santobello promise, one that 'can be said to be part of the inducement or consideration' "; United States v. Lombardozzi, 467 F.2d 160, 163 (2d Cir.), cert. denied, 409 U.S. 1108, 93 S. Ct. 907, 34 L. Ed. 2d 688; and even assuming that the fulfillment of the original agreement did not, as the state claims, amount to substantial compliance with the terms of the bargain; e.g., X v. United States, 454 F.2d 255, 261 n. (2d Cir.), cert. denied, sub nom. Jones v. United States, 406 U.S. 961, 92 S. Ct. 2073, 32 L. Ed. 2d 348; there could be no breach of the agreement where there was no motion to withdraw the plea after the sentence was imposed since a sentence in excess of that recommended was a condition precedent. We find that in the absence of an unfulfilled promise calculated to induce the plaintiff's guilty plea, the Superior Court erred in finding the decision in Santobello applicable to this case. There remains the question whether the court erred in denying the plaintiff's motion to withdraw his guilty plea made prior to sentencing. The burden of proving merit for his reasons for withdrawing a plea of guilty rests on the moving party. United States v. Webster, 468 F.2d 769, 771 (9th Cir.), cert. denied, 410 U.S. 933, 93 S. Ct. 1384, 35 L. Ed. 2d 596; United States v. Lester, 247 F.2d 496, 501 (2d Cir.); United States v. Rogers, 289 F. Sup. 726, 729 (D. Conn.); note, 6 A.L.R. Fed. 682; see Williams v. Reincke, 157 Conn. 143, 147, 249 A.2d 252; cf. Dukes v. Warden, 406 U.S. 250, 257-58, 92 S. Ct. 1551, 32 L. Ed. 2d 45. The plaintiff stated that his reasons for wishing to withdraw his guilty plea were that he felt his earlier preliminary motion to suppress was not properly handled; that he did not feel a memorandum of law which he had submitted in conjunction with his attorney's memorandum in support of that motion was considered by the court; that his guilty plea was entered out of fear of receiving an additional five years for the parole violation and in anticipation of the court's acceptance of the recommended sentence; and that it was his understanding that the court was bound by the prosecutor's recommendation notwithstanding the earlier explanations by the court that it was not bound. The plaintiff said that he could not "quote the source" of his understanding. A guilty plea is not invalid "whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." Brady v. United States, 397 U.S. 742, 751, 90 S. Ct. 1463, 25 L. Ed. 2d 747. A plea of guilty, voluntarily and knowingly made, waives all nonjurisdictional defects and defenses in the proceedings preliminary thereto. Williams v. Reincke, supra, 147; 21 Am. Jur. 2d, Criminal Law, §495; see note, 20 A.L.R.3d 730. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235. The recently adopted Rule 11 (e) (4) of the federal Rules of Criminal Procedure requires that in the federal courts a trial judge must inquire of a defendant whether a withdrawal of a guilty plea is desired when the judge intends to impose a sentence in excess of the one recommended. See 52 F.R.D. 415; see also Illinois Supreme Court Rule 402 (d) (2) [52 F.R.D. 429], and Pennsylvania Crim. Proc. Rule 319 (b) (3), Commonwealth v. Barrett, 223 Pa. Super. 163, 299 A.2d 30; Cacilhas v. Superior Court, 35 Cal. App. 3d 465, 110 Cal. Rptr. 661, 665; A.L.I. Model Code of Pre-Arraignment Procedures (Tentative Draft No. 5, 1972) §350.5 (4), commentary at 112; A.B.A. Standards Relating to Pleas of Guilty (Approved Draft, 1968) § 2.1 (a) and 3.3 (b); cf. United States v. Gallington, 488 F.2d 637, 640 (8th Cir.). There is no comparable rule or requirement in Connecticut. "This court has never attempted to lay down specific guidelines for the assistance of a trial court in deciding the merits of an application to withdraw a plea in a criminal case. Indeed, since of necessity each case must depend on its own facts and circumstances, it is doubtful that any hard and fast rule can be laid down which will fit every case. 22 C.J.S. 1142, Criminal Law, §421(2). Many of the innumerable cases discussing the relevant considerations are collected in annotations in 20 A.L.R. 1445 and 66 A.L.R. 628, entitled 'Right to withdraw plea of guilty.' " State v. Brown, 157 Conn. 492, 495-96, 255 A.2d 612. We have repeatedly held that, once entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. State v. Dennis, 150 Conn. 245, 246, 188 A.2d 65; State v. Carta, 90 Conn. 79, 82, 96 A. 411; State v. Maresca, 85 Conn. 509, 83 A. 635; State v. Brown, supra, 496. We have also stated that the court's discretion with regard to motions to withdraw a guilty plea, at least prior to sentencing, is to be exercised in favor of the accused. State v. Brown, supra; State v. Carta, supra. This was the general rule in the federal courts prior to the amendments to their Rule 11; see note, "Change of Plea—Before Sentence" 6 A.L.R. Fed. 665, 675; and in the United States Court of Appeals for the Second Circuit upon review of an application for federal habeas corpus by a state prisoner. United States v. Follette, 395 F.2d 721, 726 (2d Cir.); cf. note, "Withdrawing Guilty Plea after Sentencing," 9 A.L.R. Fed. 309, 323. " 'The plea of guilty is a solemn act not to be disregarded because of belated misgivings about the wisdom of the same.' " United States v. Benson, 469 F.2d 222, 223 (8th Cir.), quoting from United States v. Woosley, 440 F.2d 1280, 1281 (8th Cir.). In this case the Circuit Court developed, on the record, an exhaustive inquiry into the voluntariness of the plea of guilty, its consequential impact, and the factual basis therefor. We conclude that there was no abuse of discretion in the court's denial of the motion to withdraw the plea. See Williams v. Reincke, 157 Conn. 143, 148-49, 249 A.2d 252; United States v. Fragoso-Gastellum, 456 F.2d 1287, 1288 (9th Cir.). While we find error in the judgment of the Superior Court vacating the guilty plea entered by the plaintiff in the Circuit Court, this decision is not dispositive of the merits of this appeal. There remains for consideration the issue raised by the second count of the plaintiff's petition for habeas corpus and a decision on this count is necessary for a determination of the validity of the sentence which was imposed on the plaintiff and which he is now serving. In the second count of his petition the plaintiff pleaded the imposition by the Circuit Court of the sentence of not less than eighteen months nor more than three years for larceny in violation of § 53a-128 of the General Statutes. It is the plaintiff's claim that § 54-1a of the General Statutes, which gives to the Circuit Court jurisdiction over crimes punishable by a fine of not more than $5000 or imprisonment for not more than five years, or both, is unconstitutional in that it vests in the Circuit Court jurisdiction and power which materially detract from the essential characteristics of the Superior Court as created by § 1, article fifth, of the Connecticut constitution. The plaintiff contends that the General Assembly had no power to enact a statute or statutes giving such jurisdiction to the Circuit Court, and, accordingly, the statutes conferring such jurisdiction on the Circuit Court "are null and void and violate the constitution of the State of Connecticut and the United States of America particularly as to separation of power." By way of relief the plaintiff prayed for judgment that "Section 54-1a of the Connecticut General Statutes be declared unconstitutional insofar as it expands the jurisdiction of the Circuit Court to include crimes punishable by a fine of not more than Five Thousand ($5,000.00) or imprisonment for not more than five (5) years, or both"; and that "he be immediately released from custody and any restrictions imposed upon him pursuant to the judgment and sentence of June 15th, 1973." The constitutional question of jurisdiction, now raised, clearly existed at the time of the disposition of the plaintiff's case in the Circuit Court, and no explanation is offered as to why it was not raised at that time. Several circumstances, however, prompt us to decide the question despite any irregularities in procedure. See Collins v. York, 159 Conn. 150, 155, 267 A.2d 668: "The question of the jurisdiction of a court to impose custody or restraint upon an individual is . a recognized basis for a collateral attack on the judgment of the court by habeas corpus." See also Reed v. Reincke, 155 Conn. 591, 594, 236 A.2d 909. As we have noted, the case below involved the sentence imposed on a negotiated plea of guilty, the validity of which plea was contested and has been hereinbefore adjudicated. The further question of the jurisdiction of the court to impose either the recommended sentence or the sentence it did impose was fully argued below, and, in accordance with the provisions of § 52-470 of the General Statutes, the appeal was certified to this court where it has been fully argued before us on facts concerning which there is no dispute. The issue not only involves a question of substantial importance and public interest, but its resolution is necessary to a proper final disposition of the appealed case. The Superior Court wrote a lengthy and scholarly memorandum of decision, concluding that the constitutional claims of the plaintiff were meritorious and that "insofar as § 54-1a authorizes the Circuit Court to impose a sentence in excess of one year it is invalid." Szarwak v. Warden, 31 Conn. Sup. 30, 45, 320 A.2d 12. Properly and responsibly, the defendant did not assign error to the conclusion of the court that "[i]t was the intent of the constitution that Superior Court should continue with the essential characteristics it had previously possessed, and the legislature has no authority to deprive Superior Court of those essential characteristics." He properly narrowed the decisive issue on this aspect of the appeal by his assignment of errors directed to the court's conclusions that the expansion of the criminal jurisdiction of the Circuit Court has materially detracted from the essential characteristics of the Superior Court as envisioned by the constitution, and that, insofar as § 54-1a of the General Statutes authorizes the Circuit Court to impose a sentence in excess of one year, it is invalid. The jurisdiction and the duty of this court to decide a question of the constitutionality of a legislative enactment cannot be doubted. The reasons are aptly set forth in the historic 1803 opinion by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78, 2 L. Ed. 60, and as this court observed in the early case of Trustees of the Bishop's Fund v. Rider, 13 Conn. 87, 93: "This court have [sic] also never failed, on all proper occasions, to assert and maintain the equally sound doctrine, that it is within their well established powers, and a part of their duties, to disregard .a legislative act, which is clearly repugnant to the constitution of the United States, or of this state. Atwater v. Woodbridge, 6 Conn. Rep. 223. Osborne v. Humphrey, 7 Conn. Rep. . . . [335]. Landon v. Litchfield, 11 Conn. Rep. 251. Derby Turnpike Co. v. Parks, . . . [10] Conn. Rep. 522. To refuse the exercise of this high prerogative, in such cases, would be a gross dereliction of duty, and put the supreme law of the state or nation, under the controul of the legislature." Again quoting Chief Justice Marshall: "The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the priñciples on which the opinion to be given by the court is founded." Marbury v. Madison, supra, 154. The controlling provisions of the state constitution are found in articles second and fifth. Article second as contained in the constitution of 1818, and as it continues unchanged in the constitution adopted in 1965, provides: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial to another." Section 1 of article fifth of the 1818 constitution provided: "The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law." The 1965 constitution changed this provision by deleting the words "of errors" in the title of the Supreme Court, by changing the word "inferior" to "lower" in defining what courts could be established by the General Assembly, and by replacing the colon after "establish" with a period and the word "which" by the word "these." As thus changed, § 1 of article fifth now reads: "The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law." The history of these constitutional provisions and their meaning have been the subject of several decisions of this court, and it would unduly lengthen this opinion to attempt to repeat here the results of the scholarly research and judicial wisdom of Justice William Hamersley in Styles v. Tyler, 64 Conn. 432, 30 A. 165; of Chief Justice William M. Maltbie in Walkinshaw v. O'Brien, 130 Conn. 122, 32 A.2d 547; of Justice, later Chief Justice, Allyn L. Brown, in his dissenting opinion in the same case (p. 145); of Judge, later Justice, John A. Cornell, in Osborn v. Zoning Board, 11 Conn. Sup. 489; and of Chief Justice John Hamilton King in Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49. Their full opinions are readily available in the Connecticut reports and it suffices here to summarize more briefly their findings and the conclusions of this court. The opinion of Justice Hamer sley in Styles traced at length the history of the adoption of our constitution with particular reference to the judicial articles. He noted (p. 444) that "[i]ndeed, there is no one of the States where the existing organization of courts and the language of the Constitution in relation to the judicial department can fairly be held analogous to our own." The circumstances peculiar to Connecticut include the significant fact that when the constitution was adopted in 1818, we already had a Supreme Court and a Superior Court with prescribed powers and jurisdiction. The Superior Court had been established in May, 1711, to supersede the Court of Assistants. 5 Col. Rec. 238-41 (Hoadly Ed.); see Preface, 1 Conn. xv. "In 1818 we had a judicial system peculiar to ourselves which was the growth of one hundred and eighty years." Styles v. Tyler, supra, 444. The General Court or Assembly originally exercised all political power; absolute power of legislation, supreme executive power and supreme judicial power in the administration and construction' of all laws. Ibid. Over the years "[t]he Assembly had gradually delegated its judicial powers to the courts. It had built up a judicial system admirably adapted to the needs of the people. But the jurisdiction and existence of the courts, as well as the tenure of office of the judges, was wholly dependent upon the action of each annual Assembly. To remedy this defect was one main object of the Constitution." Ibid. It was accomplished by the enactment of what was then and is now article second of the constitution, dividing the powers of government into three distinct departments: legislative, executive and judicial, each confided to a separate magistracy. By express provision in article fifth, the judicial power was, in 1818, and is now vested in the Supreme Court, the Superior Court and such lower courts as the General Assembly shall, from time to time, ordain and establish. As Chief Justice King observed in Adams v. Rubinow, supra, 154: "In the period from 1818 until the decision in Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 586, 37 A. 1080, in 1897, and in spite of the decision in Brown v. O'Connell, 36 Conn. 432, 446, there was a failure to appreciate the full import and application of article 2. See, for instance, Wheeler's Appeal, 45 Conn. 306, 315. But in the Norwalk case it was finally clearly determined that (1) the constitution represented a grant of power from the people, in whom all power originally resided, and (2) the powers granted to the General Assembly are legislative only and those granted to the judiciary are judicial only. Id., 592. But the legislative powers granted the General Assembly are complete except as restricted by the state or federal constitution, just as the judicial powers granted the judicial department are complete except as restricted by the state or federal constitution. Patterson v. Dempsey, 152 Conn. 431, 444, 207 A.2d 739. Any doubt as to the authority of the Norwalk ease was set at rest in 1912 in Bridgeport Public Library & Reading Room v. Burroughs Home, 85 Conn. 309, 319, 82 A. 582, and its construction of article 2 has been followed consistently up to, and including, the present time, two of the more recent cases being State Bar Assn. v. Connecticut Bank & Trust Co., . . . [145 Conn. 222, 231, 140 A.2d 863] and Heiberger v. Clark, 148 Conn. 177, 185, 189, 169 A.2d 652." It is especially significant that unlike the judicial articles of most state constitutions and that of the United States constitution (article III), the powers and jurisdiction of the two courts specifically named in the Connecticut constitution (the Supreme and Superior Courts) are not specified. The reason is obvious. The 1818 constitution neither created nor provided for the creation of a new judicial system of new courts. Eather, it adopted and gave permanence in the constitution to the existence of the Supreme Court as the state's highest court of appellate jurisdiction and to the Superior Court as the trial court of general jurisdiction. Justice Hamersley summarized it thusly: "The Constitution of 1818 must be read in connection with this peculiar development and existing condition of our judicature, and in view of the special defects it was adopted to remedy; so read the provisions of the fifth article become clear and specific. The whole judicial power of the State is vested in the courts; that power is fully granted and is subject to no limitations except those contained in the Constitution itself; inferior courts may be from time to time ordained and established by the legislature in accordance with the public needs as developed by future changes; and inferior courts are courts inferior to the Superior Court, exercising portions of that jurisdiction vested in the Superior Court, subject to such apportionment. Two courts are established and the character of their jurisdiction described by the Constitution itself; one with .a supreme jurisdiction in the trial of causes, and one with a supreme and final jurisdiction in determining in the last resort the principles of law involved in the trial of causes. The 'Superior Court' is a 'Superior Court of Judicature over this State' with a supreme jurisdiction original and appellate over the trial of all causes not committed to the jurisdiction of inferior courts. The 'Supreme Court of Errors' is not a supreme court for all purposes, but a supreme court only for the correction of errors in law; if its jurisdiction also included the determination of facts it would then be supreme for all purposes and its name a misnomer. It cannot be claimed that the designation of these courts is a mere meaningless name with no effect whatever, and leaves the apportionment of jurisdiction to the uncontrolled discretion of the legislature; but if such claim is baseless, if the phraseology of the Constitution is descriptive of jurisdiction, then it clearly follows that the character of the jurisdiction so described must be sought in the meaning attached to the language used at the time is was employed by the people who used it for the purpose of such description." Styles v. Tyler, supra, 449-50. Justice Hamersley's conclusions were later affirmed by this court in Walkinshaw v. O'Brien, 130 Conn. 122, 127, 32 A.2d 547: "The 'Superior Court' had been established in May, 17.11, as a trial court of general jurisdiction and was in existence when our constitution was adopted in 1818. 5 Col. Rec. 238; Statutes, 1808, p. 205. There can be no doubt that it was the intent of the constitution that this court should continue, with the essential characteristics it had previously possessed." It does not appear that the changes in § 1 of article fifth made by the 1965 constitution were intended to alter, or did in any way materially change, the meaning of the judicial article. The redesignation of the "Supreme Court of Errors" to "Supreme Court" and the "inferior courts" to "lower courts" changed titles only and clearly effected no substantive alteration. Nor would we conclude that the separation of the final clause into a separate sentence and the substitution of "these" for "which" were anything more than minor changes in words and punctuation, effecting no change in substance or meaning. In this connection it is of interest to note that in the draft of this section as first reported to the 1818 convention, this clause was also written as a separate sentence, a period dividing it from the preceding portion. Journal of the Constitutional Convention, p. 89. But in the final draft, and as the constitution was adopted, the period was replaced by a colon. Id., 111. Our conclusion that the reversion in 1965 to the sentence structure proposed in the first 1818 draft was not intended to alter nor did alter the meaning of the section is confirmed by reference to the proceedings and actions of the 1965 constitutional convention. The convention was established by Public Act No. 1 of the November, 1964, Special Session of the General Assembly. Section 7 of that act provided that the convention should prepare proposals to amend or revise the state constitution and file such proposals with the secretary of the state not later than November 1, 1965. The secretary of the state was directed within fourteen days of the receipt of such proposals to advertise them and distribute copies to the various town clerks "together with a resume of each to be prepared by the convention . . . ." The resume prepared by the convention as the statute directed and circulated by the secretary of the state made no reference whatsoever to any change in sentence structure in § 1 of article fifth and noted only the proposed deletion of "of Errors" and the change from "inferior" to "lower." Similarly, the "Proposed Revised Constitution for the State of Connecticut, with Marginal Notes, Annotated and Published by the Constitutional Convention of 1965 as a Guide to the People of the State" indicated in the marginal note to § 1 of article fifth only the same two word changes, and made no reference to the change in sentence structure. The introduction to the "Guide" published by the convention carried this explanation: "The basic document is the Constitution of 1818. Into this framework are incorporated the changes in substance contained in the twelve resolutions adopted by the 1965 Convention as well as the twelve present amendments to the Constitution. The whole Constitution has been recodified. In many cases minor changes can be found in words and punctuation. These were made either to smooth the language, to clarify passages thought to admit of ambiguity, to remove unnecessary words and phrases or to achieve conformity of language in the whole. There are no marginal annotations for these changes. Unless there are changes of substance in the proposed revision, notes will state 'no change' or 'as is.' " Our conclusion is further confirmed by examination of the proceedings of the 1965 constitutional convention when the changes in § 1 of article fifth were adopted. The changes were incorporated in File No. 8, Constitutional Resolution No. 266. In the file copy of the resolution, the words "of Errors" were bracketed, the word "inferior" was bracketed followed by the word "lower" in italics, and the word "which" was bracketed followed by the word "these" in italics. No such indication of the change in punctuation from a colon to a period was given. In reporting for the Rules Committee and moving the adoption of the resolution, the only remarks were made by Mr. Tarpinian for the committee and his only comment as to § 1 was: "As understood by everyone, and I think there is no question about section 1 merely to correct the name of . . . the Supreme Court of Errors by removing the words 'of errors' and in referring to the Inferior Courts, because of the inference made by the word inferior, has changed that from 'Inferior' to 'Lower.' " Conn. Const. Conv., 1965, Proc. pt. 3, p. 763. From the foregoing, we conclude that the 1965 constitution did not change § 1 of article fifth of the 1818 constitution in any matter of substance. The significance of the clause as it read, or sentence as it now reads, was discussed in some detail in both Styles and Wallcinshaw. It is not entirely free from ambiguity, and its full context must be kept in mind: "The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law." It is to be noted that although the Greneral Assembly is expressly granted power to "ordain and establish" lower courts, there is no grant of power to the Greneral Assembly to prescribe the powers and jurisdiction of any court. Instead, the powers and jurisdiction of the courts mentioned shall be "defined by law." This precise language is particularly noteworthy in the light of the provisions of the section which next followed § 1 of article fifth in the 1818 constitution. The substance of this section is now § 5 of article fifth, but as enacted as § 2 of article fifth of the 1818 constitution and as it read until the adoption of the tenth amendment in 1850, it provided: "There shall be appointed, in each county, a sufficient number of justices of the peace, with such jurisdiction in civil and criminal cases as the general assembly may prescribe." Not only was this language, in contrast to § 1, express authority for the Greneral Assembly to prescribe jurisdiction rather than have it "defined by law" as in § 1, but, as the court in Styles noted (p. 453): "Here a free hand is given the legislature to confer on justices any jurisdiction whatever. Can the legislature appoint one or more justices in each county with supreme appellate jurisdiction in all causes civil and criminal tried within the county? This certainly cannot be; and cannot be because the phrase in section 2, as well as the phrase in section 1, is used in subordination to the jurisdiction of the Supreme Court of Errors and the Superior Court as granted and described." Indeed, the basic constitutional concept of separation of powers and the deposit of the judicial power in a magistracy sepa rate from that of the legislative is, as noted by Judge Cornell in Osborn v. Zoning Board, 11 Conn. Sup. 489, 526-27: ". . . itself a refutation of any constitutional intention that having gone to such lengths to keep it free of legislative control, it at the same time beckoned to the General Assembly to appropriate it under the guise of apportioning it; or to so use that authority that by stripping the constitutional court of all but a vestige of jurisdiction and placing the powers taken from it in tribunals of its own creation, to subvert the whole constitutional design and structure and replace it with one of its own devising. The indispensable requirement, which, if observed, accompanies the apportionment of jurisdiction with no offense to the constitutional intendment is that the legislatively ordained courts be inferior to a superior court. Manifestly a tribunal otherwise inferior but exercising a jurisdiction of causes equal to or greater than a superior court would violate the constitutional mandate. Just as the power in the General Assembly to ordain courts is limited to such as are inferior to a superior court, so, also is the authority to define the jurisdiction of those created in the exercise of it to such as is appropriate to the status, character and place in the judicature of such tribunals. These requirements, of course, are referable to the functions that such courts serve and the purposes that they are designed to achieve. The principal reason accounting for the establishment of inferior courts generally recognized is that of screening small causes from the court of general jurisdiction thereby preventing its dockets from becoming clogged with numerous proceedings of comparatively little importance and at the same time obviating the necessity of increasing the number of judges to hear matters of snch a character which could as well and with greater dispatch, under such conditions, be disposed of by a local tribunal. 21 C.J.S. § 51, p. 56." Justice Hamersley in Styles, supra, 452, suggested with reference to the phrase "defined by law" that "it may well be that these words, as their form indicates, are simply a direction that the law shall at all times clearly define the limits of the powers and jurisdiction exercised by all courts; by those courts upon which jurisdiction may be conferred by the legislature in accordance with the jurisdiction so conferred, and by those courts whose jurisdiction is derived directly from the Constitution in accordance with the jurisdiction so granted." Judge Cornell was of the opinion that the authority to define the "powers and jurisdiction of which courts" in § 1 of article fifth referred only to the inferior courts which the General Assembly was empowered to ordain. Osborn v. Zoning Board, supra, 526. The problem of interpretation was settled definitively by the decision of this court in Walkinshaw v. O'Brien, supra, in which this court agreed unanimously that even without reference to the power to define powers and jurisdiction, "the power in the legislature to establish inferior courts necessarily involves the apportionment of jurisdiction between them and the Superior Court, for, as the jurisdiction of the latter is unlimited, any vesting of jurisdiction in any inferior court must necessarily take something from the jurisdiction the Superior Court would otherwise have had." Id., 135-36. The test determinative of the constitutionality of a statute granting jurisdiction to a lower court is, then, one of degree. "The power of the General Assembly to create 'inferionr [now, lower] courts' is not, however, unlimited. As we have said, the constitution adopted the Superior Court as an existing court with the essential characteristics it had previously possessed. Styles v. Tyler, supra, 450; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527. Not only must any other court the General Assembly creates be an 'inferiour [lower] court' but it may not be so constituted as materially to detract from the essential characteristics of the Superior Court as it was then constituted." Walkinshaw v. O'Brien, supra, 140. Since the constitution has designated the Superior Court and the Supreme Court as repositories of trial and appellate jurisdiction, the General Assembly cannot take from them in establishing lower courts what the constitution has itself bestowed. " 'It is entirely clear then that the legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts.' Harris v. Vanderveer's Executor, 21 N.J. Eq. 424, 427." Walkinshaw v. O'Brien, supra, 142. In Walhinshaw, this court had for consideration the constitutionality of chapter 283 of the 1941 Supplement to the General Statutes, § 756f through 786f. This chapter created a new single state Court of Common Pleas for the entire state consisting of fourteen judges to replace existing county Courts of Common Pleas. It provided for criminal terms to be held in New Haven County at New Haven and in the judicial district of Waterbury, at Bridgeport, at New London and at Litchfield. § 760f. It provided for civil terms to be held at the same places and, in addition, at Hartford, Middletown, Willimantic and Rockville. § 761f. Previously there had been a Court of Common Pleas in each of five of the counties and one in the judicial district of Waterbury. General Statutes, Cum. Sup. 1939, § 1371e. In general, these separate county courts had exclusive jurisdiction, in their respective counties or districts, of appeals from justices of the peace and from municipal courts when appeals from them were not required to he taken to the Supreme Court. General Statutes, Cum. Sup. 1939, § 1364e. They had exclusive jurisdiction of actions for legal relief wherein the matter in demand exceeded $100 hut did not exceed $500, and of actions for equitable relief wherein the matter in demand did not exceed that sum. They had concurrent jurisdiction with the Superior Court of all actions claiming either legal or equitable relief wherein the matter in demand exceeded $500 hut did not exceed $2000, with an additional concurrent jurisdiction with the Superior Court of actions for foreclosure of mortgages or liens regardless of the extent to which the matter in demand might exceed $2000. General Statutes, Cum. Sup. 1939, § 1396e. In criminal matters, the county Courts of Common Pleas had jurisdiction of appeals from justices of the peace or municipal courts in the counties or district for which they were created. General Statutes, Rev. 1930, § 6397. The new state Court of Common Pleas was given exclusive jurisdiction of legal actions wherein the matter in demand exceeded $100 but did not exceed $2500, of equitable actions wherein the matter in demand did not exceed that sum, and of appeals from municipal hoards, officers and commissions and from the liquor control commis sion and concurrent jurisdiction with the Superior Court of actions for the foreclosure of mortgages or liens wherein the matter in demand exceeded $2500. General Statutes, Sup. 1941, § 808f-810f. With reference to appeals from justices of the peace and municipal courts and criminal proceedings, it retained the jurisdiction which the former county Courts of Common Pleas had had, except that in civil cases appeals from justices of the peace and municipal courts were to be taken to the Court of Common Pleas in all counties whereas previously in any counties not having Courts of Common Pleas they were required to be taken to the Superior Court or Supreme Court. In 1941, when the Court of Common Pleas was created, the upper limit of criminal jurisdiction in ,a municipal court from which an appeal might be taken to the Court of Common Pleas was in a municipality having a population of 15,000 or more, and the limit of jurisdiction was over crimes and misdemeanors wherein the penalty provided did not exceed a fine of $500 or imprisonment for one year, or both. General Statutes, Sup. 1941, § 737f. There was a proviso that a municipal court could take jurisdiction of prosecutions for a crime the punishment for which should not exceed a fine of $1000, or imprisonment for not more than five years "whenever, upon conviction, the court shall determine that no greater punishment ought to be imposed than that which it may lawfully inflict." General Statutes, Cum. Sup. 1939, § 1457e; Sup. 1941, § 737f. The question before the court in the Walhinshaw case, then, in brief, was whether it was within the constitutional power of the General Assembly to create a court which would sit throughout the state as one court having general civil jurisdiction in cases wherein the demand did not exceed $2500, and on appeal in criminal cases wherein the penalty provided did not exceed a fine of $500 or imprisonment for one year, or both. Applying the test upon which the court unanimously agreed—whether the jurisdiction thus vested in the Court of Common Pleas materially detracted from the constitutional characteristics of the Superior Court—a majority of the court concluded that it did not, but added this important caveat and warning: "It must be recognized, however, that in the broad grant of jurisdiction to the Court of Common Pleas, summing up as it does the various extensions of jurisdiction which through the years have been made as regards the former Courts of Common Pleas, the General Assembly has trenched far upon the jurisdiction of the Superior Court as it existed when the constitution of 1818 became effective, and the question whether the act can be sustained is a very close one. Not without considerable hesitance have we concluded that by the terms of the act the status of the Superior Court as the trial court of general jurisdiction throughout the state and its essential characteristics have not been so impaired as to make the act unconstitutional." Walkinshaw v. O'Brien, supra, 144. In a sharp dissent, Justice, later Chief Justice, Brown disagreed with this conclusion of the majority. He wrote (pp. 149-50): "To sum up, between 1818 and 1941 the legislature by degrees, but none the less progressively and effectively, had been gradually depriving the Superior Court of jurisdiction. Then came the culminating act of 1941 unifying the cumulative encroachment of the past years and establishing another court of state-wide jurisdiction which duplicated the Superior Court. It had laden the proverbial camel's back with many straws already. Finally, by its adoption of this act it added a whole bundle to top all the rest. It is my conclusion that this act violates the constitution, and that under it the Superior Court cannot 'continue with the essential characteristics it had previously possessed.' For this reason I have a deep and abiding conviction that now, once and for all, is the time to call a halt before it is too late. By this course only, in my judgment, can the continuance of the Superior Court with those characteristics which belonged to it at the adoption of the constitution be assured, and also the right of the individual to bring his action in a proper case to that court, which the constitution expressly and so wisely guarantees, be preserved." Notwithstanding, or in disregard of the "considerable hesitance," admonition and caveat of the majority of this court in Walkinshaw v. O'Brien, supra, the General Assembly has continued to trench further and further upon the constitutional jurisdiction and the independence of the Superior Court. It is unnecessary to enumerate here these many encroachments, and we refrain from doing so. It suffices for the decision of the case presently before us to note that the upper limits of civil jurisdiction of $2500 provided in the 1941 act considered in Walkinshaw have since been raised by the General Assembly to $15,000; see General Statutes § 52-6; with jurisdiction concurrent with the Superior Court for cases where the matter in demand exceeds $7500 but does not exceed $15,000; see General Statutes § 52-28; and civil jurisdiction up to $7500 has been granted to the Circuit Court which was created as a state-wide court in 1959 by Public Act No. 28. See General Statutes § 52-2a. Criminal jurisdiction in the lower courts when Walkinshaw was decided was limited to eases permitting a maximum fine of $500 or imprisonment for one year, or both. This was the limit of criminal jurisdiction granted to the Circuit Court when that court was established. This jurisdiction was increased by 1961 Public Act No. 352 to offenses punishable by a fine of not more than $1000 or imprisonment for not more than one year, or both. This jurisdiction limit continued until 1971 when by Public Act No. 870, § 1 (General Statutes § 54-1a), the jurisdiction of the Circuit Court was extended to crimes punishable by a fine of not more than $5000 or imprisonment for not more than five years, or both. It is specifically the constitutionality of this last and substantial extension of the criminal jurisdiction of the Circuit Court which is raised in the present appeal. The Superior Court concluded that insofar as § 54-1a of the General Statutes authorized the Circuit Court to impose a sentence in this case in excess of one year it is unconstitutional and invalid. In the light of the prior decisions of this court which we have discussed, and particularly of Walkinshaw v. O'Brien, supra, we conclude that the decision of the trial court on this issue was correct. For reasons indigenous to the history and development of this state, and this country, and for the same, self-evident purposes for which the concept of separation of powers was originally implemented, the Connecticut constitution, which, less than a decade ago, was redrafted and ratified by the people in the context of three hundred years of self-government, continued the separate magistracies of a popularly elected executive and legislature and an independent judiciary. The constitution defines and circumscribes the powers of these three magistracies of government. As Chief Justice Marshall observed in 1803: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 135. In enacting the statute today declared unconstitutional, the General Assembly acted in contravention of settled constitutional precedent and the judicial pronouncements of Walkinshaw v. O'Brien, supra, Styles v. Tyler, supra, and Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49, relative to the division of jurisdiction between the legislative courts and the constitutional courts. The defendant has eloquently urged upon us the possibly deleterious repercussions of our decision, but we believe beyond a reasonable doubt that insofar as § 54-1a of the General Statutes extends the criminal jurisdiction of the Circuit Court to the imposition of penalties in excess of a fine of $1000 or confinement for more than one year, or both, it is unconstitutional. There is error in part in the judgment of the Superior Court and the case is remanded to that court with direction to order that the plaintiff be discharged from custody arising from the sentence imposed by the Circuit Court unless within a reasonable time that court vacates the sentence which it imposed on the plaintiff and imposes a sentence which is within its constitutional jurisdiction to impose. In this opinion Shapiro, Loiselle and MacDonald, Js., concurred. Relevant subordinate facts found by the court include the following: "The only circumstance in which the state would not oppose withdrawal was, according to the subsequent agreement, where the sentence recommendation was not followed by the sentencing court." "It was the custom of the negotiating prosecutor not to oppose motions to withdraw when the sentencing judge exceeded the agreed recommendation." "The sentencing prosecutor first became aware of the fact that the judge wasn't going to follow the recommendation when the judge actually pronounced the sentence." "Up to the time that the court sentenced petitioner, the sentencing prosecutor had no knowledge that the judge would not accept and follow the agreed recommendation." "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular eases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. "So if a law be in opposition to the constitution; if both the law; and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the ease. This is of the very essence of judicial duty. "If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. "Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. "This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. "That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction."

No one having appeared in support of the defendant's motion to dismiss the appeal from the Superior Court in New Haven County, the motion is dismissed.

Shapiro, J. The defendant was charged in an information with the crime of arson in the first degree in violation of General Statutes § 53a-111. After a trial by jury, he was found guilty. The defendant's motion to set aside the verdict was denied by the trial court and from the judgment rendered thereon he has appealed to this court. The first assignment of error pursued by the defendant in his brief is that the court erred in failing to grant his motion to set aside the verdict of guilty because it is contrary to the law and the evidence. This claim is tested in light of the evidence printed in the appendices to the briefs. State v. Johnson, 166 Conn. 439, 440, 352 A.2d 294; State v. Mullings, 166 Conn. 268, 269, 348 A.2d 645; State v. Hall, 165 Conn. 599, 601, 345 A.2d 17; State v. Benton, 161 Conn. 404, 406, 288 A.2d 411; State v. Cobb, 159 Conn. 31, 32, 266 A.2d 393. As to the motion to set aside the verdict, the evidence must be given a construction favorable to sustaining the jury's verdict; State v. Raffone, 161 Conn. 117, 121, 285 A.2d 323; but the verdict must be set aside if the evidence is insufficient to justify the jury in finding guilt beyond a reasonable doubt. State v. Kelsey, 160 Conn. 551, 553, 274 A.2d 151; State v. McGinnis, 158 Conn. 124, 129, 256 A.2d 241. The evidence printed in the appendices to the briefs would permit the jury to find the following facts: On Sunday, October 3, 1971, No. 662 Noble Avenue, Bridgeport, was a three-story, six-family building. Stanley J. KrysinsM occupied the second- and third-floor apartments of the building and was half-owner of it. The first-floor apartment, which had just been remodeled, was unoccupied and had been locked the night before. The other half of the building was occupied by three other families. Sometime before 10:00 a.m., Krysinski heard an explosion and the slamming of a door. He ran to the front door and found the hall full of smoke. He also observed that the door to the first-floor apartment was open and there were flames around the kitchen border, the baseboard of the bedroom and living room. The paneling in the kitchen and the bedroom baseboard were charred. An outside window was open although it had been closed the night before. He observed two jars or jugs, not there the previous evening, one in the bathroom and one in the living room. The jars had no caps on them but did have metal rings on their necks. A neighbor, Anthony Pereirra, sometime after 9:00 a.m. on the morning of October 3, 1971, while walking in his driveway in the direction of the Krysinski house, observed smoke and flames .and saw a man run out of the first-floor apartment, jump the porch steps and continue down Noble Avenue. Pereirra ran after the man who hid in the bushes and who then crawled along other bushes behind a fence. Minutes later, the fleeing man was identified by this neighbor as the defendant. Sergeant Walter Potz of the Bridgeport police department, on Sunday church traffic duty, saw the defendant being pursued by Pereirra. The sergeant then gave chase to the defendant by auto and on foot and took him into custody on the spot where he-was hiding. One Mitchell R. Dixon, who was in the area, was also taken into custody. The sergeant went to the Krysinski premises involved in the fire, where he observed two green bottles each having a ring around its top. Upon examination of the bottles he determined the presence of gasoline odor. Officer Robert Yarasavich of the Bridgeport police department searched the defendant at police headquarters and found in his right-hand pocket a bottle cap which had a very strong odor of gasoline. He also found a cigarette lighter. Dixon was arrested for an arson incident on October 3, 1971. He testified that he knew the defendant and on October 2, 1971, was with the defendant. The defendant and one Donald Michelle were talking in his presence. Two wine bottles which had been sitting for a couple of weeks in Michelle's house, similar to those found in the Krysinski apartment, were placed in the trunk of a car by the defendant and Michelle. Dixon, the defendant and Michelle then went to a gasoline station where the two bottles were filled with gasoline. The three men rode around and then the bottles were placed in another ear. On October 3,1971, Dixon went with the defendant in the car in which the bottles had been ultimately placed. The defendant drove to a location and then he and Dixon left the car. They both looked at the Krysinski house. The defendant then went into the left entrance door. Dixon remained outside and then heard the defendant whistle to him. He saw the defendant's head and face at the side window. Dixon then handed the defendant the two bottles containing the gasoline. Dixon then went back to the corner and thereafter heard a big explosion and saw the defendant running up the street. The Bridgeport deputy fire chief was in charge of investigating the fire. He saw a thin ribbon of some flammable fluid floating on water. There was fire along the living room baseboard and cartons of floor tile were still burning^ He determined that there were three separate and distinct origins of fire in the apartment and that the fire was of incendiary origin. There was testimony from Sergeant James E. McDonald of the state police department, assigned to firearm, bullet and other identification in the police laboratory, whose qualifications in the field of identification are extensive. He conducted an investigation to determine whether there was a connection between the cap and either of the rings of foil around the neck of each bottle. After laboratory analysis and microscopic examination he was of the opinion that the cap taken from the defendant and the ring removed from one of the bottles were positively one piece before they were separated. On the basis of this evidence, which was submitted for their consideration, the jury could reasonably and logically find that the defendant Anthony Saia was guilty as charged. There was no error in the refusal of the court to set aside the verdict as contrary to the evidence and contrary to the law. The defendant assigns error in certain rulings made by the trial court. Basically, the claim of error concerns the refusal by the court to allow evidence of the activities of the defendant's "Concerned Citizens Committee." As stated in his brief, the defendant claims that his purpose was to try to impeach certain police witnesses by showing motive for their testimony. A review of the evidence contained in the defendant's appendix to his brief discloses that the questioning by defendant's counsel of two of his witnesses related to whether the defendant ever distributed literature in court; whether, during the morning of October 3, 1971, the defendant had a camera with him; and whether the "Concerned Citizens" ever engaged in activities in the area of the Circuit Court. This evidence was excluded by the court as being irrelevant. The trial court has a wide discretion in its rulings on the relevancy of evidence. State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628, cert. denied, 396 U.S. 922, 90 S. Ct. 488, 24 L. Ed. 2d 455; State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473. See State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36, and cases cited therein. The trial court was correct in refusing to allow into evidence the testimony sought to be introduced by the defendant because the defendant had not properly established a foundation for the introduction of the evidence since the defendant on his cross-examination of police witnesses failed to establish that they knew Saia and such proof was necessary before the defendant could be allowed to put on extrinsic evidence of the policemen's motives for arresting Saia. The remaining assignments of error were not briefed and are considered abandoned. State v. Mullings, 166 Conn. 268, 280, 348 A.2d 645; State v. Hall, 165 Conn. 599, 607, 345 A.2d 17; State v. Brown, 163 Conn. 52, 55, 301 A.2d 537; Maltbie, Conn. App. Proc. § 327. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 53a-111. arson in the first degree: class b felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and (1) at the time, another person is present in such building or is so close to such building as to be in substantially the same danger as a person in such building would be, and (2) the actor is either aware that a person is present in or close to such building, or his conduct manifests an indifference as to whether a person is present in or close to such building. . . ."

The plaintiff's motion to dismiss the appeal of the defendant Edward Allen from the Court of Common Pleas in Fairfield County is denied.

The plaintiff's motion to dismiss the appeal from the Superior Court in Hartford County is denied. The defendant's motion to set aside the judgment of the trial court in the appeal from the Superior Court in Hartford County is denied.

The defendant's motion for a review of the decision of the trial court dated October 22, 1974, terminating the stay of judgment in the appeal from the Superior Court in New Haven County is granted and the relief sought therein is denied.

It appearing that the defendant in the above-entitled case has failed to prosecute its appeal from the Superior Court in Fairfield County at Stamford •with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed. No appearance by counsel for either party. Decided December 3, 1974

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

The plaintiff's petition for certification for appeal from the Appellate Court, 17 Conn. App. 809, is denied.

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

The motion by the named defendant to dismiss the appeal from the Superior Court in Hartford County is denied.

Hull, J. The dispositive issue in this case is whether the administratrix of a decedent's estate can bring a new action for wrongful death under our accidental failure of suit statute, General Statutes § 52-592, where the original wrongful death action was dismissed for lack of subject matter jurisdiction because, at the time such original action was commenced, the individual bringing suit had not been appointed administratrix of the estate by the probate court. We conclude that § 52-592 authorizes such a second suit and that the trial court erred in dismissing it. The factual and procedural background of this case is not in dispute. Redgnard Isaac died at Mt. Sinai Hospital in Hartford on April 10, 1979. On March 30, 1981, the plaintiff commenced a wrongful death action pursuant to General Statutes § 52-555 alleging negligence in the treatment of the decedent by the defendants Mt. Sinai Hospital, St. Francis Hospital, Dr. Richard B. Weltman, and Anesthesia Associates, P.C. The plaintiff alleged in the complaint that she had been appointed administratrix of the decedent's estate on May 17,1979. In 1982, she discovered that she had been involved only in the transfer of survivorship property and had not been named administratrix. She was subsequently appointed administratrix of the decedent's estate on September 28, 1982. Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 599, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 494 (1985). By that time, however, the three year limitation period for bringing a wrongful death action under § 52-555 had passed. Id., 601. On February 4, 1983, the defendants moved to dismiss the action for lack of subject matter jurisdiction on the ground that the plaintiff had failed to comply with the pr ovisions of § 52-555 that state that only an "executor or administrator" may bring an action thereunder. Id., 599. The trial court granted the motion to dismiss and the plaintiff appealed to the Appellate Court. The Appellate Court upheld the court's dismissal for lack of subject matter jurisdiction, stating that a wrongful death action under § 52-555 may be maintained only by an executor or administrator of an estate, and at the time she brought suit the plaintiff was neither. Id., 600-601. The plaintiff brought the present action for wrongful death on June 7,1985, against the same four defendants. The defendants moved to strike the complaint on the ground that it was barred by the statute of limitations contained in § 52-555, which provides that actions for wrongful death must be brought "within two years from the date when the injury is first sustained or discovered or . . . should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of." In granting the motion to strike, the court ruled that: (1) the time limitation for bringing an action under § 52-555 is a limitation of the liability itself and must be strictly complied with; (2) the second cause of action was the same cause of action as the original because it was the decedent's claim for his injuries and death resulting from the same group of facts that made up the defendants' alleged negligence; (3) General Statutes § 52-592, our accidental failure of suit statute, does apply to wrongful death cases; (4) the limitation portion of the wrongful death statute is substantive and may not be waived; (5) a cause of action for wrongful death does not arise and exist so that the statute of limitations can begin to run upon it until an adminis trator is appointed who can bring suit; and (6) the statute of limitations on the plaintiffs suit had run before she was appointed administratrix in September, 1982. The trial court did not further consider the effect of § 52-592 on this case. This appeal followed. Although the parties have framed the issue in different ways, we consider all of the claimed issues to raise the question of whether the accidental failure of suit statute authorizes the plaintiff to bring a new action for wrongful death where the original action was dismissed because at the time it was commenced the plaintiff was in fact not the administratrix of the decedent's estate. We first note certain claims of the defendants with which we agree. It is undisputed that § 52-555 requires that an executor or administrator must bring a wrongful death action within the three year statute of limitations. "[Standing to bring a wrongful death action is . . . conferred only upon either an executor or administrator." Isaac v. Mount Sinai Hospital, supra, 601. It is also undisputed that "[wjhere . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone." (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). We find all of these undisputed principles of law relied upon by the defendants, however, to be irrelevant to the issue involved in this case, i.e., whether the accidental failure of suit statute authorized the bringing of the second action. Our attention, therefore, must be focused on the accidental failure of suit statute, General Statutes § 52-592. The case of Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 99 A. 1048 (1917), furnishes an unusually strong foundation on which to build our analysis of the effect of § 52-592 on this case. In Korb, the plaintiff administrator brought an action under the provisions of § 4 of chapter 193 of the Public Acts of 1903 to recover for personal injuries resulting in the death of his intestate decedent. The pleadings revealed that the action was not commenced within one year from the neglect complained of as then required by the statute. The action was, however, commenced within one year after the entering of a judgment of nonsuit on a former action for the same cause begun within one year from the neglect. After a verdict and judgment for the plaintiff the defendant appealed, claiming, among other things, that the court erred in overruling its earlier demurrer to the complaint which contended that under the circumstances described above the plaintiff had not presented a good cause of action. Id., 396. We concluded that the wrongful death statute involved created a liability unknown to common law and that the proviso therein limiting the time to bring an action under it to one year from the neglect complained of was something more than an ordinary statute of limitations. Id., 397. We stated that since the liability and the remedy were created by the same statute, the limitations of the remedy were to be treated as limitations of the right, and that if liability was to attach to the claimed offender, the statutory provision prescribing the limitation should be strictly observed. Id. We noted that if the wrongful death statute stood by itself, unaffected by other legislation, there could be no question but that the plaintiffs action had not begun seasonably and must fail. Id. We then noted: "We have, however, in § 1127 of the General Statutes a statute which is not to be ignored. It provides, among other things, that if any action, commenced within the time limited by law, shall fail for the reason, among others, that a judgment of nonsuit is rendered therein, the plaintiff may commence a new action for the same cause or subject of action at any time within one year after the determination of the original action. The language of this section, read in its natural meaning, appears to fit the present situation exactly, and to provide for an extension of the time limitation for the bringing of an action upon § 4 of the Act of 1903 under the conditions existing in the present case." (Emphasis added.) Id., 397-98. The defendant in Korb argued that the extension statute involved had no bearing or effect upon limitations contained in statutes creating a right and made an essential condition of the existence of that right. We held: "Section 1127 provides that if any action, commenced within the time limited by law, shall fail for specified causes, the plaintiff may bring a new action for the same cause within one year after the determi nation of the original action. This language certainly is general and comprehensive. It neither embodies exceptions or reservations, nor suggests any. The extension of time is in terms made applicable to all cases where a suit, seasonably begun, has failed for the causes stated. . . . The provision is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes. Those hardships are the same in character whether the statute be one which concerns the remedy only, or the right as well as the remedy. It should be so construed as to advance the remedy rather than to retard it." Id., 401-402. We concluded that the time limitation in the wrongful death statute must be read together with the extension statute. The extension statute operated as a modification of the wrongful death statute and the defendant's demurrer was properly overruled. Id., 402. In this regard, we find that in the present case our accidental failure of suit statute, General Statutes § 52-592, controls the outcome of this case, not the wrongful death statute, as the defendants claim and as the trial court ruled. We have consistently held that our accidental failure of suit statute, General Statutes § 52-592, "is remedial and is to be liberally interpreted." Ross Realty Corporation v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); accord Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 596 (1888) (a very liberal construction is given to saving statute). Keeping this in mind, we turn to the relevant criteria in § 52-592 that the plaintiff must satisfy in order to prevail: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction, or the action has been otherwise . . . defeated . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause . . . within one year . . . ." The plaintiff claims that her second suit meets all of the statutory requirements. The first issue is whether the original suit was an "action" within the meaning of § 52-592. In Baker v. Baningoso, supra, the plaintiff brought a second wrongful death action after the statute of limitations had run. The plaintiff claimed that the accidental failure of suit statute modified the wrongful death act and thus gave him an additional year to bring suit. We said: "Section 6024 [accidental failure of suit statute] does modify § 1005h [wrongful death statute] if the circumstances bring the case within its terms." Id., 386, citing Korb v. Bridgeport Gas Light Co., supra. General Statutes § 52-45a provides in pertinent part that "[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint." The plaintiffs suit met this straightforward statutory summary of the contents of a "civil action." In Carbone v. Zoning Board of Appeals, 126 Conn. 602, 13 A.2d 462 (1940), we held that the word "action" in the accidental failure of suit statute then in effect did not include administrative appeals. We said: "In Korb v. Bridgeport Gas Light Co., [supra], a case which the trial court held to be decisive of the issue presented on the demurrer, we held that § 6024 applied not only to obviate the running of statutes of limitation but also as regards limitations of time inherent in a cause of action created by statute. We pointed out (p. 401) that the language of the statute was general and comprehensive, neither embodying nor suggesting reservations or exceptions; that the extension of time was in terms made applicable to all cases where a 'suit' seasonably begun had failed for the causes stated; and that if there is to be any restriction, it must be the result of legal construction the reasons for which were not apparent. The action then before us was one brought as an ordinary civil action, and it was of such actions we were speaking. The reasons for construing the word 'action' in the statute as not including such a peculiar and wholely statutory proceeding as the one before us are not only apparent but compelling." Id., 606-607. In Carbone we found such a reason in the fact that the fixing of brief periods for administrative appeals was evidently designed to secure a speedy determination of the issues involved. We concluded that to hold that an administrative appeal is an "action" within the meaning of § 6024 would have the practical effect of eliminating the time factor in taking such appeals. Id., 607. Unlike Carbone, in this case, we see no reasons for a legal construction that would restrict the broad scope of the word "action" in the statute. " 'In a general sense the word "action" means the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides.' " Dayco Corporation v. Fred T. Roberts & Co., 192 Conn. 497, 502, 472 A.2d 780 (1984), quoting Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 A. 198 (1901). The plaintiff's suit obviously meets the Dayco definition of an "action." The defendants do not take issue with the legal precepts cited above. They do, however, vigorously claim that the first suit was not an action because without an administratrix to bring suit within the time limitation contained in the wrongful death statute, no timely action was commenced by the claimed administratrix. In other words, they claim that because the first suit never legally existed, there was no action that could be saved by § 52-592. This claim was firmly answered by Judge Cardozo in Gaines v. New York, 215 N.Y. 533, 540, 109 N.E. 594 (1915), where, in a case concerning the applicability of New York's saving statute, the court stated the following: "The defendant argues that an action dismissed for want of jurisdiction is a nullity in the same sense as if it had never been begun at all. But that is an extreme view. Such an action has at least some of the consequences of an action begun in a court of competent jurisdiction." The defendants also stress the holding in Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987), where we stated that the time limitation in our wrongful death statute is a limitation on the liability itself and not of the remedy alone. The defendants' arguments, however, prove nothing. These arguments overlook our clear ruling in Korb that the hardships sought to be remedied by the accidental failure of suit statute are the same whether the statute be one which concerns the remedy only, or the right as well as the remedy. Korb v. Bridgeport Gas Light Co., supra, 401. Furthermore, our statement in Ecker v. West Hartford, supra, that where a time limitation is contained in a statute creating a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter, cannot be considered in isolation. That undoubtedly correct statement of the law was made in a case that did not involve § 52-592. The plaintiff's claim to a valid resurrection of her case under § 52-592 is readily reconciled with this statement in Ecker if we add to the phrase that the cause of action exists "only during the prescribed period and not thereafter" the words "unless saved by the accidental failure of suit statute." Although their propositions of law are, concededly, correct, the defendants are only restating the grounds on which the first suit was dismissed. These claims have validity only if the accidental failure of suit statute did not exist. We conclude that, contrary to the defendants' claims, the plaintiff's first suit was an "action" fitting precisely within the scope of the "actions" which § 55-292 was designed to save under the circumstances listed therein. The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman next claim that the trial court's granting of the defendants' motion to dismiss for want of subject matter jurisdiction was equivalent to a trial on the merits. The defendants have cited no authority in support of their claim. "In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. GHK Exploration Co. v. Tenneco Oil Co., 857 F.2d 1388, 1392 (10th Cir. 1988); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 301, 521 A.2d 1017 (1987); Rhodes v. Hartford, 201 Conn. 89, 92, 513 A.2d 124 (1986); Davis v. Board of Education, 3 Conn. App. 317, 320, 487 A.2d 1114 (1985)." Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 (1989). In view of the defendants' failure to cite any persuasive authority to the contrary, we decline further review of this claim. The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman also briefed the argument that § 52-592 is inapplicable because the plaintiff in the first suit is not the same plaintiff as in the subsequent suit. They claim that the person actually bringing the first suit was Deborah Isaac, individually, as opposed to Deborah Isaac, administratrix, who brought the second suit. It is difficult to conceive of a closer identity of interest than that found in this case. The defendants' argument ignores the fact that the named plaintiff in each case was "Deborah Isaac, Administratrix." The fact that Deborah Isaac in the first case was not, in fact, the administratrix of the estate of Redgnard Isaac does not destroy the identity of interest but merely paves the way for the plaintiffs invocation of § 52-592. "[A] change of parties does not preclude an application of [a saving] statute where the change is merely nominal or the interest represented in the renewed action is identical with that in the original action." 51 Am. Jur. 2d, Limitations of Actions § 318. In light of the remedial purpose of § 52-592, we conclude that total identity of plaintiffs is not a prerequisite to application of the statute. We look, instead, to the essence of the plaintiffs status and the interest she represented. Deborah Isaac was the purported administratrix of Redgnard Isaac's estate in the first instance and the actual administratrix in the second case. The cause of action and the claimed factual background, as well as all defendants, were identical in both instances. Accordingly, application of § 52-592 to this case is not precluded. In view of our disposition of the case, we do not reach the plaintiff's alternative claim, pursuant to § 52-592, that the first action was defeated for a matter of form. In Gaines v. New York, supra, 539, the original action had been brought to a court that lacked subject matter jurisdiction. In upholding the maintenance of the plaintiff's subsequent suit under the savings statute Judge Cardozo said: "The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." Id. We, likewise, decline to "fritter away" the strong remedial purpose of our saving statute, § 52-592. There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings. In this opinion the other justices concurred. General Statutes § 52-592 (a) provides in relevant part: "accidental failure of suit; allowance OF A NEW action, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient-service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." "[General Statutes] Sec. 52-555. actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of." The plaintiff framed the issue as follows: "If Section 52-592 allows a second action for the same cause of action to be brought when a complaint has been served within the statute of limitations but is dismissed for lack of subject matter jurisdiction or any matter of form, and if this statute must be liberally construed in favor of the plaintiff, and if plaintiff, in her capacity as administratrix, caused a complaint to be served on defendants within the statute of limitations, and if plaintiff had not yet been formally appointed administratrix through mistake, and if plaintiff's first action was dismissed because lack of a valid administratrix deprived the court of subject matter jurisdiction, and if plaintiff, after being appointed administratrix, filed a second action within one year for the same cause of action, should not the trial court have allowed plaintiff's second action?" The defendant Anesthesia Associates, P.C., framed the issue as follows: "Whether or not the administrator of the estate of a decedent who is appointed more than three years after the death of the decedent can maintain an action for wrongful death under Conn. Gen. Stat. Sec. 52-555?" The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman framed the issue as follows: "Whether the accidental failure of suit statute, General Statutes section 52-592, enables a wrongful death action to be brought when the administratrix was not appointed until after the right of action had expired, or when the plaintiff in the failed suit is not the same plaintiff as in the subsequent suit."

The defendant's motion for the entry of a final judgment in his favor in the appeal from the Superior Court in New Haven County is denied.

The application by the defendants William and Constance Whitehead to expedite the appeal from the Superior Court in Fairfield County at Stamford is denied.

The plaintiff's motion to dismiss the appeal from the Superior Court for the judicial district of Waterbury is dismissed.

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

The defendant's petition for an order permitting his presence at the argument of his appeal is denied.

Glass, J. The defendant, Rex Snook, was charged in a substitute information with one count of sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (4), two counts of risk of injury to a minor, in violation of General Statutes § 53-21, and one count of sexual assault in the third degree, in violation of General Statutes § 53a-72a (a) (2). After a jury verdict of guilty as charged on all four counts, the trial court sentenced the defendant to incarceration for a total effective sentence of twenty-two and one-half years to twenty-five years. The defendant appeals from the judgment rendered on the verdict. We find no error. Prior to trial, the state moved to have the testimony of the minor victim, the defendant's eight year old daughter, taken on videotape outside the physical presence of the defendant, pursuant to General Statutes § 54-86g. Over the defendant's objection, the trial court granted the state's motion without an evidentiary hearing. At trial, the victim's videotaped testimony was admitted into evidence over the defendant's objection. The jury could reasonably have found the following facts. The victim was born on January 19, 1978, and lived with her parents in Guilford. On January 10,1984, the victim disclosed to her mother that the defendant on several occasions had awakened the victim at night, brought her into the bathroom, and performed oral and vaginal intercourse with her. In her videotaped testimony, the victim related two incidents in which the defendant engaged in various sexual activities with her while they had left the house to go for a walk and to fly a kite. The victim testified that on another occasion, the day of her birthday, while her mother was out shopping for a birthday present, the defendant brought her into a closet in their house, removed his pants and her pants, and rubbed her vagina. He then made her sit on his penis. This incident was interrupted when the defendant heard the mother's car door slam. The victim's mother testified that the last incident occurred on the victim's fifth birthday. In early 1984, the victim substantially repeated the information she had disclosed to her mother to a psychologist, a social worker, and a detective of the Guilford police department, all of whom testified at the trial. The state also presented evidence that for one and one-half to two years after the victim had turned two years old, the victim experienced bed wetting and urine and stool incontinence. The victim was periodically treated by pediatricians, who noted instances of vaginal inflammation, irritation and discharge. The defendant appealed his conviction, asserting several errors in the trial, including the claim that the trial court erred in granting the state's motion to videotape the victim's testimony under General Statutes § 54-86g without requiring any evidence on whether the victim would be harmed by testifying at the trial before the defendant. On October 2,1987, we remanded this case to "afford an opportunity to supplement the record at an evidentiary hearing addressing the criteria set forth in State v. Jarzbek, 204 Conn. 683, 704-705 [529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988)]. . . ." At the remand hearing, the state and the defendant were permitted to present evidence. The state was required to demonstrate by clear and convincing evidence that the "minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim's testimony would be seriously called into question." Id., 705. On June 6,1988, the trial court issued a memorandum of decision following the hearing on remand, in which it found "beyond a reasonable doubt" that the victim's fears and anxieties concerning the defendant were so great that the physical presence of the defendant would so intimidate her as seriously to call into question her reliability as a witness. In his initial and supplemental briefs, the defendant claims that: (1) General Statutes § 54-86g is unconstitutional as written and as applied to him since it permitted the trial court to allow the victim's testimony to be videotaped outside his presence without any evidence of need, and further, that the remand hearing in this case was improper since the state should not have been allowed to "create" a record retroactively on this issue; (2) the trial court erred in allowing the state to add a second count of risk of injury to a minor after the victim's testimony was taken; (3) there was insufficient evidence to convict him of the added risk of injury count; (4) the convictions and subsequent consecutive sentences for the two risk of injury counts, and the convictions and subsequent consecutive sentences for the crimes of sexual assault in the second degree and sexual assault in the third degree, both violated his constitutional rights against double jeopardy; (5) the second degree sexual assault charge for which he was prosecuted, under General Statutes § 53a-71 (a) (4), does not apply to sexual intercourse between a parent and his child; (6) the trial court's supplemental instructions pertaining to the risk of injury counts did not cure the overbroad and misleading original instructions; and (7) the trial court's instructions on sexual assault in the second and third degrees erroneously misled the jury to believe that the crimes could be committed by "sexual contact" alone. We find no error. I In his supplemental brief, the defendant claims that § 54-86g, as written and as applied, violated his state and federal constitutional rights of confrontation, since it permitted the trial court to grant the state's motion to videotape the minor victim's testimony outside the defendant's physical presence without any evidence demonstrating the need to resort to the videotape procedure. The defendant concedes that he failed to raise the constitutionality of the statute in his original brief, but argues that this claim should be reviewed because he raised it by way of a motion for a new trial subsequent to the order of remand and because the claim implicates fundamental constitutional rights. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). He also claims that our order of remand violated his due process rights by permitting the state to "create" a record on the issue of the need to use the videotape procedure of § 54-86g where no prior record existed. See Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). We agree that this claim implicates the fundamental constitutional right of confrontation and is reviewable under State v. Evans, supra. See State v. Jarzbek, supra. A General Statutes § 54-86g provides in relevant part that "[i]n any criminal prosecution of an offense involv ing assault, sexual assault or abuse of a child twelve years of age or younger, the court may . . . order that the testimony of the child be taken in a room other than the courtroom . [If the court so orders,] the court shall ensure that the child cannot see or hear the defendant." (Emphasis added.) In State v. Jarzbek, supra, 704-705, we held that videotaping the testimony of a minor victim outside the defendant's physical presence is constitutionally permissible only if the state proves by clear and convincing evidence that the defendant's physical presence would seriously call into question the minor's trustworthiness as a witness. Although Jarzbek did not involve a motion made pursuant to § 54-86g, we noted that "the videotaping procedure [the trial court] approved is essentially the same procedure now prescribed by § 54-86g." Id., 686 n.2. This court should " 'try, whenever possible, to construe statutes to avoid a constitutional infirmity,' " but may not do so by rewriting the statute or by eschewing its plain language. Seals v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982). Our order of remand in this case reflects our view that the trial court's discretion under § 54-86g to order the taking of the victim's testimony outside the defendant's physical presence is circumscribed by the criteria established in Jarzbek. In applying the Jarzbek criteria to motions made pursuant to § 54-86g, we rewrite nothing in the language of the statute, but identify those conditions under which the trial court constitutionally may exercise its statutory discretion to grant the motion. In the present case, the trial court, pursuant to our order of remand, conducted an evidentiary hearing to determine whether resort to the videotape procedures of § 54-86g was permissible under Jarzbek. Relying on the testimony of Dr. Ruth Stern, a psychologist testifying for the state, the trial court concluded that the evidence was at least clear and convincing that the defendant's physical presence at the videotaping would seriously have called into question the minor victim's trustworthiness. The defendant, who offered no evidence at the remand hearing, concedes that the state's evidence was sufficient under Jarzbek. In mounting a constitutional claim against § 54-86g as written and applied, however, the defendant does not address how the statute, as applied in accordance with the Jarzbek standards, violates his right to confrontation. Recently, in State v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989), we affirmed the Jarzbek standards as providing sufficient measures to protect the defendant's constitutional right to confrontation. We conclude, therefore, that § 54-86g, as written and as applied in the present case in accordance with State v. Jarzbek, supra, is not unconstitutional. B The heart of the defendant's first claim of error lies in the assertion that the trial court's concededly correct findings on the remand hearing cannot be used to uphold the defendant's conviction. The defendant maintains that a decision on appeal should have been made on the record as it stood prior to the remand hearing, and that the state- should not have had the opportunity retroactively to create a record establishing the need to use the videotape procedure. Consequently, he claims that he should be given a new trial. Contrary to the defendant's assertions, there did exist a "record" at trial supporting the trial court's decision to allow the state's motion. Although no evidentiary hearing on the state's motion had been conducted prior to the defendant's trial, the trial court indicated on the record that it had granted the state's motion on the grounds of the victim's age, her relationship with her father, the court's experience with other child witnesses and the court's "common sense." We agree with the defendant that there was no "record" in the sense of an evidentiary record required by Jarzbek. It was because of this very lack of an evidentiary record, however, that we remanded the case. We are not persuaded that our remand order allowing the court to develop such a record through evidence presented by both parties violated the defendant's right to a fair trial. In support of his argument, the defendant relies on Drope v. Missouri, supra, and Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). Neither case supports the defendant's claim. In Drope v. Missouri, supra, 181, the United States Supreme Court held that the defendant was denied due process when the trial court failed to make an adequate inquiry into his competence to stand trial. The court ruled that the defendant's due process rights would not be adequately protected by remanding the case for an evaluation of his competence to stand trial six years after the trial. The court stated: "Given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances . we cannot conclude that such a procedure would be adequate here." Id., 183. Similarly, in Pate v. Robinson, supra, 387, the court refused to remand the case for a hearing on the accused's competence to stand trial six years after the trial. It indicated that the "need for concurrent determination" of an accused's competence to stand trial was distinguishable from the situation where "on remand the State could discharge its constitutional obligation by giving the accused a separate hearing on the voluntariness of his confession." Id., citing Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Drope and Robinson both concerned the question whether a remand hearing to determine the defendant's competence to stand trial would adequately protect the defendant's due process rights. Neither case purported to adopt criteria for determining the circumstances under which a new trial rather than a limited remand must be ordered. In general, the setting aside of a verdict, as distinct from a limited remand, is not required for due process. State v. Loray, 46 N.J. 179, 184, 215 A.2d 539 (1965). This court has on several occasions remanded a case for the limited purpose of conducting an evidentiary hearing necessary for appellate review of a claim. See, e.g., State v. Badgett, 200 Conn. 412, 433-34, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986) (remanding case for factual hearing to determine whether illegally discovered evidence admissible under recently articulated "inevitable discovery" rule); State v. Pollitt, 199 Conn. 399, 415-16, 508 A.2d 1 (1986) (remanding case for factual hearing to determine whether state suppressed exculpatory evidence); cf. State v. Garrison, 199 Conn. 383, 388-89, 507 A.2d 467 (1986) (where court unable to determine from record whether state established defendant's guilt beyond reasonable doubt, court ordered remand for further articulation of trial court's grounds for rejecting defendant's defenses). In the present case, the trial was held in April and May, 1986. The remand hearing was conducted in February and April, 1988. The two year interval between the trial and the remand hearing does not approach the six year hiatus involved in the Drope and Robinson cases. Moreover, the defendant does not identify any prejudice to his right to a fair trial arising from the lack of a concurrent determination of the state's need to videotape the victim's testimony outside the defendant's presence. We are not inclined to presume such prejudice where the defendant had the opportunity at the remand hearing to challenge the need for the videotaping procedure, and where the defendant has not asserted that evidence concerning the minor victim's psychological orientation toward her alleged abuser at the time of the trial, presented two years after the trial, was unreliable or likely to lead to distortions in the trial court's factual determinations on remand. Cf. Drope v. Missouri, supra, 183. Consequently, we conclude that the defendant's due process rights were not violated by this court's order of remand requiring the trial court to establish an evidentiary record pertaining to the state's motion to videotape the minor victim's testimony pursuant to General Statutes § 54-86g. II The defendant's second claim is that the trial court violated the provisions of Practice Book § 624 and the defendant's constitutional rights to notice of the charges against him when it permitted the state, on April 29, 1986, to file a substitute information adding a second count of risk of injury to a minor after the minor victim's videotaped testimony had been taken. The defendant concedes that no objection was raised to the additional count, but argues that this claim is reviewable under State v. Evans, supra, because it impinges on his fundamental constitutional right to notice of the charges against him. The record discloses that on April 21,1986, the state filed an information charging the defendant with one count each of second degree sexual assault, third degree sexual assault, and risk of injury to a minor. The risk of injury count alleged that "on divers days between June, 1979, and January, 1984, the said Rex Snook wilfully and unlawfully did acts likely to impair the health and morals of [the victim], a child under the age of sixteen years . . . ." In the substitute information dated April -29, 1986, the state amended the original risk of injury count by alleging that "on divers days between June, 1979, and January 18,1983, and between January 20, 1983, and January 11, 1984," the defendant committed acts in violation of § 53-21. An additional risk of injury count alleged that "on or about January 19, 1983, the said Rex Snook wilfully and unlawfully did acts likely to impair the health and morals of [the victim], a child under the age of sixteen years . . . . " The record also discloses that the victim's videotaped testimony was taken on April 29, 1986, in accordance with the trial court order, the same day the defendant was charged with the additional risk of injury count in the substitute information. Where a criminal defendant has failed in the trial court to preserve a claim of error for appellate review, review under State v. Evans, supra, is appropriate " 'where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial.' " State v. Bailey, 209 Conn. 322, 329, 551 A.2d 1206 (1988). "It is the responsibility of the appellant to provide an adequate record for review." Practice Book § 4061. The defendant's second claim of error must fail. Although the record discloses that the taking of the videotaped testimony and the filing of the substitute information occurred on the same day, the record does not disclose which event occurred first. As a predicate to prevailing on this claim, the defendant bore the burden of demonstrating, on the record, that the substitute information was filed after the victim's videotaped testimony was taken. The only relevant information is found in the trial court's comments during a pretrial hearing on May 5,1986, in which the court stated: "On Monday the 28th—I'm sorry—Tuesday the 29th the State filed the long form Information consisting of four counts, two of which are risk of injury, and on late Tues day morning, the 29th of April . . . the Court and the victim had the victim's testimony videotaped pursuant to the statute . . . ." Moreover, the record discloses that the defendant did not object to the additional risk of injury count in the substitute information. On May 5,1986, the defendant entered a plea of not guilty to the substitute information without raising an objection concerning the timeliness of the added risk of injury count. Nor has the defendant sought to clarify the trial court record subsequent to appeal. See, e.g., Practice Book § 4051 (motion to rectify trial court record). Thus, the defendant has failed to avail himself of available procedural devices that would furnish a basis for considering this claim. As a consequence, the defendant has not met his burden of providing us with an adequate record to review his claim. In its present state, the record does not adequately support the defendant's claimed deprivation of a fundamental constitutional right. State v. Evans, supra. Ill The defendant next claims that the evidence was insufficient to establish beyond a reasonable doubt that he violated General Statutes § 53-21 as charged in the third count of the substitute information. As noted above, the third count of the substitute information charged that the defendant, "on or about January 19, 1983," had committed acts likely to impair the health and morals of the victim. The record discloses that January 19,1983, was the victim's fifth birthday. The defendant maintains that, in charging him with committing the crime on the date of January 19,1983, the state bore the burden of proving beyond a reasonable doubt that the acts in question occurred on that date. He claims that the evidence failed to show that he had committed any such acts on that specific date. We disagree. The evidence presented by the state was substantially as follows. The victim's mother testifed that on January 10, 1984, prior to the victim's sixth birthday, the victim disclosed to her certain incidents involving the defendant. On direct examination, the victim's mother testified: "It was on [the victim's] fifth birthday and I had bought some presents for her down at a local store near the house. I left her with Rex and I went down to pick up the birthday present that they had wrapped for me. She told me while I was gone that Rex had taken her into her bedroom closet and that he had done bad things with her in the closet and she said that he heard my car door slam and then they came out of the closet and Rex went to work." In the victim's videotaped testimony, she testified that she remembered an incident that happened inside the house. She testified that "it was my birthday and my mother, my mother . . . went to go shopping for my birthday presents and Rex was there with me and then after when mommy left he took me into my closet. . . . He pulled down his pants then pulled down my pants and then he like rubbed my vagina. . He made me rub it and then he sat down or laid down. He sat down and then he made me sit on his, you know, penis." In addition, the state presented the testimony of a social worker, Lucille Brown, who spoke with the victim on January 18,1984. She testified that the victim related to her an incident in which the defendant while in the house had removed the victim's panties but had pulled them back up when he heard a car door slam. In addition, Brown testified that "I asked her about what time this happened and she said it was around her birthday time." On cross-examination, Brown was asked, "Now, what birthday did you believe she was referring to?" She answered, "Her last birthday." " ' "When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . State v. Benton, 161 Conn. 404, 407, 288 A.2d 411 (1971)." State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); see State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). "The evidence must be given a construction most favorable to sustaining the jury's verdict." State v. Carter, supra.' State v. Findlay, 198 Conn. 328, 333, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986)." State v. Bailey, supra, 349-50. The uncontroverted testimony of the victim's mother was that the incident that took place inside the closet occurred on the victim's fifth birthday, January 19, 1983. Brown interviewed the victim on January 18, 1984, one day before the victim's sixth birthday. Thus, Brown's reference to the victim's "last birthday" referred to January 19, 1983, the date alleged in the substitute information. In addition, the testimony of the victim herself indicated that the incident in the closet occurred on her birthday. Construing this evidence most favorably to sustaining the jury's verdict, we conclude that the jury could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative weight of the evidence established beyond a reasonable doubt that the defendant committed acts likely to impair the health and morals of the minor victim on January 19, 1983. State v. Bailey, supra. IV The defendant next claims that his state and federal constitutional guarantees against double jeopardy were violated by (A) his convictions and subsequent consecutive sentences for the two counts of risk of injury to a minor, and (B) his convictions and subsequent consecutive sentences for the counts charging him with sexual assault in the second degree and sexual assault in the third degree. We are not persuaded. A As noted above, the state, in a substitute information, charged the defendant with two counts of violating General Statutes § 53-21. Count two alleged that between June, 1979, and January 18,1983, and between January 20,1983 and January 11,1984, the defendant committed acts likely to impair the health and morals of the victim in violation of § 53-21. Count three alleged that on January 19,1983, the defendant also committed acts against the victim in violation of § 53-21. After the jury convicted the defendant of both counts, but prior to sentencing by the court, the defendant filed a motion for judgment of acquittal as to count three, claiming that a conviction on both counts two and three violated his state and federal constitutional protections against double jeopardy. The trial court denied the motion, and sentenced the defendant to a term of five to ten years imprisonment for his conviction on count two and a term of ten years for his conviction on count three. The two terms were to be served consecutively. The defendant concedes that the separate counts concerned allegations of separate criminal acts, but contends that count two alleged a continuing course of conduct that the state could not parse into separate crimes by the addition of count three alleging an act of the same character occurring on a separate and specific date. Double jeopardy "prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. Frazier, 194 Conn. 233, 237-38, 478 A.2d 1013 (1984)." State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054 (1985). "Before the double jeopardy prohibition is triggered, however, it must appear . . . that the crimes arose out of the same act or transaction . . . .'' State v. Amaral, 179 Conn. 239, 242, 425 A.2d 1293 (1979). "If a violation of law is not continuous in its nature, separate indictments may be maintained for each violation. Thus, a distinct repetition of a prohibited act constitutes a second offense and subjects the offender to an additional penalty." 21 Am. Jur. 2d, Criminal Law § 267. In the present case, the separate counts alleging risk of injury to a minor arose out of separate acts. The substitute information makes clear that the defendant was charged with violating § 53-21 as a result of at least two separate transactions: any acts occurring between June, 1979, through January 11, 1984, excepting January 19, 1983; and acts occurring on January 19, 1983. We disagree with the defendant that count two alleged "a violation of law continuous in nature," such that a separate count alleging a violation of § 53-21 on a specific date was impermissible. The failure of the state to obtain more specific information as to the date or dates of the acts alleged in count two did not render the defendant's criminal conduct "a violation of law continuous in nature." Section 53-21 as charged does not proscribe a continuing course of criminal conduct but proscribes "acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). "This court's opinions pursuant to § 53-21 make it clear that an act injurious to the physical well-being of a child is prohibited." State v. Eason, 192 Conn. 37, 47, 470 A.2d 688 (1984). As we stated in an analogous context, "each separate act of forcible sexual intercourse constitutes a separate crime. . . . A different view would allow a person who has committed one sexual assault upon a victim to commit with impunity many other such acts during the same encounter." State v. Frazier, 185 Conn. 211, 229, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); see also State v. Giannotti, 7 Conn. App. 701, 709, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986) (each individual act or attempted act of forcible sexual intercourse constitutes separate crime; therefore, double jeopardy no bar to prosecution for separate acts of forcible sexual intercourse). If we adopted the defendant's reasoning, the commission of one act likely to impair the health and morals of a minor would insulate the perpetrator from further criminal liability for any additional acts of the same character perpetrated on the same minor in subsequent encounters. Such a result defies rationality. A distinct repetition of an act prohibited by § 53-21 constitutes a second offense. Cf. State v. Eason, supra. In the present case, the acts alleged and proven to have occurred on January 19, 1983, constituted an offense distinct from the crime alleged in count two. Cf. State v. Thompson, supra, 72-73 (because the sale of cocaine on separate dates five days apart was not one transaction, state properly charged defendant with separate offenses). Consequently, double jeopardy did not bar the trial court from rendering a judgment of conviction on counts two and three of the substitute information and imposing consecutive sentences thereon. State v. Amaral, supra. B The defendant also claims that his conviction and subsequent consecutive sentencing for the crimes of sexual assault in the second degree and sexual assault in the third degree violated his state and federal rights against double jeopardy. The defendant concedes that this issue was not raised at trial, but maintains that we should review this claim under State v. Evans, supra. The state, on the other hand, argues that the defendant has "waived" the claim of double jeopardy, and relies on State v. Price, 208 Conn. 387, 544 A.2d 184 (1988), and State v. Jones, 166 Conn. 620, 353 A.2d 764 (1974). In State v. Price, supra, 390, we stated: "Whether a defendant may raise a defense of double jeopardy on appeal, when that issue was not raised at trial, is a question that this court addressed, and resolved against the defendant, in State v. Jones, [supra]. There, as in this case, the defendant 'proceeded to trial, verdict and judgment without raising [a double jeopardy] claim.' Id., 630. We held that 'in so doing he impliedly waived the defense of double jeopardy, and, therefore, that issue [was] not before us for determination on the merits.' Id." The state's reliance on Jones and Price is misplaced. Those cases did not involve a claim of double jeopardy based on multiple punishments for convictions obtained at a single trial. In State v. Devino, supra, 73, however, the defendant claimed for the first time on appeal that his conviction for both the possession and sale of cocaine violated the double jeopardy prohibition against multiple punishments for the same offense. We stated: "Since this claim involves a question of a fundamental constitutional right, it is reviewable under State v. Evans, [supra]; see State v. Amaral, [supra, 242]; State v. Goldson, 178 Conn. 422, 423, 423 A.2d 114 (1979)." Id. Both decisions cited in Devino also involved claims pertaining to the double jeopardy prohibition against multiple punishments. See State v. Amaral, supra, 242 (claim of multiplicity arising from trial court's treatment of heroin charges as separate crimes); State v. Goldson, supra (transportation lesser included offense of crime of possession of heroin). Because the defendant's claim falls within the Devino line of cases, review of this unpreserved claim under State v. Evans is appropriate. " ' "Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." ' " State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988). " '[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) . . . . " State v. Palmer, supra. The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact. United States v. Papa, 533 F.2d 815, 820 (2d Cir.), cert. denied, 429 U.S. 961, 97,S. Ct. 387, 50 L. Ed. 2d 329 (1976); see also United States v. Crumpler, 636 F. Sup. 396, 398 (N.D. Ind. 1986) (defendant bears burden of proof on double jeopardy claim); United States v. Price, 533 F. Sup. 1183, 1187 (W.D.N.Y. 1982) (ordinarily, defendant shoulders burden of showing that offenses are the same); cf. United States v. Kamins, 479 F. Sup. 1374, 1378 (W.D. Pa. 1979) (in conspiracy cases, once defendant establishes prima facie, nonfrivolous claim that offenses the same, burden of persuasion shifts to state). The defendant does not even address the first issue whether the second and third degree sexual assault charges arose out of the same transaction. As the facts recited above make clear, the state introduced evidence of a number of episodes in which the defendant engaged in sexual intercourse with the victim. Both counts one and four alleged that the defendant committed the prohibited act or acts on "divers days between June, 1979, and January, 1984." The state points out that the jury could have relied on evidence of one act to convict the defendant of count one, and evidence of a different act to convict him of count four. Thus, the defendant has failed to meet his initial burden of demonstrating that his conviction on the second and third degree sexual assault charges arose out of the same act. United States v. Papa, supra. Even if we assume that the convictions on both counts arose out of the same act, the defendant concedes that there are "elemental distinctions" between the offenses of second and third degree sexual assault as charged. Under count one, alleging second degree sexual assault in violation of General Statutes § 53a-71 (a) (4), the state was required to prove the defendant engaged in sexual intercourse with the victim, that the victim was less than eighteen years of age and that the defendant was the victim's guardian or was otherwise responsible for the general supervision of her welfare. Under count four, alleging third degree sexual assault in violation of General Statutes § 53a-72a (a) (2), the state was required to prove sexual intercourse with the victim whom the defendant knew to be related to him within the degrees of kindred specified in § 46b-21. We disagree with the defendant that these "elemental distinctions" do not result in the creation of distinct offenses. The state could have proven all the elements of § 53a-71 (a) (4) and not convicted the defendant of § 53a-72a (a) (2) if it had failed to prove that he knew that he was related to the victim within the degrees of kindred specified in § 46b-21. Similarly, the state could have proven all the elements of § 53a-72a (a) (2) and not convicted the defendant of § 53a-71 (a) (4) if it had failed to prove, for example, that the victim was less than eighteen years of age. See State v. Silver, 139 Conn. 234, 244, 93 A.2d 154 (1952). Thus, it is quite clear that each charge required proof of facts that the other did not. Consequently, the consecutive sentences imposed on the defendant for his convictions for second and third degree sexual assault as charged do not violate double jeopardy. State v. Palmer, supra. V The defendant next claims that the trial court erred in denying his motion for judgment of acquittal on count one of the substitute information charging him with violating General Statutes § 53a-71 (a) (4). The defendant argues that charging him with violating subsection (a) (4) was incorrect since the defendant, as the natural parent of the victim, does not fall within the restrictive class of persons in that subsection. The defendant relies primarily on the dissenting opinion in State v. Burney, 189 Conn. 321, 330, 455 A.2d 1335 (1983) (Shea, J., dissenting). In State v. Burney, supra, 324, we held that the trial court erred in failing to grant the defendant's motion for judgment of acquittal for the count alleging a violation of § 53a-71 (a) (4), then appearing as subsection (a) (3), because the state had failed to prove beyond a reasonable doubt that the defendant was responsible for the general supervision of the complainant's welfare. We found that the statutory phrases "responsible for" and "general supervision" were ambiguous, and concluded that the degree of responsibility and supervision that the state was required to prove were greater than the facts in that case. Id., 328. Although there was evidence that the defendant might have been the complainant's natural father; id., 323-24; our holding did not even remotely address the question whether a natural parent did not fall within the provisions of subsection (a) (4). The dissent in Burney disagreed with the interpretation given the statute by the majority, and would have upheld the defendant's conviction, despite the fact that there was evidence that the defendant was the complainant's natural father. Id., 331-32. The present defendant, nevertheless, emphasizes the dissent's observation that subsection (a) (4) was derived from § 213.3 (b) of the Model Penal Code of the American Law Institute. Id., 330. In a footnote, the dissent cited comment 3 to the Model Penal Code provision, which states, in relevant part: " 'Of course, intercourse with a natural or adopted child constitutes incest under Section 230.2 of the Model Code.' " Id., 330 n.2. "Where the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature." Sutton v. Lopes, 201 Conn. 115, 118, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986). "Moreover, courts should not imply exceptions to a statute which the legislature did not prescribe by word or implication." Caulkins v. Petrillo, 200 Conn. 713, 719, 513 A.2d 43 (1986). Unlike the court in Burney, we are not faced with an ambiguity in the statute as applied to the facts of this case. We perceive nothing in the language of the statute, which provides that the actor must be "such [victim's] guardian or otherwise responsible for the general supervision of such [victim's] welfare," that suggests that natural parents were intended to be excluded from the class of persons subject to liability. Indeed, it is manifest that this language includes natural parents, as long as such parents are "guardians" or have maintained the requisite level of responsibility for the child's general supervision under Burney. Further, even if we were persuaded that the language of § 53a-71 (a) (4) was ambiguous, the language cited above from the Model Penal Code comments would not alter our opinion. The comment simply notes that "intercourse with a natural or adopted child constitutes incest . . . ." The comment does not, however, indicate whether the drafters of the Model Penal Code intended to exclude natural parents from prosecution under § 213.3 (b). Consequently, we conclude that the defendant, as the natural parent of the victim, was subject to prosecution under General Statutes § 53a-71 (a) (4). Therefore, the trial court did not err in denying the defendant's motion for judgment of acquittal on count one. VI The defendant next claims that the trial court erroneously instructed the jury to consider both statutory alternatives of the crime of risk of injury to a minor, and that its subsequent instructions informing the jury to consider only the alternative charged came only after the jury had deliberated for a lengthy period of time and, therefore, did not cure the error. Consequently, the defendant claims that it was reasonably possible that the jury, in convicting him, erroneously considered a statutory alternative of risk of injury with which he had not been charged. See State v. Newton, 8 Conn. App. 528, 537-38, 513 A.2d 1261 (1986) (trial court erroneously enlarged crime of risk of injury to minor by instructing jury on both types of prohibited conduct where state charged the defendant with only one). The state, however, argues that this claim should not be reviewed because the defendant did not except to the trial court's final instructions, which the defendant concedes to be correct, and he has not sought review under State v. Evans, supra. As noted above, the defendant was charged with two counts of risk of injury to a minor under General Statutes § 53-21 alleging that he "did acts likely to impair the health and morals of [the victim]." In its initial charge to the jury, however, the trial court read § 53-21 in its entirety, as follows: " '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 his 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 is guilty of injury or risk of injury to or impairing the morals of such child.' " Defense counsel interposed no exceptions to the charge on the risk of injury counts. The record discloses that the state requested the trial court to reinstruct the jury that, on the risk of injury counts, the defendant could be found guilty if the acts alleged in the information were "either likely to impair the health or likely to impair the morals" of the the victim. Apparently as the result of some confusion with the state's request, however, the trial court recalled the jury and reinstructed them as follows: "I want to point out to you I said or. It's either of those things: That he placed her in such a situation that her health was likely to be impaired or her morals likely to be impaired or that he did any act likely to impair the health or morals of [the victim]." The jury resumed deliberations immediately after this portion of the court's reinstructions. At that point, the trial court requested further exceptions. Defense counsel stated: "Just the one pointed out by [the prosecutor] that, in fact, the Information was specific and that [the defendant] wasn't charged with placing [the victim] in a position where her health or morals would be injured but rather committing acts, and your Honor did mention placing her in the position where her health and morals might be affected." Thereafter, the trial court again recalled the jury, and instructed them as follows: "I'm going to read to you what is the correct portions of the statute as alleged by the state . . . and I ask you to disregard my charging you on risk of injury . . . with respect to this element of placing. That's not an element for you to consider. The statute as it applies in counts two and three reads as follows: Any person who does any act likely to impair the health or morals of any child under the age of 16 years is guilty of injury or risk of injury to or impairing the morals of such child." In claiming that the corrective instructions came only after the jury had deliberated at length under specific but erroneous instructions, the defendant acknowledges his failure to except to the revised charge at a time when an exception should have been taken. "An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial." State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); see State v. Dahlgren, 200 Conn. 586, 594-95, 512 A.2d 906 (1986). In the present case, "[t]he exception taken to the charge was not sufficient to alert the trial court to any alleged error while there was still time to correct it without ordering a retrial." State v. Dahlgren, supra. " 'The failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal. See Practice Book § 854, [4185]. In the absence of a specific timely exception, a claim of error is "reviewable as an exceptional circumstance within the doctrine of State v. Evans, [supra], only when the defendant can demonstrate that he has clearly been deprived of a fundamental constitutional right and a fair trial . . . ." ' " State v. Utz, 201 Conn. 190, 208, 513 A.2d 1191 (1986). Because the defendant's claim facially implicates a constitutional right; see State v. Ruiz, 171 Conn. 264, 269, 368 A.2d 222 (1976) (elementary to criminal law that accused is required to defend only against alleged charges); we must undertake a limited review of the record to determine whether it adequately supports the defendant's claim. State v. Newton, supra, 533-34. Our review of the record convinces us that the defendant has not been deprived of a fundamental constitutional right and a fair trial. In a criminal case, an error in jury instructions that is of constitutional dimensions requires reversal only if, when the charge is read as a whole, it is reasonably possible that the jury was misled. State v. Bailey, supra, 338. "[W]e consider the supplemental charge together with the allegedly erroneous original comment in determining prejudicial impact . . . . " State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985). The record indicates that the trial court recalled the jury from its deliberations and expressly ordered the jurors to disregard that aspect of General Statutes § 53-21 relating to placing the victim in a situation where her health or morals may be injured or impaired. "[Ajbsent a fair indication to the contrary, we presume that these instructions were followed." Id. In light of the trial court's final curative instructions expressly removing from the jury's consideration a statutory basis of liability for which the defendant was not charged, we conclude that it was not reasonably possible for the jury to have been misled. State v. Bailey, supra. VII Finally, the defendant claims that it was reasonably possible that the trial court's instructions misled the jury to believe that the defendant could be convicted on count one, alleging sexual assault in the second degree, and count four, alleging sexual assault in the third degree, both of which require proof of sexual intercourse, by proof of "sexual contact" alone. See General Statutes § 53a-71 (a) (4) and 53a-72a (a) (2). We are not persuaded. On count one, the trial court instructed the jury substantially as follows: "That statute reads, 'A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person . . . . ' Obviously, the State has to prove the elements of that statute are that the defendant engaged in sexual intercourse with another person . . . ." The court thereafter stated: "Assault, as we use it in the criminal law and in this Statute, is the intentional or unauthorized touching of or contact with another person. . A sexual assault, therefore, is the intentional, unauthorized touching or contact with the intimate parts of another person. Another element of that statute is the phrase sexual intercourse." Thereafter, the trial court defined the term "sexual intercourse." On count four, the trial court instructed the jury: "The fourth count is . . . sexual assault in the third degree in which the State alleges that . . . the Defendant, Rex Snook, did engage in sexual intercourse with [the victim] . I'm not going to redefine the words or phrases of sexual intercourse with you because I have done that . Briefly, I want to turn to one other definition that I think you should keep in mind . I mentioned to you earlier when I was defining sexual assault in the second degree . . . I was defining to you as you recall an assault as being the intentional or unauthorized touching of or contact with another person and I told you the severity of that touching is not important as long as it is intentional and I told you that a sexual assault is, therefore, the intentional, unauthorized touching or contact with the intimate parts of another person." Immediately after the charge was given, defense counsel excepted to the instructions on counts one and four, claiming that the trial court's reference to "sexual contact" was misleading. The court recalled the jury and reinstructed them as follows: "With respect to the charge of sexual assault in the second degree . a person is guilty of sexual assault in the second degree when such person engages in sexual intercourse . . . that's one of the elements that the State has to prove . [W]ith respect to sexual assault second degree you would have to find beyond a reasonable doubt, of course, that [the defendant] engaged in sexual intercourse with [the victim] . . . . " Although the trial court made no reference to its previous instructions on sexual assault in the third degree, the defendant did not except to this omission. Subsequently, the trial court, recalling the jury once again in response to a jury question pertaining to another matter, stated: "With respect to the first and fourth counts, the first count is sexual assault in the second degree and I have explained to you what that means and it includes the allegation of sexual intercourse. The fourth count is sexual assault third degree and that includes an allegation or definition of sexual intercourse but if you believe, based on the testimony beyond a reasonable doubt that the State has proven that an act of sexual intercourse occurred, then that would be sufficient to apply to those counts." The defendant asserts that the trial court's original charge could have misled the jury to believe that the defendant could be found guilty on both counts one and four on the basis of a finding of "sexual contact" alone, even though both crimes required proof beyond a reasonable doubt of sexual intercourse. He further maintains that the trial court's subsequent instructions did not cure this error. The state argues, on the other hand, (1) that this claim is unreviewable because the defend ant did not except to the supplemental charge, which he now claims did not cure the original error, and does not seek review under State v. Evans, supra, and (2) that even if his claim is reviewed, the jury instructions, when read as a whole, could not reasonably have misled the jury to believe that the defendant could be found guilty on counts one and four without a finding of sexual intercourse. We disagree with the state's argument that the defendant's claim is unreviewable. Although the defendant failed to take an exception after the trial court had delivered its supplemental instructions, the defendant's claim that the trial court's charge permitted the jury to convict the defendant on counts one and four by proof of sexual contact rather than sexual intercourse goes to the defendant's elemental due process right not to be convicted unless " 'the state establishes] beyond a reasonable doubt every essential fact necessary to establish the crime charged . . . " State v. Stevenson, 198 Conn. 560, 568, 504 A.2d 1029 (1986). The defendant's claim, therefore, facially implicates a fundamental constitutional right and the right to a fair trial. State v. Evans, supra. We agree with the defendant that the trial court's reference to "sexual contact" in relation to both counts one and four was incorrect. The crimes charged against the defendant in both counts required proof of "sexual intercourse." The trial court's definition of "sexual assault" as the "intentional or unauthorized touching of or contact with the intimate parts of another person," is not an element of General Statutes § 53a-71 (a) (4) or 53a-72a (a) (2). The trial court's instructions on "sexual contact," therefore, were inappropriate. This, however, does not end our inquiry. As noted above, the instructions as a whole must be reviewed to determine whether the trial court committed reversible error. An error of constitutional dimension requires reversal only if it is reasonably possible that the jury was misled. State v. Bailey, supra. Regarding the trial court's instructions on count one, alleging sexual assault in the second degree, the record indicates that it is not reasonably possible that the jury was misled by the trial court's reference to "sexual contact" to believe that it could convict the defendant without proof beyond a reasonable doubt of sexual intercourse. At the outset of its instructions, the court twice indicated that, for the defendant to be convicted, the state had to prove that the defendant engaged in "sexual intercourse." Moreover, in its supplemental charge, the court reiterated the requirement of sexual intercourse, and made no mention of "sexual contact." Finally, the court, in response to an unrelated question from the jury, reaffirmed that sexual assault in the second degree includes the element of sexual intercourse. Further, while the court expressly instructed the jury on numerous occasions that it had to find "sexual intercourse" to convict the defendant of § 53a-71 (a) (4), it never expressly or impliedly indicated that "sexual contact" was a sufficient or alternative basis of liability. Moreover, in the specific passage of which the defendant complains, the trial court, after discussing "sexual contact," stated: "Another element of [§ 53a-71 (a) (4)] is the phrase sexual intercourse." These instructions, therefore, may have led the jury to believe that the state was required to prove both an "intentional, unauthorized touching . . . with the intimate parts of another" as well as sexual intercourse. Thus, the "sexual contact" instructions may have been favorable to the defendant. See State v. Cochran, 191 Conn. 180, 187-88, 463 A.2d 618 (1983). In light of the trial court's otherwise unambiguous instructions that the state had to prove sexual intercourse under § 53a-71 (a) (4), we conclude that it is not reasonably possible that the court's reference to and description of "sexual contact" within its charge on sexual assault in the second degree misled the jury to believe that it could convict the defendant without proof of sexual intercourse beyond a reasonable doubt. We also conclude that it was not reasonably possible that the jury could have believed it could convict the defendant on count four without finding that sexual intercourse had been proven beyond a reasonable doubt. As with its instructions on count one, the trial court prefaced its charge on count four by indicating that the state's information alleged an act of sexual intercourse. Before concluding this portion of the charge, the trial court stated: "[I]f you find the element in the fourth count which charges sexual assault in the third degree beyond a reasonable doubt, that Rex Snook did engage in sexual intercourse with [the victim] . . . then you would find him guilty of that crime beyond a reasonable doubt." Immediately after these instructions, the court, as it did during its charge on count one, defined "sexual assault" as the "intentional, unauthorized touching or contact with the intimate parts of another person." Again, however, aside from reading that definition, the court did not instruct the jury that "sexual assault" as defined constituted a sufficient or alternative basis of liability. Although the trial court did not refer to count four upon reinstructing the jury the first time, the court, responding to the jury's request for further elaboration on an unrelated matter, stated that "sexual assault third degree . . . includes an allegation of sexual intercourse but if you believe, based on the testimony beyond a reasonable doubt that the state has proven that an act of sexual intercourse occurred, then that would be sufficient to apply to [both counts one and four]." Although it is arguable that the trial court's instructions might have been clearer, we are not persuaded, in light of the instructions as a whole, that the jury could have been misled to believe that it could convict the defendant on count four without finding that the state had proven sexual intercourse beyond a reasonable doubt. There is no error. In this opinion the other justices concurred. General Statutes § 53a-71 (a) (4) provides: "A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is . . . (4) less than eighteen years old and the actor is such person's guardian or otherwise responsible for the general supervision of such person's welfare." Because the state's allegations of sexual assault in the second degree covered a period of time from June, 1979, through January, 1984, the state included in its information General Statutes § 53a-71 (a) (3). In 1983, the legislature amended this statute and renumbered subsection (a) (3) to (a) (4). Public Acts 1983, No. 83-326. The charge of violating § 53a-71 (a) (3) was intended to cover acts occurring before the effective date of the 1983 legislation. 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." General Statutes § 53a-72a (a) (2) provides: "A person is guilty of sexual assault in the third degree when such person . . . (2) engages in sexual intercourse with another person whom such person knows to be related to such person within any of the degrees of kinship specified in section 46b-21." Similar to the charge of sexual assault in the second degree, the state's allegations of sexual assault in the third degree covered a period of time from June, 1979, through January, 1984. Prior to 1980, the prohi bition against sexual intercourse by a person within the specified degrees of kindred of the other appeared in General Statutes § 53a-191. In 1980, the legislature amended these statutes to add subsection (2) to § 53a-72a (a). Public Acts 1980, No. 80-346. Consequently, the state included in its information General Statutes § 53a-191 to cover acts occurring before the effective date of the 1980 legislation. General Statutes § 46b-21 provides: "No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void." General Statutes § 54-86g provides: "(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence of and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. The attorneys and the judge may question the child. The defendant may observe and hear the testimony of the child and may consult with his attorney, but the court shall ensure that the child cannot hear or see the defendant. "(b) If the court orders the testimony of a child to be taken under subsection (a) of this section, the child shall not be required to testify in court at the proceeding for which the testimony was taken." Practice Book § 624 provides: "After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant." Because of our disposition of this issue, we need not address the defendant's assertion that the taking of a minor victim's testimony pursuant to General Statutes § 54-86g, prior to the commencement of jury selection, constitutes the "commencement of trial" for the purposes of Practice Book § 624.

Callahan, J. The named defendant, the city of West Haven (city), appeals from the decision of the compensation review division of the workers' compensation commission dismissing its appeal and denying its motion to open and modify the award of the workers' compensation commissioner for the third district in favor of the plaintiff, Harold J. Collins. The sole issue on appeal is whether the commissioner had jurisdiction to award the plaintiff compensation benefits under General Statutes § 7-433C. Because the plaintiff's notice satisfied the requirements of § 31-294, we conclude that the commissioner had jurisdiction to award such benefits. There is, therefore, no error. This case revolves around the interrelationship of the Workers' Compensation Act; General Statutes, tit. 31, c. 568; and General Statutes § 7-433c. The Workers' Compensation Act was enacted to "provide compensation for any injury 'arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.' Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968)." Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984). Heart disease and hypertension are just some of the many ailments compensable under the act. See, e.g., McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 111-16, 527 A.2d 664 (1987). In order to recover under chapter 568, however, " '[t]he employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment.' McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979)." Bakelaar v. West Haven, supra, 67. Section 7-433c, on the other hand, was enacted to provide "special compensation" to qualifying policemen and firemen who die or become disabled as a result of hypertension or heart disease. Id. It requires the employer to pay compensation to those officers "who have successfully passed a physi cal examination which failed to reveal any evidence of hypertension or heart disease and who subsequently die or are disabled as a result of such conditions" whether or not the " 'disease resulted from the employee's occupation or . . . occurred in the line and scope of his employment.' " Id., 68-69; Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670, 425 A.2d 131 (1979). An employee may, if the facts so warrant, elect to proceed under either chapter 568 or § 7-433c. Bakelaar v. West Haven, supra. It is undisputed in the present case that the plaintiff was a regular, paid, uniformed member of the West Haven police department. Upon entry into the service of the city, the plaintiff underwent a physical examination that failed to reveal any evidence of hypertension or heart disease. On May 2, 1973, while off duty, the plaintiff suffered a heart attack and has since been totally disabled. On July 6,1973, the plaintiff filed a "Form for Notice of Claim for Compensation" with the commissioner. The notice, which is a standardized form provided by the workers' compensation commission, required the plaintiff to fill in basic identification information and to state the nature of his injury. This line of the form reads: "Notice is hereby given that the undersigned, who while in the employ of.....(Name of Employer).....at . (Town) . on the . day of.......19 . . . sustained injuries arising out of and in the course of his employment as follows: (State nature of injury in ordinary language)." The plaintiff in this case typed the following response: "Acute myocardial infarction — hypertension, heart disease." A copy of the plaintiff's notice form was sent to the city and to its insurance carrier, Commercial Union Insurance Company (Commercial Union), with whom the city had contracted to insure itself against workers' compensation claims. The city was self-insured for claims brought under § 7-433c. See Plainville v. Travelers Indemnity Co., supra. It was not until July 16,1975, that a hearing was held before the commissioner on the matter. At this hearing Commercial Union contested its liability to pay compensation under chapter 568 because it considered it doubtful that the plaintiffs illness resulted from his employment. At that hearing the city did not make an appearance to contest its liability under § 7-433c and, therefore, the commissioner decided to delay the rendering of an award. The commissioner rescheduled a hearing for January 21, 1976, to address the claim under § 7-433c and notified the city that it should attend. After the hearing the commissioner issued a finding in favor of the plaintiff awarding him benefits under § 7-433c. In limiting its award to such benefits, the commissioner refused to make a ruling as to the responsibility of Commercial Union under chapter 568. The city appealed the commissioner's award to the Court of Common Pleas in April, 1976. Prior to a decision by the court, the plaintiff filed a motion to remand the matter to the commissioner for further proceedings. The plaintiff's motion was granted by the court on December 22,1977. The remand remained pending before the commissioner until November 30, 1981, when the city filed a motion to open and modify the commissioner's award pursuant to General Statutes § 31-315 "to eliminate all references to § 7-433c, and to provide for liability, if any, based solely on Chapter 568." On April 23,1986, the commissioner denied the city's motion. On April 30, 1986, the city filed a petition with the compensation review division for reconsideration of the commissioner's denial of its motion. The review division refused to find that the commissioner had abused her discretion and upheld her decision denying the city's motion stating that "the use by Claimant of the words 'heart' and 'hypertension' in his own description of his injury certainly justified the Commissioner's interpretation of that choice [of remedies] to be one under Sec. 7-433c." It thereafter dismissed the city's appeal. On April 22,1988, the city filed an appeal from the review division's decision in the Appellate Court. We transferred the matter to ourselves, pursuant to Practice Book § 4023. On appeal, the city argues that the review division erred in refusing to find that the commissioner had abused her discretion when she denied its motion to open and modify the 1976 award in favor of the plaintiff. According to the city, the commissioner lacked subject matter jurisdiction to award the plaintiff benefits under § 7-433c because the plaintiff had failed specifically to notify the city of his intent to proceed under that section within one year from the date of the accident as required by § 31-294. Although the plaintiff filed a notice within weeks of his injury, the city contends that notice was notice only of a workers' compensation claim. The city argues that because "§ 7-433c" was not typed in the notice and not adverted to until the hearing before the commissioner in 1976, there was no timely notice of the § 7-433c claim. We disagree. As we have stated on numerous occasions, while the Workers' Compensation Act and § 7-433c are separate pieces of legislation, "[t]he procedure for determining recovery under § 7-433c is the same as that outlined in chapter 568, presumably because 'the legislature saw fit to limit the "procedural avenue" for bringing claims under § 7-433c to that already existing under chapter 568 rather than require the duplication of the administrative machinery available [under the Workers' Compensation Act] and further burden the courts and the municipalities [with additional litigation from claims by firemen and policemen pursuant to this legislation].' " Bakelaar v. West Haven, supra, 68, quoting Plainville v. Travelers Indemnity Co., supra, 671-72; see Grover v. Manchester, 165 Conn. 615, 617-18, 353 A.2d 719 (1973); Cuccuro v. West Haven, 6 Conn. App. 265, 267, 505 A.2d 1 (1986); Janco v. Fairfield, 39 Conn. Sup. 403, 405, 466 A.2d 1, cert. denied, 199 Conn. 805, 508 A.2d 31 (1983). Section 7-433c, therefore, directs claimants to the provisions of the Workers' Compensation Act; General Statutes, tit. 31, c. 568; to determine how to proceed with a claim for compensation. Section 31-294 states that "[n]o proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . ." That section also requires that a claimant's form of notice "state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom . . . and the name and address of the employee and of the person in whose interest compensation is claimed." (Emphasis added.) Compliance with § 31-294 is essential to maintaining a claim for compensation under chapter 568 and therefore under § 7-433c because timely notice is a jurisdictional requirement that cannot be waived. Cuccuro v. West Haven, supra; Janco v. Fairfield, supra, 406; see also Walsh v. Waldron & Sons, 112 Conn. 579, 584, 153 A. 298 (1931). The plaintiff in the present case provided the city with written notification of his intent to seek compensation within weeks of his injury as required by § 31-294 and his form of notice contained all of the information required by that section. Indeed, the notice form he used was created by the workers' compensation commission to conform with provisions of § 31-294. Having complied with the procedures of the Workers' Compensation Act, the plaintiff simultaneously raised a § 7-433c claim, and accordingly the commissioner had jurisdiction to award him benefits under that section. The city's argument that it was misled by the plaintiff's use of a workers' compensation notice form that contained language normally associated with such claims is without merit. No separate form of notice for § 7-433c liability exists, nor is such a form necessary, as the procedures for claims under that section and chapter 568 are the same. Further, as noted by the review division, the words "hypertension" and "heart disease" used by the plaintiff in his own description of his injury were sufficient to alert the city of a § 7-433c claim. The city argues that even if the plaintiff was authorized to use the workers' compensation form, he should have explicitly stated on that form that he was proceeding under § 7-433c. Section 31-294, however, does not contain such a requirement. Rather, the statute, by providing that a claimant should state the nature of his injury in "simple language," suggests that the legislature intended the average lay person to be able to give notice of his claim without citing specific statutory provisions that would require substantial legal advice. The argument posed by the city would require otherwise. Moreover, the form of notice, created by the workers' compensation commission, tracking the language of § 31-294, did not require the plaintiff to provide such information. Accordingly, since the plaintiff filed notice of his intent to seek compensation within one year of his heart attack, meeting all of the requirements of § 31-294, the commissioner had jurisdiction to award compensation under § 7-433c. Therefore, the review division did not err in upholding the commissioner's decision denying the city's motion to open and modify the award and in dismissing its appeal. There is no error. In this opinion the other justices concurred. "[General Statutes (Rev. to 1972)] Sec. 7-433c. benefits for policemen OR FIREMEN DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR heart disease. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examina lion failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. As used in this section, the term 'municipal employer' shall have the same meaning and shall be defined as said term is defined in section 7-467." Genera! Statutes (Rev. to 1972) § 31-294 provides in relevant part: "notice of injury and of claim for compensation. Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing him, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer. No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death whichever is later. Such notice may be given to the employer or the commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or from the first manifestation of a symptom of the occupational disease, as defined herein, as the case may be, or if a voluntary agreement has been submitted within said period of one year, or if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice. . . ." Commercial Union initially notified the commissioner and the plaintiff of its intent to contest liability to pay compensation under chapter 568 on July 10, 1973. The city's motion to reargue the judgment of the review division was denied by the division on May 9, 1988. General Statutes § 31-294 sets out four exceptions where written notice of a claim is unnecessary. These exceptions are not applicable in the present appeal.

Peters, C. J. Section Ilf of the Bankruptcy Act of 1898, then 11 U.S.C. § 29f, provided for the suspension of the operation of any state statute of limitations during the pendency of bankruptcy proceedings-. The dispositive issue in this appeal is whether General Stat utes § 12-175 is a statute of limitations for the purposes of § Ilf. The plaintiff, the city of Bridgeport, commenced this tax lien foreclosure action in October, 1981, in order to foreclose tax liens filed in the period from 1968 to 1981 for municipal real property taxes for property on the Bridgeport grand lists for the years 1966 to 1979. On April 22, 1987, the trial court granted in part the plaintiffs motion for summary judgment with regard to the liens filed from 1972 to 1981. On January 11, 1988, the trial court found that the liens filed from 1968 to 1971 were also valid and, therefore, denied the defendants' motion to dismiss the action. On January 12, 1988, the trial court rendered a judgment of strict foreclosure and found that the total due for all the tax liens was $1,270,622.26. The defendants filed this appeal in the Appellate Court on January 29,1988. We transferred it here pursuant to Practice Book § 4023. We find no error. The underlying facts are not in dispute. Anthony E. Debek owned real property located at 1315-1357 Main Street in Bridgeport on which no municipal real estate taxes have been paid since June, 1967. Tax liens were filed with respect to these delinquencies each year. An involuntary bankruptcy action was filed against Debek on June 6,1975. Debek died shortly thereafter and his son, the defendant Allan C. Debek, was appointed administrator of his estate. On October 1, 1981, the United States Bankruptcy Court granted the plaintiff relief from the automatic stay of other court proceedings that had been imposed upon the bankrupt estate. The plaintiff thereupon instituted an action to foreclose the tax liens filed for the years 1966 to 1981 against the defendants Allan C. Debek, Marlene Debek, Todd J. Debek and Margaret Debek, and other parties not involved in the present appeal. On October 30, 1981, the plaintiff delivered the foreclosure complaint and summons to a deputy sheriff, who served each of the defendants involved in this appeal on November 11, 1981. The sheriff failed to make timely service on some defendants not involved in this appeal. None of the defendants filed a motion to dismiss because of insufficiency of service within thirty days of filing an appearance in the case. The trial court granted the plaintiff's motions for summary judgment over the defendants' objection that the ten year statute of limitations contained in General Statutes § 12-175 barred this action. The court concluded, furthermore, that the sheriff's delay in serving some of the parties originally named in the complaint had not deprived the court of subject matter jurisdiction. The defendants raise four claims of error. They claim that the trial court erred: (1) in ruling that only those parties not served within the requisite time period had standing to raise a claim of insufficient service of process; (2) in concluding that General Statutes § 12-175 is a statute of limitations whose operation may be extended; (3) in determining that bankruptcy law suspended the operation of the statute of limitations; and (4) consequently in determining that the total tax liens due and owing include the liens for 1966 to 1971. We find no error. I We must first consider the defendants' claim that the trial court lacked subject matter jurisdiction to entertain the plaintiff's foreclosure action because of the plaintiff's failure to serve all the defendants within fifteen days as required by General Statutes § 52-592. The trial court held that the defective service of process in this case implicated only the court's in personam jurisdiction, and thus that the defendants who had been properly served could not prevail on their belated attempt to raise defective service as a defense. Only the defendants who were properly served are parties to this appeal. The resolution of this issue presents no factual issues. The record fully substantiates the untimely service on some of the defendants, and the complaint about this defect by the remaining defendants, whose own service was entirely proper. The only issue therefore is whether the trial court correctly concluded that the sheriff's failure to effect proper service on some defendants did not deprive the court of subject matter jurisdiction. We agree with the trial court. Our precedents make it abundantly clear that, except in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction. Only last year we reiterated that " '[¿jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. . . .Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.' " (Emphasis added.) Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it. Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 559, 468 A.2d 1230 (1983); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments (1982) § 11. "Unlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver." United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); see also Insurance Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703-704, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). The trial court therefore had the jurisdiction to consider this case on its merits. II The defendants' remaining three claims are actually three aspects of a single claim that the tax liens filed in the years 1968 to 1971 are invalid and unenforceable because no foreclosure action was brought within the ten year limit stipulated by General Statutes § 12-175. The plaintiff and the defendants disagree about whether, pursuant to § Ilf of the Bankruptcy Act, Anthony Debek's intervening bankruptcy operated to toll the running of this statute. We agree with the plaintiff that the statute was tolled by the Bankruptcy Act. The defendants contend that § Ilf did not toll the running of the time period allowed by § 12-175 because, in their view, the time limitation that our statute provides is not a statute of limitations. Under § 12-175, "any tax lien . . . recorded . . . for more than ten years shall be invalid . . . unless an action of foreclosure has been commenced during such period of ten years . . . . " The defendants urge us to construe this language as manifesting the intention of our legislature to establish time constraints that operate as a condition on the enforcement of a substantive right, as a limitation on the underlying liability, rather than as a statute of limitations that merely affects the applicable remedy. They claim that § 12-175 is analogous to other statutes whose time constraints we have construed as a limitation on the underlying liability, such as our mechanic's lien statute, General Statutes § 49-39; Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); see Matter of Reardon, 10 Bankr. 697, 700 (D. Conn. 1981); and our wrongful death statute, General Statutes § 52-555. Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). The defendants also note that a federal court has construed a time limitation in the Washington mechanic's lien statute to fall outside of the suspension provisions of § Ilf. In re Warren, 192 F. Sup. 801, 803 (W.D. Wash. 1961). The defendants may well be right that, for some purposes, § 12-175 is so intimately connected with the statutory creation of municipal tax liens in General Statutes § 12-172 that the time limitations it contains should be construed as substantive limitations on the rights conferred rather than as procedural limitations on available remedies. If that is the appropriate characterization of the statute, then as "a limitation upon the right of action it must be strictly complied with." DeMartino v. Siemon, 90 Conn. 527, 529, 97 A. 765 (1916). The question before us, however, is not what effect to give to § 12-175 under ordinary commercial circumstances. We must decide instead how this statute fits into the prescriptions of the federal law of bankruptcy. Our analysis of this issue must start with the recognition that, because of the plenary power over bankruptcy that the United States constitution grants to the federal government; U.S. Const., art. 1, § 8, cl. 4; Congress unquestionably had the power to provide that the filing of a bankruptcy petition tolls time limitations such as those provided by § 12-175. To the extent a state statute and the Bankruptcy Act conflict, the latter governs. Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U.S. 78, 83, 63 S. Ct. 93, 87 L. Ed. 64, reh. denied, 317 U.S. 710, 63 S. Ct. 254, 87 L. Ed. 566 (1942); Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S. Ct. 343, 84 L. Ed. 370 (1940); West Coast Life Ins. Co. v. Merced Irrigation District, 114 F.2d 654, 664 (9th Cir. 1940). The question therefore becomes whether the Congress, in enacting § Ilf, which provides that the filing of a petition in bankruptcy suspends the operation "of any statute of limitations of . . . any State," intended to encompass time limitations such as those contained in § 12-175. In order to determine the intent of Congress, we look to the statutory language itself, to see whether it yields a plain and unambiguous answer; if the statute does not on its face lead to a definitive resolution, we turn for guidance to the purpose that the statute was intended to serve, and to the role of this statute within the overall statutory scheme of the Bank ruptcy Act. Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 451, 541 A.2d 1226 (1988); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988). Examination of the relevant language of the Bankruptcy Act discloses that, although § 1 of the act provides many definitions, the phrase "statute of limitations" that appears in § Ilf is not defined either there or elsewhere in the act. As a point of departure, we may therefore assume that the Congress intended to use the phrase as it is normally defined. Black's Law Dictionary states that a "statute of limitations" is "[a] statute prescribing limitations to the right of action on certain described causes of action . . . that is, declaring that no suit shall be maintained on such causes of action . . . unless brought within a specified period of time after the right accrued. Statutes of limitation are statutes of repose, and are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced." Black's Law Dictionary (5th Ed. 1979). On its face, § 12-175's limitations on the right to foreclose tax liens appear to satisfy this definition, which makes no distinction between substantive and procedural limitations on rights of recovery. A broad definition of "statute of limitations," for bankruptcy purposes, is consistent, furthermore, with the purpose that § Ilf was intended to serve. The suspension of the running of applicable statutes of limitations is an essential counterpart of the automatic stay, which is " 'one of the fundamental debtor protections provided by the bankruptcy laws.' " Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 503, 106 S. Ct. 755, 88 L. Ed. 2d 859, reh. denied, 457 U.S. 1090, 106 S. Ct. 1482, 89 L. Ed. 2d 736 (1986); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. (1977), reprinted in L. King, Collier on Bankruptcy (15th Ed.), app. 2, pp. 341-42. Under Bankruptcy Rule 601 (a), enacted to implement § 148 of the Bankruptcy Act, the filing of a petition in bankruptcy operates as "a stay of any act or the commencement or continuation of any court proceeding" to enforce a lien against the bankrupt. N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 530, 104 S. Ct. 1188, 79 L. Ed. 2d 482 (1983). The stay provides a "sanctuary from the jungle of creditors' pursuit of their individualistic collection efforts" in order to safeguard "[t]he primary function of the bankruptcy system . . . to continue the law-based orderliness of the open credit economy in the event of a debtor's inability or unwillingness generally to pay his debts." Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess., Pts. I and II (1973), reprinted in L. King, supra, app. 2, c. 3, p. 71. The Bankruptcy Act is rooted in equitable principles. Bank of Marin v. England, 385 U.S. 99, 103, 87 S. Ct. 274, 17 L. Ed. 2d 197 (1966); Pepper v. Litton, 308 U.S. 295, 304-305, 60 S. Ct. 238, 84 L. Ed. 2d 281 (1939). It is likely that the Congress, having provided the debtor with a stay to protect his interests, would have intended the creditor to have coextensive rights to revive causes of action that were unenforceable while the bankruptcy stay was in effect. The defendants in this case have not suggested that, once bankruptcy intervened in 1975, the plaintiff would have been able to foreclose on its tax liens at any time before October 1,1981, when, at its request, the stay was lifted by action of the Bank ruptcy Court. In these circumstances, it is only equitable to construe "statute of limitations" in § Ilf to encompass the provisions of § 12-175. A broad construction of § Ilf finds further support in the legislative history of the enactment of § 108 of the Bankruptcy Code, the 1978 successor to § Ilf of the Bankruptcy Act. Although the new section is on its face more expansive than the old, the drafters apparently believed that the phrase "statute of limitations" as used in the Bankruptcy Act had always referred to statutes that limit thé right to bring an action generally, as opposed to a narrowly defined class of purely procedural limitations on actions. The Commission on the Bankruptcy Laws of the United States in comments to the proposed section (then numbered § 4-102 [b]) stated that the section "is derived from § Ilf of the present Act but reaches to unexpired periods of limi tation imposed by agreement or orders entered in other proceedings as well as to those imposed by law . . . ." Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess., Pt. II (1973), reprinted in L. King, supra, app. 2, c. 4, p. 69. Although the drafters commented expressly on the wisdom of extending § Ilf of the act to include limitations other than those imposed by law, they apparently perceived no difference between the former language referring to a suspension of a "statute of limitations" and the new language referring to a "time fixed for commencing an action." This perception is reenforced by statements made both in the House of Representatives Report on the proposed code, which describes § 108 (c) as extending "the statute of limitations for creditors" (emphasis added); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. (1977), reprinted in L. King, supra, app. 2, p. 318; and in the explanations of the compromise bill by House and Senate floor managers which characterize § 108 (c) as "expressly including] any special suspensions of statutes of limitations periods . . . . " (Emphasis added.) The House Debate on Compromise Bill, 124 Cong. Rec. H11109 (daily ed. September 28,1978), reprinted in L. King, supra, app. 3, c. 9, p. 127. All the available indicia thus point to an interpretation of the phrase "statute of limitations" in § Ilf, as a matter of federal law, as a broad reference to state-enacted time constraints, such as § 12-175, without regard to whether such time constraints might, in other circumstances, be viewed as substantive rather than as procedural. Indeed, we have ourselves, as a matter of nomenclature, recognized a linguistic overlap between substantive limitations and statutes of limitations. For example, in Diamond National Corporation v. Dwelle, supra, we stated: "Generally, 'limitations on actions . . . are considered procedural or personal and thus subject to waiver . This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available. . . . Such is not considered to be the case, however, where a specific limitation is contained in the statute which establishes the remedy. Here the remedy exists only during the prescribed period and not thereafter. . . . In such situations the Statute of Limitations is considered substantive . . . . ' " (Emphasis added.) Id., 546-47 (holding statute of limitations in statute creating mechanics' liens substantive), quoting Matter of Benjamin v. State Liquor Authority, 17 App. Div. 2d 71, 73, 230 N.Y.S.2d 888, rev'd on other grounds, 13 N.Y.2d 227, 195 N.E.2d 889 (1947). As a general matter, as the trial court held, we have defined a statute of limitations as a bar to the maintenance of an action. Simonelli v. Fitzgerald, 156 Conn. 49, 53, 238 A.2d 418 (1968); Arnold v. Hollister, 131 Conn. 34, 38, 37 A.2d 695 (1944). The wording of § 12-175 fits within this broad definition because § 12-175 imposes a bar to the maintenance of an action involving tax liens recorded on private property in the land records of the town for more than ten years. Finally, our conclusion that the phrase "statute of limitations" in § Ilf encompasses the limitations upon suit contained in § 12-175 is buttressed by the analogous holdings of courts in other jurisdictions. Other courts have held that debts valid and enforceable at the time of the filing of a bankruptcy petition retain their validity during the course of the bankruptcy proceedings; In re Berg, 33 F. Sup. 700, 702 (D. Minn. 1940); and "have held generally that the filing of a petition in bankruptcy excused the taking of further action under state law to enforce liens." In re Etherton, 88 F. Sup. 874, 879 n.15 (S.D. Cal. 1950); see also Martin v. Goggin, 107 Cal. App. 2d 688, 238 P.2d 84 (1951). As the court stated in In re Etherton, supra, 879, where a claimant's only remedy under state law was to foreclose or to sue, "[h]e, having been prevented from doing so by the effect of a federal statute, the statute of limitation has not run even now." In re Warren, supra, on which the defendants rely, is distinguishable. That court, noting that § Ilf suspends statutes "affecting the debts of a bankrupt," construed the time limitation in the relevant state mechanic's lien statute as affecting only the security for the underlying debt, rather than the enforceability of the debt itself. Id., 804. The trial court's ruling that the plaintiff's cause of action was not time-barred was therefore correct. There is no error. In this opinion the other justices concurred. Title 11 of the United States Code, § 29f, the Bankruptcy Act of 1898, § Ilf, provided: "The operation of any statute of limitations of the United States or of any State, affecting the debts of a bankrupt provable under this Act, shall be suspended during the period from the date of the filing of the petition in bankruptcy (1) until the expiration of thirty days after the date of the entry of an order denying his discharge; or (2) expiration of thirty days after the filing of such waiver or loss of such right . . . or (8) until thirty days after the dismissal of the bankruptcy proceedings, whichever may first occur." Although the Bankruptcy Act of 1898 was replaced by the Bankruptcy Code in 1978, § 403 (a) of the Bankruptcy Reform Act; 11 U.S.C. § 101, preceding note; preserves the applicability of the Bankruptcy Act to these proceedings because the bankruptcy petition in this case was filed in 1975. Section 403 (a) provides that "[a] case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if this Act had not been enacted, and the substantive rights of parties . . . shall continue to be governed by the law applicable to such case, matter, or proceeding as if the Act had not been enacted." General Statutes (Rev. to 1981) § 12-175 provides in pertinent part: "[A]ny tax lien upon private property which has been recorded in the land records of any town for more than ten years shall be invalid, and such property shall be free from the encumbrance of such lien, unless an action of foreclosure has been commenced during such period of ten years and a notice of lis pendens filed for record, and the town clerk shall, if no such notice has been filed, upon the request of any interested person, discharge such lien of record by noting on the margin of such record the words, 'Discharged by operation of law.' " At oral argument in this court, the defendants withdrew two other claims of error. Practice Book § 144 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . within the time provided by Sec. 142 [within thirty days of the filing of an appearance]." Although the foreclosure judgment covered other years as well, only the tax liens filed prior to 1971, for the grand lists of 1966 to 1969, are at issue in the present appeal. These tax liens were filed on April 1,1968, April 1, 1969, April 1, 1970, March 30, 1971, and June 30, 1971, respectively. All of them were timely filed before the initiation of bankruptcy proceedings. The defendants' claim of error with regard to "liens filed for 1966-1971" raises no independent questions of law with regard to these tax assessments per se. "[General Statutes] Sec. 49-39. time limitation of mechanic's lien, action to foreclose privileged. A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pen-dens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid; shall be invalid and discharged as a matter of law. An action to foreclose a mechanic's lien shall be privileged in respect to assignment for trial. With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation." General Statutes § 52-555 provides in relevant part: "In any action surviving to or brought by an executor or administrator for injuries resulting in death . . . such executor or administrator may recover from the party legally at fault for such injuries just damages . . . provided no action shall be brought . . . but within two years from the date when the injury is first sustained or discovered....." General Statutes § 12-172, which provides for the creation of municipal tax liens, states: "tax liens; precedence; enforcement. The interest of each person in each item of real estate, which has been legally set in his assessment list, shall be subject to a lien for that part of his taxes laid upon the valuation of such interest, as found in such list when finally completed, as such part may be increased by interest, fees and charges. Such lien, unless otherwise specially provided by law, shall exist from the first day of October or other assessment date of the municipality in the year previous to that in which such tax, or the first instalment thereof, became due until one year after such tax or first instalment thereof became due and, during its existence, shall take precedence of all transfers and encumbrances in any manner affecting such interest in such item, or any part of it. Such lien, during its existence, may be enforced by levy and sale of such real estate if such person has complete title thereto or of his interest in such real estate if he does not have complete title thereto. No sale of real estate for taxes or foreclosure of any lien shall divest the estate sold of any existing lien for other taxes." The right only to continue the existence of a lien created pursuant to § 12-172 beyond one year after such tax or first installment becomes due is provided by General Statutes § 12-175. The constitution of the United States, article first, § 8, clause 4, provides in part: "To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . ." Rules of Bankruptcy Procedure (1976), Rule 601 (a) provides in pertinent part: "The filing of a petition shall operate as a stay of any act or the commencement or continuation of any court proceeding to enforce (1) a lien against property in the custody of the bankruptcy court, or (2) a lien against the property of the bankrupt obtained within 4 months before bankruptcy . . . . " The plaintiff pursued the appropriate course of action by filing for relief from the automatic stay in order to foreclose the liens. The city should not have to choose between seeking foreclosure upon tax liens in violation of federal law and foregoing revenues legitimately owed by the bankrupt. Title 11 of the United States Code (1986 Sup.), § 108 provides in pertinent part: "(c) Except as provided in § 524 of this title, if applicable non-bankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, or 1301 of this title, as the case may be, with respect to such claim." Section 4-102 read: "extensions for creditors. Where by agreement, order entered in any proceeding, or other applicable law, a time is fixed for commencing an action on a claim against the debtor that has not expired at the date of the petition under this Act, such time shall be suspended until 30 days after the stay of the commencement of an action on such claim under section 4-501 has been terminated or has expired." Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess., Pt. II, reprinted in L. King, Collier on Bankruptcy (15th Ed.) app. 2, c. 4, p. 68. We note that the defendants in this case have not argued that General Statutes § 12-175 affects only the security for the underlying debt, presumably because of the terms of our municipal tax lien statutes. See footnote 8, supra.

Covello, J. The defendant, Marshall Crenshaw, appeals from his conviction of murder in violation of General Statutes § SSa-Ma. The relevant facts are as follows. On April 21, 1985, the defendant was arrested and charged with the murder of his ten month old daughter, Dale-Lyn Nichole Crenshaw. Following a hearing in probable cause, the defendant pleaded not guilty and elected to be tried by a jury. On December 16, 1985, the trial court, Stoughton, J., ordered a competency evaluation for the defendant pursuant to General Statutes § 54-56d. The evaluation was conducted by a clinical team from the department of mental health comprised of a psychiatrist, a pyschiatric social worker and a psychologist. In its report to the court, the team was unanimous in its opinion that the "defendant's presumption of competency has been sustained through this examination, and that he both understands the legal proceedings against him and can cooperate with counsel in his own defense." On December 31, 1985, the trial court, Barall, J., ruled that the defendant was competent to stand trial. On March 21,1986, the defendant's counsel, Richard Kelly, filed a motion to withdraw from the case. Attorney Kelly informed the court that if he were "forced to proceed in this particular case, it may well be placing counsel in an irreconcilable ethical conflict." The trial court, Barall, J., denied this motion. On April 17,1986, two days after the trial began, the defendant pleaded guilty to murder under the doctrine established in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A plea canvass followed. On April 21, 1986, the defendant filed a pro se motion seeking to withdraw his prior guilty plea, electing a trial and requesting the appointment of a special public defender. The trial court, Quinn, J., denied this motion. On May 14,1986, the trial court granted the defendant's motion requesting a diagnostic psychiatric examination pursuant to General Statutes § 17-244. A diagnostic team at the Whiting Forensic Institute concluded that the defendant "was not mentally ill to an extent that he posed a danger to himself or to others. The team decline[d] to recommend probation and returned] the defendant for sentencing in accordance with his conviction." On August 20, 1986, the trial court, Quinn, J., sentenced the defendant to a term of twenty-five years of incarceration. The defendant claims on appeal that the trial court erred in: (1) denying his motion to withdraw his guilty plea; (2) failing to conduct an evidentiary hearing to determine the factual basis for his motion to withdraw his guilty plea; and (3) denying defense counsel's request to withdraw from the case. We find no error. I The defendant first claims that the trial court erred in denying his motion to withdraw his guilty plea. Practice Book § 721 specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. "[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion." Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974) . "The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty." State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975) . The defendant argues that he did not intelligently and voluntarily enter his plea because at the time he entered it he was simply following his attorney's instructions and did not understand that he would receive a minimum sentence of twenty-five years. He claims, therefore, that he has a plausible reason for withdrawing his plea. We disagree. Due process requires that a plea be entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S 238, 243 n.5, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). "Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea." State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986). "A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances." State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988). The trial court, Quinn, J., canvassed the defendant concerning the voluntariness of his plea pursuant to Practice Book § 711 through 713 and Boykin v. Ala bama, supra. This canvass "necessarily implies that [the trial court] has made an inquiry into the defendant's competence to plead." State v. Watson, supra. An examination of the plea canvass reveals the following: The defendant entered an Alford plea. The defendant explained to the court that an Alford plea "means that they have enough evidence against you." The court expanded upon the defendant's definition and asked him if he had discussed this with his attorney. The defendant said that he had and that he was satisfied with the advice that his attorney had given him. The court then asked the defendant if he understood that he was giving up his right to a trial by court or jury, along with his right to face and cross-examine witnesses against him, and to bring in any witnesses to testify on his behalf, and that by entering this plea he was incriminating himself and waiving his right against self-incrimination. The defendant responded that he understood the ramifications involved. The state's attorney then delineated the factual basis that would be produced to establish the defendant's guilt. The court then asked the defendant if he was familiar with the maximum penalty that the court could impose on a conviction of murder in the first degree. The defendant responded that it was "sixty-years." The court then asked the defendant if he understood what the minimum sentence would be. He responded that it would be "twenty-five." The court then read the defendant the definition of murder. Finally the court asked the state if there was an agreement as to the penalty to be imposed. The state informed the court that it would be making a recommendation at the time of sentencing of twenty-five years. The defendant stated, in response to the court's inquiry, that he knew this at the time he entered his plea. The defendant also informed the court that he was not under any threats to plead guilty, that his attorney had been a "great lawyer" and had done everything possible to protect his interests. In concluding the plea hearing, the court stated that it "will make a finding that [the defendant] has been advised by competent counsel, he understands his constitutional rights and has waived those rights. He understands fully that he has a right to a trial by Court or jury and has waived it." On April 21,1986, the defendant mailed to the court a pro se motion to withdraw his guilty plea. In that motion he stated that he had not intelligently and competently entered his plea and that his attorney had led him astray. The defendant claimed that he had been led to believe that he would receive substantially less than the twenty-five year sentence. On May 7, 1986, a hearing was held on this motion and the trial court, Quinn, J., subsequently denied it. A review of all the relevant circumstances clearly indicates that the defendant had intelligently and voluntarily entered his Alford plea. The trial court's determination on December 31,1985, that he was competent to stand trial, lays to rest any question about the defendant's capacity to comprehend the charges against him and the consequences of his plea. Furthermore, aside from his bald assertion, the defendant produced no evidence that he was simply following his attorney's instructions when he entered his plea. "It is not enough for the defendant to claim that he was told what to say by his lawyer. To warrant consideration, the defendant must allege and provide facts which would justify permitting him to withdraw his plea . . . . " State v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982). Finally, the record does not support the defendant's claim that he was confused at the time he entered the plea. Significantly, it was the defendant and not the trial court who first mentioned that the minimum sentence for a conviction of murder is twenty-five years. Additionally, the defendant told the court that he knew that the state would be recommending a twenty-five year prison term and that he had known this at the time he entered his plea. We are therefore unpersuaded when he now claims that he did not understand that he would receive a twenty-five year sentence. II The defendant next claims that the trial court erred in failing to hold an evidentiary hearing on his motion to withdraw his guilty plea. He argues that the voluntariness of his plea is questionable in light of his mental capabilities and the inadequacy of the trial court record. We disagree. "For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [Practice Book] § 721, and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required." State v. Torres, 182 Conn. 176, 185-86, 438 A.2d 46 (1980). In light of the record of the plea canvass, the hearing on the motion to withdraw the plea, and examination of the court file, we conclude that the defendant's claim of error is conclusively refuted within the meaning of State v. Torres, supra. The trial court conducted a complete canvass in accordance with the rules of practice and was satisfied that the defendant's plea had been knowingly and voluntarily entered. As noted above, the defendant's dialogue with the trial court at the plea canvass furnishes a more than adequate basis for determining his full understanding of his plea and its ramifications. Finally, three months prior to the defendant entering his plea, the trial court ordered the commissioner of mental health to effect a competency examination on the defendant. In a unanimous opinion a clinical team found that the defendant "both understands the legal proceedings against him and can cooperate with counsel in his own defense." In light of this evaluation, we are unpersuaded that the trial court had an insufficient record upon which to base its decision. We find, therefore, that the defendant failed "to sustain his burden of coming forward with sufficiently specific unrefuted factual allegations to require an evidentiary inquiry into his alleged incompetence at the time of the acceptance of his guilty [plea]." State v. Watson, supra, 613-14. Accordingly, we find no error. Ill The defendant next claims that the trial court erred in denying his attorney's motion to withdraw from the case. The defendant argues that as a result, he did not receive representation free of conflict because his attorney believed him guilty. He further claims that his counsel was ineffective in his representation. We reject both claims. "Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Festo, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983). The record here is clear that the reason Attorney Kelly asked to withdraw from the case was not because he believed that the defendant was guilty as the defendant claims, but because the defendant had told him that he, the defendant, wanted to perjure himself on the witness stand. Any conflict which may have existed between the defendant and his attorney "was one imposed on the attorney by the client's proposal to commit the crime of fabricating testimony . . . . " Nix v. Whiteside, 475 U.S. 157, 173, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). Such a conflict, when created by the defendant, does not require the appointment of new counsel. See State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987); State v. Drakeford, 202 Conn. 75, 84, 518 A.2d 1194 (1987). As the trial court noted, any counsel representing the defendant would have been confronted with the same dilemma. Allowing this attorney, and then all subsequent attorneys, to withdraw from this case would have impaired the defendant's right to be represented by counsel. This we cannot condone. "Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court." State v. Gonzalez, supra, 683. "[Ajbsent a factual record revealing an abuse of [the court's] discretion, the court's failure to allow new counsel is not reversible error." State v. Drakeford, supra, 83; El Idrissi v. El Idrissi, 173 Conn. 295, 302-303, 377 A.2d 330 (1977). We note that the motion to withdraw was made and denied in advance of the defendant's trial. Later, at the time of the plea canvass, the defendant expressed his complete satisfaction with the advice he had received from his attorney. We conclude, therefore, that the trial court did not abuse its broad discretion in denying defense counsel's request to withdraw and the defendant was not thereby prejudiced. The defendant's further claim of ineffective assistance of counsel is inappropriate on a direct appeal. Such claims are properly pursued on a petition for a writ of habeas corpus, or on a petition for a new trial. State v. Williamson, 206 Conn. 685, 707, 539 A.2d 561 (1988); State v. Gonzalez, supra; State v. Tirado, 194 Conn. 89, 92-93, 478 A.2d 606 (1984); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982). Accordingly, we do not consider it. We find no error. In this opinion the other justices concurred. General Statutes § 53a-54a provides: "murder defined, affirmative defenses, evidence of mental condition, classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant 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), on the question of whether the defendant acted with intent to cause the death of another person. "(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony." General Statutes § 54-56d provides in part: "competency to stand trial, (a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense." Attorney Kelly submitted to the court the following written statement: "I will represent the following to Judge Barall in chambers: 1. that Marshall Crenshaw has told me and others employed by the defense, on more than one occasion, that he committed the acts that caused the death of DaleLyn; 2. that on 3/18/86, at a conference which I had with Marshall Crenshaw at the Hartford Correctional Center, I was told by Marshall Crenshaw that he intends to testify in his trial that he did not do any of the acts that caused the death of Dale-Lyn and, rather, that Dale-Lyn's death was caused by one Susan Lard." "An Alford plea allows a defendant in a criminal case to consent to punishment as if he were guilty without his express acknowledgment of his guilt." State v. Watson, 198 Conn. 598, 601 n.3, 504 A.2d 497 (1986). General Statutes § 17-244 provides: "certain convicted persons to be examined, report and recommendation, (a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the institute or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant. "(b) The request for such examination may be made by the state's attorney or assistant state's attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. If the court orders such examination, a copy of the examination order shall be served upon the defendant to be examined. "(c) Upon completion of the physical and psychiatric examination of the defendant, but not later than sixty days after admission to the diagnostic unit, a written report of the results thereof shall be filed in quadruplicate with the clerk of the court before which he was convicted, and such clerk shall cause copies to be delivered to the state's attorney, to counsel for the defendant and to the office of adult probation. "(d) Such report shall include the following: (1) A description of the nature of the examination: (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute; and (4) a recommendation as to whether the defendant should be sentenced in accordance with the conviction, sentenced in accordance with conviction and confined in the institute for custody, care and treatment, placed on probation by the court or placed on probation by the court with the requirement, as a condition to probation, that he receive outpatient psychiatric treatment." Practice Book § 721 provides: "—grounds "The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: "(1) The plea was accepted without substantial compliance with Sec. 711; "(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; "(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; "(4) The plea resulted from the denial of effective assistance of counsel; "(5) There was no factual basis for the plea; or "(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant." The trial court stated: "Essentially that is true. Let me ask you some questions and maybe we can clarify it. What you're telling this Court is that you're entering this plea of guilty because you feel that if the State were to proceed and present evidence to a jury against you, that the probability would be that the jury would find you guilty of the charges, is that correct?" The defendant responded, "Yes, your Honor." The state proffered the following factual basis for the plea: On April 20, 1985, the defendant and his ten month old daughter were in their apartment at 40 Olcott Street in Manchester. While the child's mother was out of the apartment the defendant suffocated his daughter by pushing her head into the mattress of her crib.

Per Curiam. This appeal was taken from a judgment of the Court of Common Pleas which denied the plaintiff's petition for a writ of mandamus to require the defendant town clerk to issue certification of petitions for a referendum for a special election to approve or reject legislation adopted by the Trumbull town council. The Trumbull town charter makes provision for such a referendum upon the filing with the town clerk of a petition signed by at least 10 percent of the electors requesting that "such specific legislative action" be submitted to a referendum, and that referendum petitions "need not contain the text of the specific measure sought to be rejected but the substance of such specific measure shall be set forth therein." The charter also provides that each page of a petition shall contain a statement, signed under penalties of perjury by the person who circulated the same, containing the circulator's name and address as well as further information and that "[a]ny page of a petition which does not contain such a statement by the circulator shall be invalid." The record discloses that on October 30,1972, the town council adopted two separate legislative acts. One appropriated funds for the construction of a central library building. Another appropriated funds for the construction of a golf course. The petitions submitted to the town clerk did not ask for a separate referendum on each of the two legislative acts but petitioned "that the action taken by the Trumbull Town Council on Monday, October 30, 1972 in appropriating the funding for the central library and the golf course in the amounts of $985,000 and $800,000, respectively, be placed on ballot for referendum to enable the electors to register an approval or disapproval of this action." Furthermore, the petitions did not contain the required statement of the circulator. The town clerk was authorized by the town charter to certify whether the petitions were "sufficient for the purpose intended." She certified that they were not sufficient and the plaintiff in the present action sought a writ of mandamus ordering her to issue certification and submit "the measures" to a special election. The court concluded that two separate and distinct legislative actions were improperly joined in a single petition, that the petition was invalid since it did not contain the certificate of the circulator, and that the plaintiff had failed to offer any evidence and thus failed to prove that there was a clear, legal duty owed to him which the defendant had failed to perform. It, accordingly, denied the petition for a writ of mandamus. The record amply supports the findings and conclusions of the court. There is no error.

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